Willingham v. SECRETARY OF HEALTH, EDUCATION & WELF., 73-817-Civ-JLK.

• Decision Date: 25 June 1974
• Docket Number: No. 73-817-Civ-JLK.,73-817-Civ-JLK.
• Citation: 377 F. Supp. 1254
• Parties: Verna M. WILLINGHAM, Plaintiff, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant.
• Court: U.S. District Court — Southern District of Florida

377 F. Supp. 1254

Verna M. WILLINGHAM, Plaintiff, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant.

No. 73-817-Civ-JLK.

United States District Court, S. D. Florida, Miami Division.

June 25, 1974.

Stephen J. Press, Fla. Rural Legal Services, Inc., Belle Glade, Fla., for plaintiff.

Carol M. Anderson, Asst. U. S. Atty., Miami, Fla., Carl H. Harper, Regional Atty., Dept. of Health, Education and Welfare, Atlanta, Ga., for defendant.

ORDER OF REMAND

JAMES LAWRENCE KING, District Judge.

In this action now before the court on defendant's motion for summary judgment and the relief requested in the pleadings, plaintiff seeks review of a final decision of the Secretary of Health, Education and Welfare, which denied her claim for disability insurance benefits under the Social Security Act.¹ Mrs. Verna Willingham, a former nurse and waitress with a twelfth grade education, applied for benefits on June 2, 1971, alleging that she became disabled due to a nervous condition in March 1961, and was thereafter unable to pursue her prior employment.

Upon the denial of her claim by the Appeals Council of the Social Security Administration, which approved the decision of an administrative law judge without opinion after considering additional evidence, plaintiff brought this timely action on May 11, 1973. The court has jurisdiction to review the Secretary's decision on the basis of the authority contained in section 205(g) of the Act.²

It appears from the administrative record that there is no dispute that plaintiff last met the special earnings requirements which are a precondition to eligibility for disability benefits on September 30, 1962. The evidence of record submitted by plaintiff to demonstrate that she suffered from a disability prior to that date is limited. Other than a report of a short period of hospitalization for pneumonia in 1961, the record contains only brief letters from two doctors and a copy of the chart maintained on plaintiff by one of them. Although the record further reflects that at various times subsequent to the date plaintiff last met the Act's eligibility requirement, psychiatric diagnoses revealed that she suffered from a serious mental disorder, that evidence was excluded from consideration by the agency.

In a brief letter dated May 3, 1971, Dr. Murphy stated that he treated plaintiff from March 3, 1961, to January 8, 1963, for "repeated nervous symptoms, migraine and allergies," and that "she was not able to work during this period of time."³ The chart maintained for plaintiff by Dr. Murphy, although not before the administrative law judge, was considered by the Appeals Council which upheld his decision.⁴ It indicates frequent consultations through April 1962, no small proportion of which were concerned with menopausal difficulties so far as it is possible to make out the chart's contents. Treatment consisted primarily of tranquilizers and hormone shots.

Dr. Romano, who had written on May 5, 1971, that plaintiff had been under his care "for the years 1955-1964 for the treatment of nerves"⁵ expanded on his comments in a letter dated November 27, 1972, which was considered by the Appeals Council, but not by the administrative law judge.⁶ In the second letter he stated that he had treated plaintiff "from 1955 to 1962," that she was "extremely nervous and apprehensive," and suffered from dizziness, nausea, vomiting and insomnia, and that she had been treated with "phenabarbital, Tuinal, Tigan, Demural and Leoprone."⁷ He concluded that plaintiff "was unable to perform her usual activities and duties of life due to recurrent episodes of mixed neurosis."⁸ Although Dr. Romano, unlike Dr. Murphy, is still living, plaintiff chose not to call him as a witness or to submit for the record more detailed evidence of the diagnostic findings which led him to his conclusion that plaintiff was disabled prior to her eligibility cut-off date.

In accordance with a Congressional mandate that the expertise of the administrative fact-finder be accorded priority, this court may disturb the Secretary's findings only when they are not "supported by substantial evidence."⁹ In this case, the administrative law judge found as a fact that "the evidence fails to establish a medically determinable impairment (or combination of impairments) which would have precluded the claimant from doing her usual work prior to or at the time she last had insured status."¹⁰ After considering additional evidence, the Appeals Council concurred in that judgment without opinion.¹¹

The conceptual difficulty with such a "finding" is that the record contains no direct or substantial evidence whatsoever that might support the administrative view that plaintiff was not disabled prior to termination of her insured status. It might appear, therefore, that the Secretary's finding should be reversed because it is not "supported by substantial evidence." See Williams v. Finch, 440 F.2d 613 (5th Cir. 1971).

It is contended, however, that the administrative decision should be upheld because plaintiff failed to carry her burden of proof by demonstrating that prior to her 1962 eligibility cut-off date she suffered a disability within the meaning of the Act. This is the plain import of the administrative law judge's finding set forth above, and explains the fact that neither the law judge nor the Appeals Council considered it necessary to adduce for the record any evidence to contradict that presented by the claimant.

It is black letter law that the overall burden of proving disability under the Act rests upon the claimant. E. g. Hart v. Finch, 440 F.2d 1340; Hayes v. Celebrezze, 349 F.2d 651 (5th Cir. 1965). But to say this much is to obscure the more particular issue presented by this case.

It has long been recognized that "proof" is an ambiguous word, and that any "burden of proof" has as its elements a burden of production or going forward and a burden of persuasion.¹² It is said that although a plaintiff always has the burden of persuasion, which never shifts, he may produce sufficient evidence that his opponent's failure to adduce contradictory proof either may lead to a decision for plaintiff, or must lead to such a ruling.

Whether the law judge erred in not finding for claimant given the defendant's failure to produce any evidence is precisely the issue here. Some relevant evidence, if credited by the law judge, would more clearly have met the substantial evidence test this court must apply than no evidence at all.

In the absence of the production by defendant of any evidence for the administrative record, the court is squarely confronted with the conundrum of whether claimant failed to meet her burden of production, or whether the Secretary lacked substantial evidence for the conclusion that she was not entitled to benefits. The difficulty with agency determinations which leave the issue in such a posture is that they invite the parties upon review to tilt at windmills, each negativing the quality of the other's proof, after having neglected its own. Moreover, the proof of such negatives is an arcane science at best, and decisions forged from the incantation of such alchemy more often appear capriciously to transmute iron to brass than to gold.

The problem, ultimately, is to draw the line defining the quantum of proof required of a disability benefit claimant before the burden shifts to the Secretary to produce contradictory evidence of record to avoid a mandatory decision in the claimant's favor. Although the cases are not legion because of the agency's traditional solicitude for disability claimants, the production issue has arisen in two areas.

It now seems settled that once a claimant has demonstrated his inability to continue to engage in his former occupation, the burden of production shifts to the Secretary to show that there are other types of substantial gainful activity in the national economy which he could undertake. Jackson v. Richardson, 449 F.2d 1329 (5th Cir. 1972); Labee v. Cohen, 408 F.2d 998 (5th Cir. 1969); Garrett v. Finch, 436 F.2d 15, 18 (6th Cir. 1970) (citing cases).

There can be no doubt that in enacting the Social Security Amendments of 1967,¹³ Congress intended to curb judicial decisions burdening the Secretary with proof that suitable jobs were actually available within an ever narrower geographic area, and modified the statutory definition of disability accordingly.¹⁴ In so amending the Act, however. Congress did nothing to foreclose the Secretary from presenting evidence that suitable jobs exist in the national economy which a claimant might perform. See Meneses v. Secretary of Health, Education and Welfare, 143 U.S.App.D.C. 81, 442 F.2d 803 (1971). Where the question of disability vel non is a close one, or medical evidence to contradict that presented by the claimant cannot be obtained, testimony that jobs are available in the national economy suitable for a person in the claimant's condition would be a particularly valuable part of the administrative record.

The burden of production issue may also arise in reviewing the threshold determination of whether a disability has been adequately established by an individual who seeks benefits. The question is how much medical evidence of what nature a claimant must submit before a decision in his favor would be required if the Secretary failed to produce contrary evidence. That fundamental issue is unavoidable here in the absence of any evidence that claimant could have performed jobs existing in the economy. Moreover, the question is squarely presented because the Secretary introduced no medical evidence at all into the record to dispute that produced by claimant.

Administrative determinations that a claimant has failed to meet the burden of producing medical evidence of disability pose difficulties for a reviewing court which are not insubstantial. Although the court must determine whether the applicable medical standard was correctly...