the magistrate's observation that the ALJ's findings concerning the
limitations of Prill's functional capacity due to epilepsy implied
intermittent rather than sustained work capacity, the Secretary states
that it is not the burden of the Secretary to establish a continuous
period of "non-disability". (D.O. 2). The Secretary maintains that the ALJ
correctly relied on the medical-vocational guidelines to determine
whether Prill could work in a substantial gainful activity and that Prill
did not meet his burden of proving that his nonexertional impairments
preclude the performance of a substantial gainful activity. (D.O. 2-3). In
conclusion, the Secretary argues that substantial evidence supports the
ALJ's findings of fact as to Prill's residual capacity to perform medium
work activities that are not dangerous and are undertaken in a "clean"
environment. (D.O. 4).
A district court's review of a decision by the Secretary in a
disability benefits case is limited to a determination of whether
substantial evidence is present in the administrative record as a whole
to support the Secretary's decision. Johnson v. Weinberge, 525 F.2d 403,
406-07 (7th Cir. 1975). The district court cannot make its own appraisal
of the evidence. Id. at 406-407. "Substantial evidence" is defined as
"such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Allen v. Weinberger, 552 F.2d 781, 784 (7th Cir.
1977), quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420,
1427, 28 L.Ed.2d 842 (1971). If there is a conflict in the evidence, the
burden is upon the claimant to prove that he or she meets the
requirements of eligibility. Johnson v. Weinberger, 525 F.2d at 407. In
addition, an ALJ's credibility determination regarding subjective
evidence should be given considerable weight by the court. Bibbs v.
Secretary of Health, Education & Welfare, 626 F.2d 526, 528 (7th Cir.
In order to qualify for a period of disability and disability insurance
benefits under the Act, an individual must meet the insured status
requirements under the Act, be under the age of sixty-five, file an
application for disability insurance benefits and a period of disability,
and be under a disability as defined in the Act.*fn3 42 U.S.C. § 416
(i), 423; Griffin v. Weinberger, 407 F. Supp. 1388, 1392 (N.D.Ill.
1975), aff'd, 539 F.2d 712 (7th Cir. 1976). The determination of a
disability which entitles a claimant to benefits under the Act is a
two-step process: (1) there must be a 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
months*fn4 and (2) there must be a factual determination that the
impairment renders the plaintiff unable to engage in any substantial
gainful employment. McNeil v. Califano, 614 F.2d 142, 143 (7th Cir.
1980); Lieberman v. Califano, 592 F.2d 986, 989 (7th Cir. 1979); 42
U.S.C. 423(d)(1)(A). The district court must consider four elements of
proof in determining whether a claimant is disabled under the Act: (1)
objective medical facts or clinical findings; (2) diagnosis of examining
physicians; (3) subjective evidence of pain and disability as testified to
by the claimant and as observed by others; and (4) the claimant's age,
education, and work history. Johnson v. Weinberger, 525 F.2d at 407.
For several reasons, this court finds that "the ALJ erred in reaching
his conclusion that Prill was not disabled and could perform "medium work
on a sustained basis". First, the ALJ failed to support by substantial
evidence his finding that the level of severity of Prill's impairment was
not great enough to be deemed disabling. Second, the ALJ should have
expressly considered the December 1979 and January 1980 statements of
Prill's treating physician. Third, the ALJ applied an improper legal
standard to show that Prill is able to perform a form of substantial
gainful employment other than his previous work. Fourth, the ALJ failed
to expressly consider Prill's subjective complaints to which he and his
wife testified. Finally, the ALJ came to an inconsistent finding of fact
when he determined that Prill's seizure disorder is controlled by
With respect to the first reason, the court is in agreement with those
portions of the magistrate's report which find that the ALJ failed to
state upon what evidence he based his conclusion that Prill's physical or
mental impairments are not disabling. The severity of an impairment is
judged by 20 C.F.R. Part 404, Subpart P, App. 1 (1982). The ALJ applied
§§ 11.02 and 11.03 of that regulation to determine the severity of
Prill's neurological problems. Yet despite his acknowledgement that Prill
has a longstanding seizure disorder, is subject to seizures occurring
weekly or greater, and takes Dilantin and phenobarbital for his illness,
the ALJ ruled that the level of severity for a finding of "disabled" was
not met. The conclusion of the ALJ is not supported by substantial
The court also concurs with the magistrate's observation that
apparently no weight was accorded certain statements of Prill's treating
physician in determining the severity of Prill's impairment. A claimant's
physical or mental impairment must be "shown by medically acceptable
clinical and laboratory diagnostic techniques." 42 U.S.C. § 423
(d)(3); 20 C.F.R. § 404.1508, 404.1526(b) (1982); Lieberman v.
Califano, 592 F.2d 986 at 989. The weight to be given a physician's
statement on a claimant's disability is determined by the support of
medical and clinical findings. Sykes v. Finch, 443 F.2d 192, 194 (7th
Cir. 1971); Allen v. Weinberger, 552 F.2d at 785. It is possible that a
claimant's personal physician might "lean over backward" to support the
application for disability benefits; therefore the fact that he has
greater knowledge of the claimant's medical condition is not entitled to
controlling weight. Cummins v. Schweiker, 670 F.2d 81, 84 (7th Cir.
1982); Carter v. Schweiker, 535 F. Supp. 195, 204 (S.D.Ill. 1982).
However, the opinion of an
examining physician that the claimant is totally disabled, though phrased
as an ultimate conclusion on the question presented to the Secretary, is
at least entitled to consideration as an indication of how severe the
patient's impairment was at the time of the examination. Allen v.
Weinberger, 552 F.2d at 785. As in this case, where there is no dispute
over the existence of a physical or mental impairment, such an opinion,
standing alone, may establish total incapacity for substantial gainful
activity within the meaning of 42 U.S.C. § 423; Allen v. Weinberger,
552 F.2d at 785-86. Even though Dr. Borzsony's evaluations of Prill's
condition were not substantiated by clinical or medical reports, the ALJ
should have considered Dr. Borzsony's statements of December 1979 and
January 1980.*fn5 These statements indicate that Prill's epilepsy was no
longer under control despite an increase in medication and that Prill
should not be allowed to work for fear of injuring himself or others.
Upon remand, the ALJ should expressly consider Dr. Borzsony's statements
and take additional evidence on Prill's physical condition to establish
the level of severity of his impairment.
In addition, the magistrate correctly observed that the ALJ applied an
improper legal standard to show that Prill could perform a form of
substantial gainful employment other than his previous work. The mere
presence of an impairment, without a showing that it prevents a claimant
from engaging in a substantial gainful activity, does not constitute a
disability as defined under the Act. Skenandore v. Califano,
473 F. Supp. 1362, 1363 (E.D.Wis. 1979). Even where epilepsy renders a
person disabled, the claimant's obligation to demonstrate that he is
unable as a result to engage in any substantial gainful activity is not
eliminated. Figueroa v. Secretary of Health, Education & Welfare,
585 F.2d 551 (1st Cir. 1978). Yet if a claimant establishes that his
disability prevents him from returning to his prior employment, the
claimant's burden of production is met and the burden shifts to the
Secretary to show that there exists some other form of substantial
gainful employment that the claimant can perform. Smith v. Secretary of
Health, Education and Welfare, 587 F.2d 857, 861 (7th Cir. 1978); Stark
v. Weinberger, 497 F.2d 1092, 1097, 1098 (7th Cir. 1974), see also Cowart
v. Schweiker, 662 F.2d 731, 736 (11th Cir. 1981). To show some other form
of employment, the Secretary may in some circumstances rely on the grid
(or table) rules in 20 C.F.R. Part 404, Subpart P, App. 2, §§ 200 et
seq. (1982). Indeed, reliance on these medical-vocational guidelines to
determine whether an individual who is disabled from doing his previous
work can find other substantial gainful employment does not violate the
statutory requirement that the Secretary's decision on a disability claim
be based on substantial evidence. Cummins v. Schweiker, 670 F.2d at 83.
However, the regulatory tables which purport to take administrative
notice of the existence of jobs in the national economy do not apply in
cases where the claimant alleges nonexertional kinds of impairments.
Cowart v. Schweiker, 662 F.2d at 736. Nonexertional limitations include
an illness such as epilepsy, see 20 C.F.R. § 404.1545 (d) (1982)*fn6
and the need to avoid breathing certain fumes or dust. See 43 Fed.Reg.
55,349 and 55,358 (1978); Roberts v. Schweiker, 667 F.2d 1143, 1145 (4th
Cir. 1981). Thus, for example, if an ALJ recognizes that a claimant
should not work in a
dust and fume-filled environment it is reversible error for him to
mechanically apply the regulatory tables alone without recourse to other
evidence in determining the capability of a claimant to perform
alternative work available in the national economy. Roberts v.
Schweiker, 667 F.2d at 1145.
Applying these principles to this case, the ALJ did not rely on the
appropriate standard to determine that Prill is able to perform other
work. The ALJ acknowledged Prill's epilepsy and chronic obstructive
pulmonary disease and he found that Prill could no longer perform his
previous work as a carpet installer. Thus, the burden shifted to the
Secretary to show that Prill could perform some other type of substantial
gainful employment. In reaching his conclusion that the Secretary had met
his burden, the ALJ relied solely on the regulatory table in 20 C.F.R.
Part 404, Subpart P, App. 2, Table No. 3, § 203.00, Rule 203.15. Such
reliance was error because both of Prill's impairments, epilepsy and
emphysema, are nonexertional. Since the use of the table was
inappropriate, the issue of whether Prill can perform "medium work on a
sustained basis" need not be addressed here and a remand is appropriate.
The ALJ also erred in failing to expressly consider Prill's subjective
complaints to which he and his wife testified. An ALJ can reject
subjective complaints after weighing them against the other evidence in
the record while keeping in mind the interest and credibility of the
witnesses. Reyes Robles v. Finch, 409 F.2d 84, 87 (1st Cir. 1969);
Peterson v. Gardner, 391 F.2d 208, 209 (2d Cir. 1968). However, it is
error for an ALJ to fail to expressly consider such complaints, DePaepe
v. Richardson, 464 F.2d 92, 99 (5th Cir. 1972); Storck v. Weinberger,
402 F. Supp. 603, 607 (D.Md. 1975), because subjective complaints alone
may support a claim for disability benefits. Bittel v. Richardson,
441 F.2d 1193, 1195 (3d Cir. 1971); Gronbeck v. Schweiker, 534 F. Supp.
at 646. An explanation from the ALJ of the reason why probative evidence
has been rejected is required so that the reviewing court can determine
whether the reasons for rejection were improper. Cotter v. Harris,
642 F.2d 700, 706-707 (3rd Cir. 1981); see also Gronbeck v. Schweiker,
534 F. Supp. at 646 and Reardon v. Weinberger, 387 F. Supp. 1210, 1212
(E.D.Pa. 1975). In this case, since the ALJ did not mention Prill's
increased number of hours of sleep per day, his daily feelings of
whoosiness, his increased irritability, or his nighttime incontinence,
the court cannot make such a determination.
Finally, although the magistrate in her report and recommendation did
not refer to it, this court finds an inconsistent finding of fact in the
ALJ's holding. Prill's treating physician stated that Prill had been
given high doses of Dilantin and sedatives for his epileptic condition.
(R. 93). His medication was increased to the point where his doctor would
not allow him a greater dosage. (R. 46).*fn8 The ALJ found
Prill's condition to be "under fairly good control with Dilantin and
phenobarbital," but on the other hand declared that the frequency of
Prill's seizures is weekly or greater. (R. 11). These are inconsistent
findings of fact which do not support the ALJ's conclusion that Prill's
disorder is controlled by medication. See Gronbeck v. Schweiker, 534 F.
Supp. at 645.
Section 405(g) of the Act expressly permits a reviewing district court
to enter judgment upon "the pleadings and transcript of record" which
entitles the court to utilize a summary judgment procedure.
42 U.S.C. § 405 (g); Milton v. Harris, 616 F.2d 968, 975 (7th Cir.
1980) (per curiam). Summary judgment may be entered in a case "if the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R. Civ.P. 56(c). Additionally, a
reviewing court can for "good cause" remand a disability claim to the
Secretary for the taking of additional evidence. 42 U.S.C. § 405
(g). Then, the Secretary may modify or affirm his findings of fact or his
decision or both. 42 U.S.C. § 405 (g). In this case, since the ALJ
used an improper legal standard and did not fully develop or consider
evidence in the record, the court concludes that summary judgment should
be denied to both the Secretary and Prill.
Accordingly, the court adopts the magistrate's report and
recommendation and remands the case to the Secretary for a complete
development of the record and the taking of additional evidence.
It is so ordered.