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January 31, 1969


The opinion of the court was delivered by: Will, District Judge.


This is a suit to review a final decision of the Secretary of Health, Education and Welfare who, acting under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), denied plaintiff's application for the establishment of a period of disability under section 216(i) of the Act, 42 U.S.C. § 416(i), and for disability insurance benefits, as provided by section 223 of the Act, 42 U.S.C. § 423. This action was previously before this court; and the Court, on its own motion, on April 5, 1967, remanded the case to the Secretary of the Department of Health, Education and Welfare, directing that additional evidence be obtained. Now that additional evidence has been secured and the Secretary's final report and decision as to disability is before the court, each party has moved for summary judgment.

The issue before this court is whether the decision of the Secretary to deny Mr. Taylor the benefit of disability insurance under the Social Security Act is supported by substantial evidence on the whole record. 42 U.S.C. § 405(g); See, also, Moon v. Celebrezze, 340 F.2d 926, 930 (7th Cir. 1965), and cases cited therein. The provisions of the Social Security Act which constitute the frame work for the necessary gathering of evidence on which the Secretary's decision must be based, read in pertinent part as follows:

(d)(1) The term "disability" means —

      (A) 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 12 months; * *

(2) For purposes of paragraph (1)(A) —

      (A) an individual (except a widow, surviving
      divorced wife, or widower for purposes of section
      402(e) or (f) of this title) shall be determined
      to be under a disability only if his physical or
      mental impairment or impairments are of such
      severity that he is not only unable to do his
      previous work but cannot, considering his age,
      education, and work experience, engage in any
      other kind of substantial gainful work which
      exists in the national economy, regardless of
      whether such work exists in the immediate area in
      which he lives, or whether a specific job vacancy
      exists for him, or whether he would be hired if
      he applied for work. For purposes of the
      preceding sentence (with respect to any
      individual), "work which exists in the national
      economy" means work which exists in significant
      numbers either in the region where such
      individual lives or in several regions of the
    (3) For purposes of this subsection, a "physical or
      mental impairment" is an impairment that results
      from anatomical, physiological, or psychological
      abnormalities which are demonstrable by medically
      acceptable clinical and diagnostic techniques.
      42 U.S.C. § 423.

It has been the Secretary's consistent judgment that the only objective medical evidence of plaintiff's physical condition during the period of insured status which should be considered as interfering with the claimant's ability to work is evidence of "moderate osteoarthritic change." On the basis of this evidence, together with the testimony of physicians who examined the claimant and stated that he should be able to perform light work, and the listing by a vocational expert of some jobs which a man in the claimant's condition could have performed during the period of insured status, the Secretary concluded that the claimant did not suffer from a "disability" as that term is defined under the Social Security Act. However, a review of the record established before the Secretary reveals that, in making this determination, the Secretary has subtly but surely misconstrued the mandate embodied by Congress in the Social Security Act.

To begin with, while Congress amended the Social Security Act in 1965, among other purposes, "to reemphasize the predominant importance of medical factors in the disability determination," S.Rep. No. 744, 90th Cong., 1st Sess., in U.S. Code Congressional and Administrative News, 1967, Vol. 2, p. 2882, it has never been Congress' intention that administration of the Act depend on anything other than appraisal of a particular individual's case. The record in the instant case discloses, however, that by virtue of the manner in which the Secretary has considered the objective medical evidence, there has been a shift of focus away from the individual claimant, Mr. Ben Taylor, to a category of people with "moderate osteoarthritic changes." The Secretary's first and basic conclusion in this case is that although there is evidence that may tend to indicate physical infirmity other than moderate osteoarthritic changes, the arthritic condition is the only infirmity which was definitely established and therefore the question of disability must be disposed of by asking whether an individual with an arthritic problem such as Mr. Taylor's could have been employed during the period of insured status. But as plaintiff's counsel points out, a more complete summary of the evidence might describe claimant's condition during the period of insured status to include degenerative changes in his spine, i.e., the bulging of the annulus at the L2-3, L3-4 and L4-5 disc levels, vascular insufficiency of both lower extremities, neurological involvement following a luetic infection, and neurological symptoms occurring as severe pain in claimant's legs and elsewhere.

Testimony suggests that this latter condition is due to heavy treatment on claimant's left hip and subsequent positive myelogram and spinal fluid examination. Our recognition of this description of the evidence should not be understood as a second-guessing of the Secretary's determination that what might be described as "moderate osteoarthritic changes" was the only definitely established physical disability during the period of insured status. However, the objective medical evidence comprehensively viewed lays a firm basis for the significance of another basic category of evidence which is presented in this case and is not adequately reflected by the Secretary's determination.

It has been well established through application and interpretation of the provisions of the Social Security Act that an essential category of evidence which may be presented and may be essential to resolution of the issue of disability is subjective evidence of pain and disability testified to by plaintiff, corroborated by the testimony of others and the record of work experience, and possibly founded on objective physical evidence as are Mr. Taylor's complaints of recurring severe pain and disability in the instant case. The significance of this subjective evidence has, for instance, been outlined by the Fourth Circuit Court of Appeals in Underwood v. Ribicoff, 298 F.2d 850 (4th Cir. 1962) in its statement that

  * * * there are four elements of proof to be
  considered in making a finding of Claimant's ability
  or inability to engage in any substantial gainful
  activity. These are: (1) the objective medical facts,
  which are the clinical findings of treating or
  examining physicians divorced from their expert
  judgments or opinion as to the significance of these
  clinical findings, (2) the diagnoses, and expert
  medical opinions of the treating and examining
  physicians on subsidiary questions of fact, (3) the
  subjective evidence of pain and disability testified
  to by Claimant, and corroborated by his wife and his
  neighbors, (4) Claimant's educational background,
  work history, and present age. Id. at 851.

This same categorization of the necessary proof has been repeated with approval, Thomas v. Celebrezze, 331 F.2d 541, 545 (4th Cir. 1964). But whatever the breakdown of evidence, subjective evidence of pain and disability testified to by the claimant is generally acknowledged to be relevant under the Act. Indeed, very substantial precedent exists in support of the proposition that "[s]ubjective complaints of pain may entitle a claimant to disability benefits under the Social Security Act even though such complaints are not ...

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