under Title II of the Social Security Act, as well as for
supplemental security income under Title XVI of the Social
Security Act. These claims allege disability, dating from
March 1, 1979, based on deterioration of a disc, spurs on the
spine, and arthritis.
On November 26, 1979, an appeal hearing was held by an
administrative law judge (ALJ) to review the Social Security
Administration's denial of disability benefits based on the
Administration's finding that the claimant was not currently
under a disability. Mr. Roy and his wife testified at the
hearing. Mr. Roy was not represented by counsel.
Mr. Roy testified as to his work experience. As lead man and
supervisor, the claimant loaded and unloaded reels of cables
and supervised others. His most recent work as a truck
mechanic he described as active, involving much bending,
lifting, and moving around. His earlier work, 2 years as a
maintenance repairman, the claimant and the ALJ categorized as
light work, with maximum lifting of 25 pounds; his duties as
an operator of a gas station included "pumping gas, changing
oil, repairing cars, ordering supplies, and keeping records
(R. 9, ALJ's Summary and Evaluation of the Evidence.) The ALJ
did not otherwise categorize the claimant's former work.
The claimant also testified as to his physical condition. He
stated that he has arthritis in his neck, spine, lower back,
elbows and shoulders, causing increasing pain in his
shoulders, right arm and hand, and back. He also suffers pain
when bending or reaching. He is unable to lift his arms above
his head and is able to lift only to just below shoulder
level. Although he has swelling and pain in his right hand,
Mr. Roy states that he "wouldn't want to try [to lift] any
more than 15 to 20 pounds at the most." (R. 43). He can stand
or sit 30 minutes to one hour before changing positions. The
claimant feels he can walk one-quarter mile.
The claimant also complained in the hearing about recent
stomach pains and heartburn which are aggravated by greasy or
spicy foods. Maalox tablets are taken daily to alleviate the
problem. The claimant testified to no other maladies. The
claimant has not been hospitalized in the last 10 years.
No vocational expert testified at the trial. None of the
doctors, neither the claimant's physician nor the Social
Security Administration's (SSA) physicians, testified at the
hearing. The record does, however, include the clinical
evaluation of each of these doctors with the exception of Dr.
Jones, one of the SSA's examining physicians who practices at
the Veterans Hospital (VA) in Danville, Illinois. Dr. Mundt,
the treating physician, diagnosed the claimant as having
severe degenerative arthritis of the spine. Dr. Mundt
recommended that Roy restrict his activities, not do any
stooping, prolonged standing or lifting, or lifting more than
10 pounds. Dr. Mundt also recommended that Roy quit his job as
a mechanic. Dr. Mundt prescribed treatment for pain which
consisted of medication, Indocin, and an occasional Excedrin,
accompanied by the application of wet heat. Dr. Nauman, the
physician to whom Dr. Mundt referred the claimant, made a
similar diagnosis of severe degenerative changes of the spine
and suggested avoidance of heavy lifting, lifting not more
than 20 pounds.
The SSA recommended that Mr. Roy be examined by Dr. Sukkar
and Dr. Jones at the VA in Danville, Illinois. Dr. Sukkar's
diagnosis differed from that of Drs. Mundt and Nauman. Dr.
Sukkar found a mild scoliosis and moderate or advanced
degenerative arthritis of the spine. Here the record is
unclear. Dr. Sukkar's diagnosis states "advanced degenerative
osteoarthritis of the spine". (R. 123) The x-ray impression
states "moderate degenerative changes." (R. 124). Dr. Sukkar
suggested only occasional lifting of a maximum of 20 pounds
and 6 hours of standing, walking or sitting with rest periods.
Dr. Jones' diagnosis is not in the record, although in the
hearing the claimant offered to procure that diagnosis. All
three doctors, Mundt, Nauman, and Sukkar, recommended light
work rather than work as a truck mechanic.
Two other doctors, Dr. "Dirkenmanp" (illegible signature)
and Dr. Phillips, after reviewing the information in the
claimant's Social Security file also found the claimant
capable of performing light work. Both these doctors felt the
claimant was capable of performing his past jobs as a factory
worker and lead man. The SSA vocational assessment specialist
also found the claimant capable of performing light work and,
specifically, his prior jobs as factory worker and lead man.
The claimant, however, has applied with his former employer,
General Cable Co., for janitorial work, and has been rejected
for an unspecified reason.
THE ALJ'S DECISION
The ALJ narrowed the issue to "whether the claimant's
impairments prevent him from performing his usual or other
work." The ALJ's final conclusion was that the claimant's
osteoarthritis and arthritic pain were not so severe as to
"prevent him from performing light work within his
occupational qualifications, such as his former work as a lead
man and supervisor, general maintenance repairman or gas
Based upon the weight of the evidence the
following findings are made:
1. The claimant continues to meet the special
disability earnings requirement of the Social
Security Act through December 31, 1982.
2. The claimant was born on March 21, 1926 and
completed six years of formal education. He
is fully literate.
3. The claimant has had prior work experience as
a cable company lead man and supervisor,
cable operator, general maintenance
repairman, gas station manager, auto
mechanic, and truck mechanic.
4. The evidence shows that the claimant is
afflicted with moderate degenerative
osteoarthritis of the spine.
5. The evidence of record fails to show that the
claimant is afflicted with a severe stomach
6. The claimant has some complaints of pain but
the evidence as a whole, including medical
findings, is not consistent with the
existence of intractable, incapacitating
7. The claimant's arthritic impairment does not
prevent him from performing light work not
involving frequent bending and stooping, such
as his former jobs as a lead man and
supervisor, general maintenance repairman or
service station manager.
8. In accordance with Regulations 404.1503(e)
and 416.903(e) of the Social Security
Administration the claimant has not been
under a "disability," as defined in sections
216(i), 223 and 1614(a)(3) of the Social
Security Act, as amended, at any time through
the date of this decision.
It is the finding and decision of the undersigned
Administrative Law Judge that the claimant, based
on his applications filed on March 5, 1979, is
not entitled to a period of disability or to
disability insurance benefits under the
provisions of sections 216(i) and 223 of the
Social Security Act, as amended, nor is he
eligible for supplemental security income under
the provisions of section 1614(a)(3) of the
Social Security Act, as amended.
S/ Irwin I. Blumberg
Irwin I. Blumberg
Administrative Law Judge
Date: February 11, 1980
The claimant argues that the ALJ's decision to deny
disability benefits is not supported by substantial evidence.
The claimant alleges that he has met his burden of proof by
creating a prima facie case of disability and that the ALJ
failed to shift the burden of proof on the issue of "alternate
employability" to the Secretary. The claimant also contends
that the ALJ failed to give sufficient weight to the treating
physician's evaluation of disability, disregarded the
plaintiff's testimony of subjective pain and disability, and
failed to call a vocational expert on the issue of alternative
The scope of review in a disability case is a very narrow
one. The court must examine the record to determine whether
the ALJ's decision is supported by substantial evidence and
whether the ALJ applied the proper legal standards in reaching
his decision. 42 U.S.C. § 405(g). Bartell v. Cohen,
445 F.2d 80, 82 (7th Cir. 1971). The court's task is not to resolve
conflicts in the evidence, nor is it to decide questions of
The ALJ's factual determinations must be upheld if they are
supported by substantial evidence based on the record as a
whole. See Stark v. Weinberger, 497 F.2d 1092 (7th Cir. 1974).
The substantial evidence test means that the ALJ's factual
findings must be upheld if they are supported by such relevant
evidence as a reasonable mind might accept as adequate to
support the conclusions. Schmoll v. Harris, 636 F.2d 1146 (7th
Cir. 1980); McNeil v. Califano, 614 F.2d 142, 145 (7th Cir.
1980) citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct.
1420, 1427, 28 L.Ed.2d 842; Allen v. Weinberger,
552 F.2d 781, 784 (7th Cir. 1977). However, this does not mean that the
court must blindly accept and rubber stamp the findings of the
Administrative Law Judge. Stark v. Weinberger, 497 F.2d 1092
(7th Cir. 1974), citing Byrd v. Richardson, 362 F. Supp. 957,
959 (D.S.C. 1973).
DEVELOPMENT OF THE RECORD
It is essential that the ALJ make explicit findings — on the
record — of facts that are essential to the conclusion of
ineligibility. Smith v. Secretary of HEW, 587 F.2d 857, 859
(7th Cir. 1978); Choratch v. Finch, 438 F.2d 342, 343 (3d Cir.
1971) The Administrative Law Judge has not only the power, but
he has the duty to investigate all matters in issue and to
develop the comprehensive record required for a fair
determination of disability. Diabo v. Secretary of HEW,
627 F.2d 278 (D.C. Cir. 1980), citing Daniels v. Mathews,
567 F.2d 845, 848 (8th Cir. 1977); Coulter v. Weinberger, 527 F.2d 224,
229 (3rd Cir. 1975); Clemmons v. Weinberger, 416 F. Supp. 623,
625 (W.D.Mo. 1976). This duty is spelled out in the Federal
Regulations which govern the conduct of the ALJ in disability
The presiding officer shall inquire fully into
the matters at issue and shall receive into
evidence the testimony of witnesses and any
documents which are relevant and material to such
matters. If the presiding officer believes that
there is relevant and material evidence available
which has not been presented at the hearing, the
presiding officer may adjourn the hearing or, at
any time prior to the mailing of notice of the
decision, reopen the hearing for the receipt of
20 C.F.R. § 404.927.
Moreover, the ALJ has been granted the power to issue
subpoenas requiring attendance and testimony of witnesses and
the production of evidence. 20 C.F.R. § 404.926.
The ALJ's duty to develop the relevant facts is particularly
clear where the claimant, as here, is not represented by
counsel. Diabo v. Secretary of HEW, 627 F.2d 278, 282 (D.C.
Cir. 1980), citing Gold v. Secretary of HEW, 463 F.2d 38, 43
(2d Cir. 1971); Cutler v. Weinberger, 516 F.2d 1282, 1296 (2d
Cir. 1975); Clemmons v. Weinberger, 416 F. Supp. 623, 625
(W.D.Mo. 1976). While the lack of counsel at the hearing,
standing alone, is not sufficient grounds for reversal or
remand, Kelley v. Weinberger, 391 F. Supp. 1337 (N.D.Ind. 1974);
see also Truss v. Richardson, 338 F. Supp. 741 (D.C.Mich.
1971), the Supreme Court and federal appellate and district
courts have emphasized the need for counsel in the
administrative hearing. See, e.g., Goldberg v. Kelly,
397 U.S. 254, 270, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970). Some
courts have reversed and remanded where the record was
insufficient to uphold a decision, in part because of the lack
of counsel. Kelley v. Weinberger, 391 F. Supp. 1337, 1343
(N.D.Ind. 1974), citing Gold v. Secretary of HEW, 463 F.2d 38
(2d Cir. 1972); Webb v. Finch, 431 F.2d 1179 (6th Cir. 1970);
Estep v. Richardson, 465 F.2d 969 (6th Cir. 1972); Alamo v.
Richardson, 355 F. Supp. 314 (D.C.P.R. 1972);
and Roman v. Secretary of HEW, 355 F. Supp. 646 (D.C.P.R. 1972).
Even if the claimant is represented by counsel, the duty
remains on the ALJ to develop the facts fully and fairly.
Kelley v. Weinberger, supra, at 1342; see also Garrett v.
Richardson, 363 F. Supp. 83, (D.C.S.C. 1973). The administrative
record must represent a full and fair hearing of the claim for
disability in order to comply with the basic requirements of
fairness and procedural due process. Richardson v. Perales,
402 U.S. 389, 401-02, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971);
Smith v. Secretary of HEW, 587 F.2d 857, 859 (7th Cir. 1978);
Diabo v. Secretary of HEW, 627 F.2d 278, 281 (D.C. Cir. 1980).
Clearly, failure to develop the record fully is cause for
remand. Smith, supra at 860. Williams v. Celebrezze,
359 F.2d 950, 954 (4th Cir. 1966).
In this case the precise foundation for the ALJ's ultimate
conclusion that the claimant is not under a disability is
unclear. The court should not be required to speculate as to
the basis for the ALJ's conclusion. To afford a proper review
of his decision by this court, the ALJ's findings must be
clearly stated on the record. Those findings are especially
essential to review here because the legal standard to be
applied depends on the factual findings.
The ALJ is held not only to an exacting standard in his
findings of fact but he must apply proper legal standards to
those facts in order to be upheld on review. Garrett v.
Richardson, 471 F.2d 598 (6th Cir. 1972); Knox v. Finch,
427 F.2d 919 (5th Cir. 1970); Dixon v. Gardner, 406 F.2d 1035 (4th
Cir. 1969); Flake v. Gardner, 399 F.2d 532 (9th Cir. 1968).
"The facts must be evaluated by the administrator in the light
of the correct legal standards to entitle the administrative
findings to the insulation of the substantial evidence test."
Black v. Richardson, 356 F. Supp. 861, 870 (D.S.C. 1973),
citing Branham v. Gardner, 383 F.2d 614, 626 (6th Cir. 1967).
The Social Security Administration has adopted regulations
setting forth the legal standards to be applied in disability
determination cases. 20 C.F.R. ch. III, sub. P. § 404.1501 et
seq. These regulations were adopted pursuant to the
Administration's rule making authority under 42 U.S.C. § 405(a).
The Administration's interpretations of the Social
Security Act are entitled to great deference, especially where
the Act and its legislative history support the
Administration's construction. Griggs v. Duke Power Co.,
401 U.S. 424, 433-34, 91 S.Ct. 849, 854-55, 28 L.Ed.2d 158 (1971).
When Congress has delegated the authority to make a rule,
rather than making the rule itself, the rule adopted by an
administrative agency is an extension of the statute, carrying
the force and effect of law. Rodriguez v. United States Parole
Commission, 594 F.2d 170, 173 (7th Cir. 1979) citing Geraghty
v. United States Parole Commission, 440 U.S. 945, 99 S.Ct.
1420, 59 L.Ed.2d 632 (1979); Davis, Administrative Law of the
Seventies, § 5.03 at 147 (1976).
The 1968 regulations governing disability determinations
were less extensive than the 1978 regulations. 33 F.R. 11749
(No. 162, Tues. Aug. 20, 1968). In 1968, the last two steps in
the sequential process were listed together:
(b) Conditions which constitute neither a listed
impairment or the medical equivalent thereof
likewise may be found disabling if they do, in
fact, prevent the individual from engaging in any
substantial gainful activity. Such an individual,
however, shall be determined to be under a
disability only if his physical or mental
impairment or impairments are the primary reason
for his inability to engage in substantial
gainful activity. In any such case it may be
established that his physical or mental
impairment or impairments are of such severity,
i.e. result in such lack of ability to perform
significant functions as moving about, holding
objects, hearing, speaking, reasoning, and
understanding, that he is not only unable to do
his previous work or work commensurate with his
previous work in amount of earnings and
utilization of capacities 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. . . .
Id. at 11750.