Refior v. United States Department of Health, Education & Welfare

473 F. Supp. 321, 1979 U.S. Dist. LEXIS 10725
CourtDistrict Court, E.D. Wisconsin
DecidedJuly 30, 1979
DocketCiv. A. No. 76-C-367
StatusPublished
Cited by1 cases

This text of 473 F. Supp. 321 (Refior v. United States Department of Health, Education & Welfare) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Refior v. United States Department of Health, Education & Welfare, 473 F. Supp. 321, 1979 U.S. Dist. LEXIS 10725 (E.D. Wis. 1979).

Opinion

REYNOLDS, Chief Judge.

This is a suit by Joanne H. Refior to compel the defendant to grant her a period of disability or to provide federal disability insurance benefits to her pursuant to the Federal Old-Age Survivors and Disability Insurance Benefits Program as set forth in 42 U.S.C. § 401 et seq. The plaintiff was denied benefits by the Social Security Administration, and the court has jurisdiction to review that denial by virtue of 28 U.S.C. § 1331 and 42 U.S.C. § 405(g). The matter is presently before the Court for the second time on cross motions for summary judgment. For the reasons hereafter stated, plaintiff’s motion will be granted.

Plaintiff originally filed for benefits in November 1973, alleging disability due to epilepsy and a back injury. Her application and request for reconsideration were both denied by the defendant. Plaintiff then requested a hearing by an administrative law judge which was held on November 21, 1974. The judge determined that plaintiff was not disabled during the relevant time period (1970 to September 30, 1973), and this decision was affirmed by the Appeals Council. The judge found that, although the plaintiff claimed she had back pains, there was no medical evidence indicating a disabling back condition, her seizures were well controlled by medication, and although a doctor indicated she was partially disabled and totally incapacitated by her breathing problem, breathing tests indicated only a minor obstruction. Plaintiff next filed a complaint in this court on May 27, 1976. This Court held that Joanne H. Refior was disabled due to respiratory problems during the relevant time period to the extent that she could not perform her usual occupation as a nurse’s aide. This Court then remanded the case to the administrative law judge for further evidence to determine what jobs she might be able to do considering her disability and whether there were jobs of this type available. (See 42 U.S.C. § 423(d)(2)(A)) Upon remand, the administrative law judge found the plaintiff not to be disabled within the meaning of 42 U.S.C. § 423(d)(1), since he found her able to perform sedentary work as a cashier, timekeeper or billing clerk. This denial of benefits was affirmed by the Appeals Council on October 24, 1978.

As stated in the original decision by this Court, in addressing the question of summary judgment, the question is not whether there is a factual dispute, but rather whether there is substantial evidence in the record to support the decision that the plaintiff was not disabled prior to September 30, 1973. See Workman v. Celebrezze, 360 F.2d 877 (7th Cir. 1966).

This Court’s earlier decision on June 12, 1978, held that the plaintiff had met her burden in proving she was disabled at least to the extent that she could not continue her usual occupation as a nurse’s aide. It was found that although the plaintiff’s back pain and epilepsy were not severe enough to allow her to receive benefits, her respiratory condition was disabling. This Court remanded the case “ * * * for further development of what types of work the claimant was capable of doing prior to September 30,1973, and what jobs were available to her at that time.” Id. pp. 11-12.

On remand, the only new evidence consisted of a letter from one of the plaintiff’s former doctors and the testimony of two vocational experts.

[323]*323The letter introduced from Dr. Titus, that referred to plaintiff, stated “ * * * I considered her chronically disabled with schizo-affective schizophrenia.” (Ex. 31)

The next evidence was testimony given by the Government’s vocational expert, Dr. Lawrence Blum. The administrative law judge first had Dr. Blum “assume that Mrs. Refior had all of the limitations, restrictions and pain that was alleged * * (Tr. at 19) In response to this assumption, Dr. Blum answered there would be no work available in the economy at which plaintiff could be gainfully employed. The second assumption posited to Dr. Blum was:

“* * * assume that I would find from the medical evidence as shown in the record and from the testimony of the claimant that was given in the previous hearing and submitted to the Appeals Council that there is no physical impediment to the claimant performing sedentary or light work activity as defined by you.” (Tr. at 20)

Under this assumption Dr. Blum testified the plaintiff was capable of handling clerical-type positions such as billing clerk, cashier or timekeeping clerk and that these positions were available during the relevant time period.

Finally, the plaintiff called John W. Gallen as a vocational expert. Mr. Gallen has worked for the past twelve years coordinating job development and job placement efforts for handicapped persons. (Ex. 32) When asked whether Mrs. Refior could be substantially employed, he stated, “I feel that at that period that she — -that even though there are jobs that she could do, I do not feel that she could sustain the effort for the — for a significant period of time to qualify her for those — for any jobs, even in the sedentary area — either sedentary or light.” (Tr. at 33-34) Mr. Gallen based his opinion on plaintiff’s pulmonary problems, which he felt would result in fatigue and coughing. (Tr. at 34-35) He stated that plaintiff could not hold a position as a billing clerk unless the employer was not concerned about speed and that plaintiff could not perform the job of timekeeping due to the amount of walking which would be required. The only time Mr. Gallen indicated that plaintiff might be able to work is when the administrative law judge had Mr. Gallen assume Mrs. Refior had no physical impediment nor any functional overlay.

From this additional evidence, the administrative law judge held that although plaintiff had a respiratory problem preventing her from performing work as a nurse’s aide, she retained the residual capacity to engage in work as a cashier, timekeeper or billing clerk. The Appeals Council affirmed this decision.

This Court, after having reviewed the entire record very carefully, is of the opinion that the decision of the administrative law judge which was upheld by the Appeals Council is not supported by substantial evidence.

On remand, the burden of proving the plaintiff was capable of some other type of substantial gainful employment shifted to the Secretary of Health, Education and Welfare. Stark v. Weinberger, 497 F.2d 1092 (7th Cir. 1974); Garrett v. Finch, 436 F.2d 15 (6th Cir. 1970). Therefore, the Secretary had the burden of coming forward with evidence showing both the type of work that the plaintiff could do considering her respiratory problems, and that such jobs existed in the geographical area where she lived.

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Bluebook (online)
473 F. Supp. 321, 1979 U.S. Dist. LEXIS 10725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/refior-v-united-states-department-of-health-education-welfare-wied-1979.