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HIER v. RIBICOFF

May 2, 1961

RAY L. HIER, PLAINTIFF,
v.
ABRAHAM RIBICOFF, SECRETARY OF THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE OF THE UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Mercer, Chief Judge.

Plaintiff brings this action under Title 42 U.S.C.A. § 405(g) to review an adverse final decision of the Secretary of Health, Education and Welfare, under the Social Security Act. Plaintiff sought an administrative determination that he was entitled to disability and disability benefits under the provisions of Title 42 U.S.C.A. §§ 416 and 423. The Hearing Examiner denied his claim. The plaintiff has exhausted his administrative remedies and is properly before this Court.

Jurisdiction is here conferred by Title 42 U.S.C.A. § 405(g), which also provides that any administrative findings of fact are conclusive if supported by substantial evidence. However, the Hearing Examiner did not make any finding of fact as such, and his written decision is in the form of Judicial Opinion. In the Court's opinion, his failure to specifically find, makes impossible a proper review where the evidence is controverted. Fortunately the evidence in this case is not in dispute; therefore, regardless of the impropriety of the Examiner's opinion, the Court is in a position to determine whether or not the administrative conclusion of fact and law is substantially supported by the uncontradicted evidence in the administrative record.

There appears to be no question and the parties seem to agree that under the Act the period of disability, if allowed, would have to commence no later than September 17, 1956, nor does the Secretary question the continuity of such disability from and after the last-mentioned date. The sole question, as stated by the Examiner:

    "The issue before the hearing examiner is whether
  the claimant is entitled to a period of disability
  under the provisions of Section 216(i)(1) of the
  Social Security Act, as amended, and whether the
  claimant is entitled to disability insurance benefits
  under the provisions of Section 223(a)(1) of the
  Social Security Act, as amended; specifically whether
  claimant has been under a physical impairment of such
  severity as to prevent him from engaging in any
  substantial gainful activity." (Tr. 9)

The applicable statutory provisions define disability as inability to engage in any substantial gainful activity by reason of medically determinable physical or mental impairment which can be expected to result in death or to be of long continued and indefinite duration.

As mentioned, administrative findings if supported by substantial evidence are conclusive. However, on review, the Court is to consider the entire record. Further, in examining the record, particularly as here where the evidence is undisputed, the Court not only has a right but has a duty, to correct erroneous inferences and conclusions from that evidence. This and all courts must assume responsibility for the reasonableness and fairness of decisions of Federal agencies and when sitting on review, all courts must be influenced by a feeling that they are not free to abdicate the conventional judicial function. Universal Camera Corp. v. National Labor Relations Board, 1951, 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456; Goldman v. Folsom, 3 Cir., 1957, 246 F.2d 776; Sobel v. Flemming, D.C. 1959, 178 F. Supp. 891.

The record in this case indicates the following: The plaintiff was born on September 1, 1897. He had only eight years of elementary school education. He had no additional formal education nor did he have any other training in trade or night schools, etc. His life's occupations included farming until the year 1922. In the year 1922, he went to work for Walworth Company and continued in the employ of that company until the commencement of his disability in 1956. His original duties were that of a truck helper and later a truck driver. He worked in these capacities until about 1944. He then became a supervisor and dispatcher. In this capacity it was his job to assign work, check railroad cars, keep records, etc. Among other things this work required walking over 38 acres of railroad tracks in order to record numbers and names on the box cars.

    "Remarks: This patient apparently has a well
  controlled Pernicious Anemia but cord changes are
  present and probably will not improve since they have
  not done tremendously in the last two years. This
  patient apparently cannot do his regular work but I
  can see no reason why he could not do some type of
  work where he is sitting and using his head rather
  than his hands. If possible, a job as elevator
  operator, watchman or some other sedentary occupation
  should be satisfactory for him." (Tr. 100)

Dr. H.R. Varney, in his report dated December 17, 1959, states:

    "The above is physically unable to carry on gainful
  occupation. He has Pernicious anemia, poly neuritis
  of back and hips and involvement of the spinal cord."
  (Tr. 109)

The non-medical corroboration is also most significant. F.A. Mulholland, general foreman of Walworth Company, and Cecil Parker, testify without contradiction as to plaintiff's life-long work habits of industry and reliability and also express the opinion that if plaintiff could work, he would.

The Examiner concluded from these facts that "claimant undoubtedly has suffered a severe impairment". He goes on, however, and makes note of certain activities, to-wit: running a sweeper, making beds, washing windows, shopping, driving a car considerable distances, etc. He also notes the possibility of light or sedentary work and hence concludes that plaintiff's impairment is not of the degree of severity so as to meet the rigid definition of disability as provided by the Act.

On the basis of the entire record, the Court cannot find that there is any substantial evidence to support the decision of the Secretary. The reliance by the Examiner on sporadic non-activity by plaintiff does not justify the denial, nor is the Examiner's determination that the possibility of certain types of light work might be available, suitable to meet the test. The Examiner himself found plaintiff had "suffered a severe impairment". Perhaps most ...


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