Trice v. Weinberger, Civ. A. No. C 74-1025 A.

• Decision Date: 26 March 1975
• Docket Number: Civ. A. No. C 74-1025 A.
• Citation: 392 F. Supp. 1193
• Parties: Walter TRICE, Plaintiff, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Northern District of Georgia

392 F. Supp. 1193

Walter TRICE, Plaintiff, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant.

Civ. A. No. C 74-1025 A.

United States District Court, N. D. Georgia, Atlanta Division.

March 26, 1975.

David A. Webster, Atlanta, Ga., for plaintiff.

Carl H. Harper, Jerry J. Wall, Asst. Regional Attys., Dept. of HEW, Atlanta, Ga., for defendant.

ORDER

HILL, District Judge.

This is an action to review a determination by the Secretary of Health, Education and Welfare that plaintiff is not entitled to the establishment of a period of disability or to disability insurance benefits under Section 216(i) and 223 of the Social Security Act. 42 U.S.C. § 416(i) and 423. This Court's jurisdiction is invoked pursuant to Section 205(g) of the Act. 42 U.S.C. § 405(g).

On September 25, 1972, plaintiff filed an application for disability insurance benefits, alleging that he had been disabled since July 26, 1971, when a refrigerator fell on his back at work.

On November 6, 1972, his application was denied by the Bureau of Disability Insurance on the grounds that he was not disabled within the meaning of the Act. He filed a timely request for reconsideration; and, on July 23, 1973, the Bureau reaffirmed its previous order. A timely request for a hearing before an Administrative Law Judge was made, and a de novo hearing was conducted on October 24, 1973, with plaintiff, plaintiff's wife, and a vocational expert called by the Administrative Law Judge, testifying.

The Administrative Law Judge's adverse decision was rendered on November 9, 1973. A timely request for review by the Appeals Council followed; and a brief, together with affidavits from plaintiff and his wife, were submitted with the request to the Appeals Council. The Appeals Council, on March 26, 1974, affirmed the decision of the Administrative Law Judge, basing its decision on the transcript of the hearing and the additional matters set forth in the affidavits submitted to it by plaintiff. This decision became the final decision of the Secretary and a timely request for judicial review followed.

Both plaintiff and the Secretary have filed with this Court motions for summary judgment. The entire record, including briefs from both plaintiff and the Secretary, was submitted to United States Magistrate Joel M. Feldman to submit a report and recommendations to the Court. Bell v. Weinberger, 378 F. Supp. 198 (N.D.Ga., 1974); 28 U.S.C. § 636(b)(2); Local Court Rule 290. The Magistrate, in a detailed report, has recommended that the Secretary's decision be reversed, and "the cause be remanded with directions to find the claimant disabled."

While the Court substantially concurs in the Magistrate's recommendations, it feels the case should be remanded for the taking of further evidence on the question of the extent of plaintiff's disability as of June 30, 1972, and the ability of plaintiff to engage in any substantial gainful activity on that date. 42 U.S.C. § 405(g); Kerner v. Flemming, 283 F.2d 916 (2d Cir. 1960). See also, Byrd v. Richardson, 362 F.Supp. 957 (D.S.C.1973); Roman v. Secretary of Health, Education and Welfare, 355 F.Supp. 646 (D.P.R.1972).

The Secretary has determined, and it is not controverted, that plaintiff meets the insured status requirements through the quarter ending June 30, 1972. Therefore, on the basis of his application, plaintiff must establish that he was under a disability which commenced prior to June 30, 1972, when he last met the special insured status requirements.

The Court finds that there is not substantial evidence in the record to support the Secretary's decision that claimant was not disabled as of the cut-off date. But neither is there substantial evidence in the record to show that he was disabled. Further inquiry as to plaintiff's physical condition and his residual capacity for work is necessary and proper in order to determine if he is entitled to benefits.

This Court cannot re-weigh the evidence as presented in the record, but rather, it can simply determine whether there is "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 (1970). Cases which are not supported by substantial evidence are unusual. Gaultney v. Weinberger, 505 F.2d 943 (5th Cir. 1974). It appears here, however, that the Secretary has failed to resolve apparent ambiguities in medical evidence, based his decision upon an expert opinion which was based upon hypothetical facts that are not supported by the record, and failed to consider all elements of proof together and in combination with each other.

The Fifth Circuit Court of Appeals stated in DePaepe v. Richardson, 464 F. 2d 92, 94 (5th Cir. 1972),

". . . that there are four elements of proof to be considered in determining whether a claimant is disabled within the meaning of the Social Security Act, and these are: (1) objective medical facts or clinical findings; (2) diagnoses of examining physicians; (3) subjective evidence of pain and disability as testified to by the claimant and corroborated by his wife, other members of his family, his neighbors and others who have observed him; and (4) the claimant's age, education and work history. A fair and conscientious consideration of all of these elements of proof should furnish an examiner with a comprehensive and adequate method of determining whether or not a claimant is disabled within the meaning of the Act in most cases, . . .. It is obvious that all of these elements of proof must be considered together and in combination with each other, and not just one or two with the others excluded."

Looking at the four elements set out in DePaepe, the Court finds that the great bulk of the objective medical evidence is either illegible or so poorly reproduced that the Court cannot read it. The only medical evidence that shows the extent of plaintiff's disability is contradictory. The record shows that plaintiff was examined by Dr. Henry F. Shorter on June 1, 1973, and he concluded that plaintiff was permanently disabled. (TR-129) However, a letter written by Dr. Shorter to plaintiff's attorney on October 17, 1973, states that plaintiff was not permanently disabled, and his disability could be improved with treatment. (TR-136) No attempt was made by the Administrative Law Judge to reconcile these conflicting reports, even though he had the power and the duty to do so. (See Special Master's report, Fn. 3). There is no other medical testimony that dealt in any illuminating fashion with the plaintiff's ability to work. There is no real attempt to demonstrate the extent of plaintiff's impairment on June 30, 1972, or his residual capacities on that date. The Administrative Law Judge did not receive any expert testimony as to whether plaintiff was disabled as defined by the Act on June 30, 1972.

The record does show that both plaintiff and his wife testified that prior to June 30, 1972, plaintiff was suffering from extensive pain due to his disabilities. Much of this testimony, though, deals with plaintiff's present health, and there is not a strong distinction drawn between the extent of this disability before or after the crucial cut-off date.

While it is within the authority of the Secretary, through the Administrative Law Judge, to determine the credibility of witnesses, he must consider this subjective evidence in connection with the other evidence available. DePaepe v. Richardson, supra. The subjective evidence does not necessarily take precedence over conflicting objective medical testimony. Gaultney v. Weinberger, supra. But in the instant case there is no objective medical evidence of the extent of plaintiff's disability on June 30, 1972.

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