Frances B. Walden v. Richard S. Schweiker, Secretary of Health and Human Services For The United States of America, 672 F.2d 835, 11th Cir. (1982)
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Scribd Government DocsFrances B. Walden v. Richard S. Schweiker, Secretary of Health and Human Services For The United States of America, 672 F.2d 835, 11th Cir. (1982)
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Scribd Government Docs672 F.
2d 835
Frances B. WALDEN, Plaintiff-Appellant,
v.
Richard S. SCHWEIKER, Secretary of Health and Human
Services
for the United States of America, Defendant-Appellee.
No. 81-7514.
United States Court of Appeals,
Eleventh Circuit.
April 5, 1982.
1
Westmoreland, Patterson & Moseley, Rudolph N. Patterson, Margaret C.
Johnson, Macon, Ga., for plaintiff-appellant.
Bernard E. Namie, Asst. U. S. Atty., Macon, Ga., for defendant-appellee.
Appeal from the United States District Court for the Middle District of
Georgia.
Before RONEY and KRAVITCH, Circuit Judges, and PITTMAN * , District
Judge.
PITTMAN, District Judge:
The district court summarily affirmed and upheld the administrative denial of
the claimant's application for disability insurance benefits under the Social
Security Act. The claimant appeals.
The issue of this appeal is whether the District Court erred in affirming the
finding of an Administrative Law Judge (ALJ) that the appellant was not
disabled within the meaning of Sections 216(i)(1) and 223(d)(1)(A) of the
Social Security Act and thus was not entitled to disability benefits.1 We hold
that the ALJ was in error in several critical respects: application of an improper
legal standard, failure to address appellant's testimony and evidence in regards
to subjective pain, lack of findings in regards to credibility, failure to develop a
full and fair record and a total disregard for unrefuted evidence. There is not
substantial evidence in the record to support the ALJ's decision. The plaintiff
made out a prima facie case, therefore, the burden of producing evidence
shifted to the defendant. The defendant did not offer any evidence to discharge
its burden.
7
Appellant is a sixty-one year old female possessing a tenth grade education
whose prior occupation was that of a garment factory "bundle" girl and sewing
machine operator. The job required her to push buggies filled with fabric from
one point in the plant to where the sewing machines were located, after which
she would unload and remove the buggies and return for additional fabric. Her
duties also required her to operate a sewing machine, stitching pockets on men's
trousers. This obviously required considerable dexterity of the hands and
fingers. She testified that the bundle job demanded continuous walking,
stooping and the lifting of bundles weighing twelve to fifteen pounds for a
straight shift of eight hours a day.
In the late 1960s appellant began to suffer progressive physical deterioration
from what was ultimately shown to be rheumatoid arthritis. The condition
worsened until in September of 1969 she testified she was unable to perform her
duties and had missed so many days from work due to her ailment that she was
forced to resign her employment.
At the hearing 2 before the ALJ, appellant testified that prior to her resignation
her supervisor had been assisting her in her job duties, allowing her to sit and
rest between trips to the sewing machines and generally watching out for her.
10
As to the physical manifestations of her condition and its deleterious effects, the
appellant testified her knees and ankles became swollen to the point she could
hardly stand. She could not grip with her hands due to swelling and pain. This
condition also extended into her shoulders and was extremely painful. The pain
was such that appellant would "go home at night and cry with my feet and soak
'em and everything before (she) could even fix supper for (her) family."
11
The only other witness at that time was appellant's daughter who was only
asked the one question whether she had anything to add. She generally agreed
with her mother's testimony.
12
The great bulk of the hearing consisted of the ALJ's admonitions to appellant as
to the quality of her evidence. In pertinent part he addressed her as follows:
(W)e must have medical records showing what your condition was up until June of
13
1973.3
I14can ask you some questions asking you to relate back to what your condition was
almost five years ago, but in the end I'm going to have to have medical records
reflecting your state of health five or so years ago.
15 ask you some questions ... but in the absence of medical records your answers
I'll
would mean very little.
16
The appellant, post-hearing, submitted to the ALJ a statement from one of her
physicians, Dr. A. L. Lawrence. By deposition Dr. Lawrence testified he first
saw appellant on April 20, 1972. He saw her eight times from April, 1972
through June, 1973. At that time he diagnosed, through physical examination,
progressive rheumatoid arthritis. According to him the physical manifestations
of the disease were so obvious, laboratory or other clinical tests were
unnecessary. He prescribed aspirin, the accepted treatment for arthritis. He
further opined that "based on her inability to perform smaller movements and
stand and to work and weight bear" appellant was disabled prior to June of
1973.
17
In his opinion denying the claim, the ALJ's findings were few. However, he did
state the following:
18is well established that it is the duty of the claimant to provide objective clinical
It
and medical findings and other evidence to prove entitlement.... (emphasis added).
19 of the treating physicians were able to give an opinion of claimant's condition
None
in June, 1973, when she last met the earnings requirements. Although it is their
opinion that she is now disabled, the medical evidence shows she did not start
receiving treatment for her rheumatoid arthritis prior to April, 1975. Dr. Andrew L.
Lawrence did say that he saw the claimant in April, 1972, for pain in her feet, arms
and shoulders. However, no objective or clinical findings are presented here.
20
Review of a case such as the one before us is exceedingly limited. This court's
sole function is to determine whether there is substantial evidence in the record
to support the conclusion of the Secretary of Health and Human Services. Davis
v. Schweiker, 641 F.2d 283, 285 (5th Cir. 1981); Flowers v. Harris, 616 F.2d
776 (5th Cir. 1980).
21
It is recognized that a very heavy burden rests upon the claimant to establish the
existence of a disability. See Johnson v. Harris, 612 F.2d 993, 996-97 (5th Cir.
1980). The burden is so stringent that it has been characterized as bordering on
the unrealistic. Williams v. Finch, 440 F.2d 613, 615 (5th Cir. 1971)
(Ainsworth, J.). Notwithstanding this burden and the limited scope of review,
the court can reverse a finding of the Secretary if not supported by substantial
evidence. 42 U.S.C. 405(g).4 This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether
substantial evidence supports each essential administrative finding. Strickland
v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980). In its review, however, the court
abstains from reweighing the evidence or substituting its own judgment for that
of the Secretary. Laffoon v. Califano, 558 F.2d 253, 254 (5th Cir. 1977).
22
Substantial evidence is "more than a scintilla, and must do more than create a
suspicion of the existence of the fact to be established. 'It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.' " NLRB v. Columbian Enameling and Stamping Co., 306 U.S.
292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660, 665 (1939), quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126, 140
(1938); accord Anderson v. Schweiker, 651 F.2d 306, 308 (5th Cir. 1981).
23
Therefore, this court, like the ALJ, must consider the evidence as a whole,
Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979), including "(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 (a spouse), other members of the family, (her)
neighbors and others who have observed (her), and (4) the claimant's age,
education and work history." DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir.
1972).
24
The initial erroneous premise of the ALJ upon which he based his decision was
that the appellant did not make out a prima facie case of disability because she
did not submit medical records of her pre-June, 1973 condition. To satisfy this
primary phase of her burden the appellant is required to demonstrate that she is
no longer capable of performing her past work. Perez v. Schweiker, 653 F.2d
997, 999-1000 (5th Cir. 1981). See 20 C.F.R. 404.1503 et seq.
25
Appellant's testimony was that in 1969 she could no longer perform the tasks at
her job and therefore resigned. Her physician, Dr. Lawrence, based his
evaluation of her disability on the requirements of standing, stooping, lifting
and walking. He further testified she was unable to perform gross manipulation
due to pain and swelling in her hands. This testimony stands uncontradicted. An
administrative law judge may not arbitrarily reject uncontroverted medical
testimony. Goodley v. Harris, 608 F.2d 234 (5th Cir. 1979).
26
First the ALJ was in error in finding there were no objective or clinical findings
to support the appellant's claim. The appellant's doctor described the appellant's
condition after he had made a physical examination of her "entire joint
structure, the fingers, the hands, the elbows and knees, all of the joints that can
be affected ... from a clinical standpoint the lady did have pain and she did hurt
when you moved her joints, manipulated the joints as we call it, she did have
pain on abduction, or movement away from the body at the shoulders, and she
had pain in her hands when she would grip round objects...." See DePaepe, 464
F.2d at 94-95. It appears the ALJ would require some laboratory tests to
validate the doctor's diagnosis. Arthritis is an affliction of such common
occurrence these obvious manifestations are common knowledge. Such
evidence, uncontradicted, qualifies as an example of the first DePaepe factor.
Laboratory tests are not mandated.
27
Furthermore, the ALJ's requirement of objective clinical and medical findings
to establish a prima facia case is a misreading of DePaepe and its progeny. The
ALJ imposed an improper legal standard. A single factor is not in and of itself
conclusive, but the four elements are to be considered together in arriving at a
determination of disability. In DePaepe the court said "(i)t 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." (emphasis in
original). Id. It is error to disregard any one of these elements. Rodriquez v.
Schweiker, 640 F.2d 682, 685 (5th Cir. 1981).
28
The unrefuted evidence in the record leads to a discussion of the ALJ's
inadequate findings. To reach his conclusion, the ALJ necessarily had to
disbelieve or disregard the testimonies of Dr. Lawrence, the appellant and her
daughter, yet there were no findings as to credibility. Id. Such findings are
necessary and crucial where subjective pain is an issue. Scharlow v. Schweiker,
655 F.2d 645, 648-49 (5th Cir. 1981); Benson v. Schweiker, 652 F.2d 406, 409
(5th Cir. 1981).
29
The appellant's own testimony revealed the severe pain accompanying her
malady. Her physician and daughter corroborated this testimony. See Flowers,
616 F.2d at 778. It is well established in the Fifth and Eleventh Circuits that
pain alone can be disabling, even when its existence is unsupported by
objective evidence. E.g., Ware v. Schweiker, 651 F.2d 408, 412 (5th Cir. 1981).
Since pain alone or in conjunction with other impairments can give rise to a
disability, the ALJ must consider subjective evidence of pain. Failure to do so
is reversible error. Scharlow, 655 F.2d at 648. In the case at bar the ALJ failed
to make any specific findings as to appellant's allegations of pain. Instead, he
placed all of his emphasis on the paucity of "medical evidence" or "records".
30
There was no contrary or conflicting testimony submitted. As such, the opinion,
diagnosis and medical evidence of the treating physician, who saw the
appellant eight times prior to June, 1973, should have been accorded
considerable weight. Smith v. Schweiker, 646 F.2d 1075, 1080 (5th Cir. 1981).
31
Appellant's unrefuted evidence established she was unable to perform her prior
work. Having so established a prima facie case, the burden shifted to the
Secretary to show that the appellant is capable of engaging in some substantial
gainful activity. Millet v. Schweiker, 662 F.2d 1199, 1201 (5th Cir. 1981). The
Secretary offered no evidence in support of his burden.
32
Due to the perfunctory manner of the hearing, the quality and quantity of errors
pointed out, and the lack of substantial evidence to support the ALJ's decision,
this court is of the opinion the appellant has suffered an injustice. This case is
hereby reversed and judgment rendered for the appellant.
33
REVERSED AND RENDERED.
Honorable Virgil Pittman, U. S. District Judge for the Southern District of
Alabama, sitting by designation
A "disability" is defined as an:
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 twelve months(.)
42 U.S.C. 423(d)(1)(A), Fortenberry v. Harris, 612 F.2d 947, 949-50 (5th Cir.
1980).
The record reflects that the appellant was not represented by counsel at the
hearing which lasted fifteen minutes. The Secretary asked no questions and
presented no witnesses
It is undisputed that appellant's insured status for purposes of receiving
disability benefits expired June 30, 1973. Therefore, her condition on or before
that date is determinative
See McDaniel v. Harris, 639 F.2d 1386, 1389 n. 3 (5th Cir. 1981), for a list of
cases in which we have reversed the Secretary's finding of no disability because
