Smith v. Harris

• Citation: 644 F.2d 985
• Decision Date: 02 December 1980
• Docket Number: No. 80-1923,80-1923
• Parties: Natalie F. SMITH, Widow of Dennis A. Smith, Deceased, Appellant, v. Patricia HARRIS, Secretary of Health, Education and Welfare, Appellee. . Submitted under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 985

644 F.2d 985

Natalie F. SMITH, Widow of Dennis A. Smith, Deceased, Appellant, v. Patricia HARRIS, Secretary of Health, Education and Welfare, Appellee.

No. 80-1923.

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit Rule 12(6) Dec. 2, 1980.

Decided March 23, 1981.

Joel N. Kreizman, Evans, Koelzer, Marriott, Osborne & Kreizman, Red Bank, N. J., for appellant.

Maryanne T. Desmond and Lorraine S. Gerson, Asst. U. S. Attys., Robert J. Tufo, U. S. Atty., Newark, N. J., for appellee.

Before ALDISERT, HUNTER and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

Dennis A. Smith claims he was entitled to disability insurance benefits under 42 U.S.C. § 223(d) for a disability period under 42 U.S.C. § 216(i) of the Social Security Act (the Act). ¹ Smith's claim for disability was denied by the Administrative Law Judge (ALJ) in an opinion after a hearing at which Smith waived his right to counsel. The district court ruled that the ALJ's decision was supported by substantial evidence. On this appeal, the issue is whether under the facts of this case it was reversible error for the district court to have failed to remand this claim to the Secretary of Health, Education and Welfare (the Secretary) when it found that the ALJ inadequately considered claimant's pain. We conclude that the district judge was in error and will vacate the judgment with direction to the district court to remand this case to the ALJ for further consideration.

I.

Dennis A. Smith was a 53 year old male who alleged he was disabled as of November 11, 1977 due to "otological impairments, bundle block of the heart, cataracts in eye, (and) blindness in one eye." Claimant met the insured status requirements of the Act. The record shows that claimant completed the eighth grade and received training as a boiler operator in trade school. He was employed for fifteen years as head custodian in a school. In this capacity, he performed numerous maintenance tasks.

In various interviews for his disability benefits, claimant stated that in 1975, subsequent to a tonsillectomy, he developed a hearing problem. He asserted that he experienced a "hissing and pulsating tinnitus in his left ear." ² Furthermore, he alleged that he ceased to work in February of 1976 because the noise was "too annoying to work under." Smith complained of "almost constant deafening noise" and he claimed that "all sounds (were) greatly magnified the hum of a refrigerator motor (was) a roar."

In January of 1977, claimant was examined by Dr. Robert Peterson. At that time, Smith suffered from hazy vision and had trouble reading. Dr. Peterson stated that claimant had "light reception" in his left eye only and that, due to an incipent cataract, vision in his right eye was deteriorating. However, though Dr. Peterson expected Smith's vision to deteriorate and recommended surgery, he nonetheless believed that vision in Smith's right eye was correctable to 20 over 30. On November 27, 1977, and November 19, 1978, Dr. Richard H. Demaree, a general practitioner, examined Smith and diagnosed severe tinnitus (ringing, buzzing, roaring sounds) in the left ear and a bundle block in the heart.

In his last interview, in his Report of Continuing Disability, Smith commented that "I anticipate my vision problem will be corrected by surgery on August 17th, but my main problem (the ringing and hissing in his ears) has not improved at all." In addition, he indicated that his main complaint was "not loss of equilibrium but almost constant deafening noise (hissing, ringing and magnified sounds.)" Finally, claimant alleged this constant deafening noise made "me unable to concentrate on anything else."

On January 26, 1978, Dr. Jay Kern, a gastroenterologist, examined Smith and he found impaired vision and an inability to tolerate high noise levels.

On June 15, 1978, Dr. Julio T. Noquera, an otolaryngologist, examined the claimant. On the basis of diagnostic tests he concluded that Smith had a loss of hearing in both ears and diagnosed the ringing sound in Smith's ears as a hearing loss related to an inability to hear high frequencies. He noted, however, that Smith's capacity to hear speech was normal.

Mr. Bernard Orr, a vocational expert, stated in the record that "if Smith's complaints were true, there were absolutely no jobs he could perform." However, he stated that if Smith retained the residual functional capacity to perform sedentary and light work, he had the residual vocational capacity to perform jobs including bench assembler, ticket taker, cashier, and front desk clerk, since all of these jobs are performed in relatively quiet areas.

II.

On November 11, 1977, claimant applied for disability insurance benefits. The application was denied both initially and upon reconsideration. Smith requested a hearing before an ALJ and a hearing was scheduled for November 7, 1978. No one appeared for or represented Mr. Smith at the administrative hearing. The circumstances under which he did not appear are unclear. It is established that Mr. Smith did request a hearing, but on November 2, 1978 he requested a postponement on a form provided by the Social Security Administration stating he was "under doctor's care urinary problems plus not released from eye surgeon from surgery on Aug. 17, 1978." There is a letter in the file from Mr. Smith to the hearing examiner stating that following a telephone conversation with "Edna Wood from your office I wish to advise you that I waive my right to attend a hearing." There is no indication in the record as to what was said in the conversation with Edna Wood, but it is clear that Mr. Smith was persuaded to alter his prior postponement request. Whether or not an attorney would have permitted such waiver or would have allowed Mr. Smith to be persuaded to withdraw his postponement request is conjectural.

The ALJ considered the case de novo without any oral testimony, and on January 15, 1979, found that Smith retained the residual functional capacity to perform light and sedentary jobs existing in substantial numbers in the local and national economy, and ruled that he was not disabled within the meaning of the Act. On March 5, 1979, Smith died, seven weeks after the ALJ's decision. The ALJ's ruling became the Secretary's final decision on June 18, 1979. Thereafter, pursuant to § 205(g) of the Act, Natalie F. Smith, widow of Dennis G. Smith, appealed to the district court for review of the Secretary's final determination, seeking the disability benefits allegedly due her deceased husband under § 204(d) of the Act, 42 U.S.C. § 404(d). The district court found that the Secretary's ruling was supported by substantial evidence even though the ALJ had inadequately considered the claimant's pain, and as a consequence, affirmed the Secretary's decision.

III.

In a thoughtful opinion, the learned district judge noted all of the proper precepts as to the standard of review of the Secretary's finding. Since so much has been written noting the restraints on and the standards for both district judges and courts of appeals in reviewing the Secretary's findings, these precepts need not be repeated here. See generally Cotter v. Harris, 642 F.2d 700, No. 80-2027 (3d Cir. February 20, 1981); Smith v. Califano, 637 F.2d 968 (3d Cir. January 13, 1981); Livingston v. Califano, 614 F.2d 342 (1980); Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir. 1979); Hargenrader v. Califano, 575 F.2d 434 (3d Cir. 1978).

The district court recognized that pain by itself can be a disabling condition. Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974), cert. denied, 420 U.S. 931, 95 S.Ct. 1133, 43 L.Ed.2d 403 (1975). Further, it found that the ALJ "inadequately addressed Smith's subjective complaints of pain." Indeed, the court stated that "(o)rdinarily, this would necessitate a remand but such an order would be futile in this case because the death of Smith has made further fact finding impossible." Id. at App. 8. The district judge's statement that it would be futile to remand because of Smith's death is predicated on the assumption that it is impossible to present subjective evidence of pain when the original claimant is deceased. While, of course, ALJ's do not have the power to resurrect the dead, nevertheless they can receive evidence from third parties and particularly doctors, family members and health personnel when the complaints of a deceased claimant and acts of the claimant corroborate the inference of subjective pain. In fact, in Baerga, this court observed as follows:

In addition to objective medical facts and expert medical opinions, the Hearing Examiner must consider the claimant's subjective evidence of pain and disability, as corroborated by family and neighbors ; and all of these factors must be viewed against the applicant's age, educational background and work experience."

500 F.2d at 312 (Emphasis added) (quoting Mode v. Celebrezzi, 359 F.2d 135, 136 (4th Cir. 1966)). When the plaintiff in personal injury cases is deceased, the trial court routinely receives evidence from family, doctors and neighbors as a basis for damage awards for the pain and suffering which a party endured prior to death. We see no reason why the widow of a claimant would have any less rights before an ALJ or have a less sympathetic fact finder than one encounters routinely in a trial court in personal injury cases.

As Judge Adams recently noted in Dobrowolsky v. Califano, 606 F.2d at 406-7:

This court has ... emphasized (on numerous occasions) that the special nature of proceedings for disability benefits dictates extra care on the part of the agency in developing an administrative record and in explicitly weighing all evidence. We have pointed out that "(a) hearing on an application...