Smith v. Weinberger, Civ. No. B-74-922.

• Decision Date: 28 May 1975
• Docket Number: Civ. No. B-74-922.
• Parties: Rose L. SMITH v. Caspar W. WEINBERGER, Secretary, Department of Health, Education and Welfare.
• Court: U.S. District Court — District of Maryland

394 F. Supp. 1002

Rose L. SMITH v. Caspar W. WEINBERGER, Secretary, Department of Health, Education and Welfare.

Civ. No. B-74-922.

United States District Court, D. Maryland.

May 28, 1975.

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C. Christopher Brown, Legal Aid Bureau, Inc., Baltimore, Md., for plaintiff.

Jervis S. Finney, U. S. Atty., and Thomas L. Crowe, Asst. U. S. Atty., Baltimore, Md., for defendant.

MEMORANDUM

BLAIR, District Judge.

Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for review of a final decision by the Secretary of Health, Education, and Welfare denying her claim for disability insurance benefits. Plaintiff claims that the Secretary's decision finding no disability is not supported by substantial evidence. Both sides have moved for summary judgment. Alternatively, plaintiff has moved for a remand.

Plaintiff filed her application for a period of disability and disability insurance on July 28, 1972. After a de novo hearing before an administrative law judge on January 8, 1974, the judge found that plaintiff was not under a physical or mental impairment sufficiently severe to prevent her from engaging in substantial gainful activity on or before September 30, 1967—the date she last met the special earnings requirement. Accordingly, the administrative judge found that plaintiff was not "disabled" within the meaning of the Social Security Act and therefore held that she was not entitled to benefits. This decision was approved by the Appeals Council on August 6, 1974, and thus became the final decision of the Secretary for purposes of judicial review.

Section 405(g) provides that "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . .." 42 U.S.C. § 405(g) (1970). Hence, judicial review is limited to whether the Secretary applied the correct legal standards, Knox v. Finch, 427 F.2d 919 (5th Cir. 1970), and whether the decision is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). "Substantial evidence" has been defined as more than a scintilla but less than a preponderance. Id. at 776. "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Further, while the court may not try the case de novo, "the Court must not abdicate its required function to scrutinize the record as a whole to determine whether the conclusions reached have a reasonable basis in law." Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir. 1968).

In order that the court on review may make a proper evaluation of the findings and decision based upon the administrative record, the administrative law judge must make explicit findings on all facts that are essential to the conclusion of ineligibility. Choratch v. Finch, 438 F.2d 342, 343 (3d Cir. 1971); see Williams v. Celebrezze, 359 F.2d 950, 952 (4th Cir. 1966). The administrative judge's evaluation should include specific findings of subordinate facts upon which the ultimate factual conclusions are based, so that the court will know the basis for the decision. Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974). As the court may not speculate as to the administrative judge's findings, Williams v. Celebrezze, supra at 952, they must be made clear and explicit, id. at 954 (Boreman, J., concurring), and failure to do so may be cause for a remand. Id.; Choratch v. Finch, supra.

The administrative law judge also has a duty to inquire into the claims asserted "in a manner that will fully and fairly develop the facts." Garrett v. Richardson, 471 F.2d 598, 603 (8th Cir. 1972) (emphasis in original). If a fact essential to an ineligibility determination has not been so developed, the cause may be remanded for a sufficiently clear and fair determination of disability or not. Landess v. Weinberger, 490 F.2d 1187, 1189 (8th Cir. 1974).

Under the Social Security Act, "disability" is defined as

inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months . . ..

42 U.S.C. § 423(d)(1)(A) (1970). The claimant has the burden of proving such an impairment, and before a disability will be found, the claimant must show that the impairment prevented him from engaging in substantial gainful employment. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). However, once the claimant has shown that the impairment renders him unable to perform his customary occupation, the burden of proof shifts to the Secretary to show that the claimant, given his age, education, and work experience, has the capacity to perform a specific job that exists in the national economy. Taylor v. Weinberger, 512 F.2d 664, 666 (4th Cir. 1975). If there are no findings as to the latter, the Secretary's decision can be sustained only if there is substantial evidence that the claimant's impairment does not prevent him from engaging in his previous customary occupation. Herridge v. Richardson, 464 F.2d 198 (5th Cir. 1972); Besseck v. Finch, 342 F. Supp. 957 (W.D.Va.1972).

Before making a finding of the claimant's ability or inability to engage in any substantial gainful activity, the Secretary must consider (1) the objective medical facts (clinical findings); (2) the medical opinions of the examining or treating physicians based upon those facts; (3) the subjective evidence of pain and disability testified to by the claimant and corroborated by other evidence; and (4) the claimant's background, work history, and present age. Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir. 1968). The claimant's impairments "must be considered in combination and must not be fragmented in evaluating their effects." Id. Further, the administrative law judge must explicitly consider the claimant's subjective symptoms. DePaepe v. Richardson, 464 F.2d 92, 99 (5th Cir. 1972). While he has a right as finder of fact to reject such testimony entirely, failure to explicitly do so could lead to a conclusion that he failed to consider it at all. Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974). To so disregard the claimant's subjective symptoms is error and grounds for reversal. DePaepe v. Richardson, supra; Black v. Richardson, 356 F.Supp. 861, 871 (D.S. C.1973).

When the plaintiff Rose Smith was treated in 1965 and 1966, she was diagnosed as having a heart murmur, hypertension, and meningovascular syphilis, which was found to be the cause of right complete ophthalmoplegia. During her hospitalization in August of 1967, immediately before the expiration of her special earnings requirement status, she was diagnosed as having tuberculosis of the lymph nodes and intestines; lymphogranuloma venereum with proctitis, suspected; and anemia due to chronic blood loss. Subsequent medical treatment disclosed that plaintiff was also suffering from neurosyphilis, pulmonary tuberculosis, and chronic alcoholism, although it is not clear as to the time of the onset of these diseases.

Mrs. Smith never attended school due to a childhood illness. She cannot read or write, and she signs her name with an "X." She first went to work when she was eleven years old packing and wrapping candy bars and shelling peanuts at Planter's Nut and Chocolate Company in Virginia. She later worked in a food processing plant. She last worked in a canning factory packing vegetables and performing clean-up work around the conveyor belt. She quit working at the factory in 1963.

The administrative law judge's evaluation of the medical evidence is set forth in three short paragraphs:

When hospitalized in 1967, the claimant rejected placement in a tuberculosis sanatorium for treatment of the pulmonary tuberculosis; hence, she cannot claim that she is disabled by reason of this condition.

The ophthalmoplegia and its underlying cause, found in 1965, responded to treatment and was not found when treatment was given in August and September 1967.

The iron deficiency anemia also is shown to respond to therapy and this condition cannot be considered a disability.

(Tr. 19). The judge thereupon made his ultimate finding that plaintiff was not disabled within the meaning of the Social Security Act, therefore holding her ineligible for benefits. Since there was no evidence or finding that Mrs. Smith was able to engage in any other work available in the economy, this decision may stand only if there was a conclusion that her impairments did not prevent her from engaging in her previous customary employment and that conclusion is supported by substantial evidence. See Mode v. Celebrezze, 359 F.2d 135, 137 (4th Cir. 1966).

The plaintiff's main contention is that the administrative judge erred in refusing to consider her tuberculosis condition as a cause of disability. The judge refused to do so because the plaintiff had rejected the idea of treatment in a sanatorium when suggested by her treating physician in September of 1967. The judge apparently relied on Section 404.1507 of the Social Security Regulations, 20 C.F.R. § 404.1507. (Tr. 18-19). That section provides, in pertinent part:

An individual with a disabling impairment which is amenable to treatment that could be expected to restore his ability to work shall be deemed to be under a disability if he is undergoing therapy prescribed by his treatment sources but his impairment has nevertheless continued to be disabling or can be expected to be disabling for at least 12 months. However, an individual who willfully fails to follow such prescribed treatment cannot by virtue of such failure be found to be under a disability. Willful failure does not exist if there is justifiable cause for failure to follow such treatment.

It is apparent from this section that four elements are required...