Greth v. Califano

438 F. Supp. 1270, 1977 U.S. Dist. LEXIS 13250
CourtDistrict Court, E.D. Pennsylvania
DecidedOctober 28, 1977
DocketCiv. A. No. 76-2181
StatusPublished
Cited by2 cases

This text of 438 F. Supp. 1270 (Greth v. Califano) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greth v. Califano, 438 F. Supp. 1270, 1977 U.S. Dist. LEXIS 13250 (E.D. Pa. 1977).

Opinion

[1271]*1271OPINION

LUONGO, District Judge.

Plaintiff, Donald E. Greth, brought this action pursuant to 42 U.S.C. § 405(g), seeking review of the denial by the Secretary of Health, Education and Welfare of his claim for disability insurance benefits. Before me for approval is the United States Magistrate’s Report and Recommendation,1 which concludes that summary judgment should be entered in favor of the plaintiff. For the reasons stated in this opinion, I am unable to approve the Magistrate’s Recommendation, and I will instead remand the case to the Secretary for certain additional findings of fact.

Plaintiff’s initial application for benefits was denied. A hearing was then held before an Administrative Law Judge in August, 1975. At that hearing, plaintiff testified that he suffers from various infirmities, including diabetes, obesity, loss of vision in one eye, high blood pressure, degenerative disc disease, arthritis, and nervousness. Report and Recommendation at 2. In particular, plaintiff testified that he is unable to sit for more than ninety minutes and that he is unable to stand for one hour. Id. At a later point in the hearing, the ALJ posed two hypothetical questions to the vocational expert who testified at the hearing. First, the expert was asked to assume that Greth had diabetes and loss of vision in one eye, and that medium, heavy, or very heavy work was therefore medically contraindicated, but that light or sedentary work was not contraindicated. Transcript of Hearing at 71, Administrative Record at 107. Based on these assumptions, the expert responded that Greth was capable of performing light or sedentary work. Id. 72, Administrative Record at 108. Then, the ALJ asked the vocational expert to “assume that the claimant’s total presenting symptoms as described by him” were medically demonstrable. Id. 78-79, Administrative Record at 114-15. On the basis of these assumptions, the expert stated that Greth was incapable of performing even light or sedentary work. Id. 79, Administrative Record at 115. He pointed out that Greth was capable of performing sheltered employment “where a person could work for two hours and nap for two hours,” id. 80, Administrative Record at 116, but, as the ALJ noted, sheltered employment does not constitute substantial gainful employment.

The ALJ found that plaintiff was capable of substantial gainful employment, and was therefore ineligible for benefits. Decision of ALJ at 17-18, Administrative Record at 23-24. The Magistrate now urges in his Report that (1) the ALJ found plaintiff to be a credible witness, (2) plaintiff’s testimony, if credited, showed that he was incapable of performing even light or sedentary work, and (3) plaintiff is therefore entitled to summary judgment. I cannot accept this conclusion, for I am not persuaded that the ALJ ever resolved the issue of plaintiff’s credibility. Only a single opaque paragraph in the ALJ’s decision adverts to plaintiff’s credibility:

“The undersigned does not doubt the claimant has some pain. The quality, duration and severity of the discomfort are, of course, known only to the claimant. However, while the allegation that there is an impairment cannot be disputed, nevertheless, the remaining functional capacities demonstrated by medical findings of record, adequately negate a finding of significant physical limitation due to structural change and/or significant pain and discomfort. Pain alone is not the anatomical, physiological or psychological evidence required to support vocational incapacity at the statutory level, lacking persuasive indications that the pain results from ‘anatomical, physiological or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.’ 20 C.F.R. [404.1501(c)].” Decision of ALJ at 15, Administrative Record at 21.

This language could be taken to mean that the AU declined to pass on plaintiff’s credibility, acting on the (erroneous) premise [1272]*1272that undocumented subjective reports of even severe pain or discomfort, however credible, are by themselves insufficient to demonstrate entitlement to disability benefits. See generally Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir. 1971); Parsons v. Secretary of HEW, No. 76-2619, slip op. at 6-7 (E.D.Pa. Sept. 28, 1977); Rusnak v. Matthews, 415 F.Supp. 822, 824 (E.D.Pa. 1976). I am reluctant to address the merits of this case in the absence of an express finding by the ALJ on the credibility of plaintiff’s subjective reports of pain and discomfort. See generally, e. g., Roberts v. Califano, 439 F.Supp. 188 (E.D.Pa.1977). Accordingly, I will remand this matter for the entry of appropriate findings of fact.

APPENDIX

REPORT — RECOMMENDATION

SEPTEMBER 19, 1977

RICHARD A. POWERS, III

UNITED STATES MAGISTRATE

Plaintiff seeks review of a denial of disability insurance benefits by the Secretary of Health, Education and Welfare (Secretary). 42 U.S.C.A. § 405(g).

Plaintiff originally filed an application for a period of disability and for disability insurance benefits in August 1974, alleging he became unable to work on July 15, 1974 at age thirty-six (36). The application was denied initially and on reconsideration. Thereafter, the plaintiff requested a hearing before an Administrative Law Judge (ALJ) and the hearing was held on August 22, 1975. Plaintiff appeared with counsel, and a vocational expert also appeared to testify. On February 19, 1976, the ALJ found that the plaintiff was not under a disability. The decision of the ALJ became the final decision of the Secretary of Health, Education and Welfare when the Appeals Council approved the decision on May 14, 1976.

The complaint in this case was filed on July 12,1976, and cross motions for summary judgment are presently pending for disposition. After review of the record, we find that there is not substantial evidence to support the decision of the Secretary and the defendant’s motion for summary judgment should be denied and the plaintiff’s motion for summary judgment should be granted.

In his decision, the ALJ found that the plaintiff is suffering from diabetes mellitus which has been difficult to control with a weight loss program and insulin. Plaintiff also has a loss of vision in his right eye; degenerative disc disease at L4-L5 and L5-S1 in an advanced degree with arthritis and a narrowing of the L3-L4 interspace, requiring plaintiff to wear a back brace constantly except when he sleeps. Plaintiff also suffers from nervousness which renders him uncomfortable for a short period of time upon meeting strangers. He also has high blood pressure which is now controlled by a weight loss program. Plaintiff is unable to walk without the aid of crutches or a cane, and he has no grip in either hand in which he can turn a screwdriver or wield a hammer to repair anything. Plaintiff has a history of four (4) admissions to the hospital because of diabetes and has had diabetes since 1966. Plaintiff also returns to the hospital monthly since his last hospitalization in August of 1975. The plaintiff is unable to sit for a period longer than one and one-half (IV2) hour1 and is unable to .stand for an hour.

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Related

McCray v. Califano
483 F. Supp. 128 (M.D. Louisiana, 1980)
King v. Secretary of Health, Education & Welfare
481 F. Supp. 947 (E.D. Pennsylvania, 1979)

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Bluebook (online)
438 F. Supp. 1270, 1977 U.S. Dist. LEXIS 13250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greth-v-califano-paed-1977.