United States District Court, Northern District of Illinois, E.D
March 23, 1984
CLARA JONES, PLAINTIFF,
MARGARET HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Clara Jones ("Jones") has sued for judicial review of a final
decision of the Secretary of Health and Human Services
("Secretary") revoking Jones's disability insurance benefits
and supplemental security income ("SSI") benefits. For a period
beginning February 8, 1978 Jones had received SSI benefits,
disability benefits and a period of disability as provided by
Social Security Act ("Act") §§ 216(i), 223 and 1602, 42 U.S.C. § 416(i),
423 and 1381a. On November 2, 1981 the Illinois
State Bureau of Disability Adjudication Services (the "Bureau")
found Jones was no longer disabled as of July 24, 1981 and
advised her she was last entitled to benefits in September
On October 22, 1982 Administrative Law Judge Robert Camenisch
("ALJ Camenisch" or simply the "ALJ") credited the Bureau's
finding Jones was no longer disabled but awarded her an extra
month's benefits.*fn1 Jones then exhausted her administrative
remedies in proper sequence (a process that resulted in the
ALJ's decision becoming Secretary's) and brought this action
against Secretary under Act § 205(g), 42 U.S.C. § 405(g).
As is customary in these actions, which come to this Court on
the administrative record and a decision by Secretary, the
parties have filed cross-motions for summary judgment. In this
case the ALJ's decision (which became Secretary's) rested on
his finding Jones's condition had improved to the point she can
once again perform her most recent job. Jones contends the
ALJ's decision should be set aside because his finding of
nondisability was unsupported by "substantial evidence" in two
1. Record evidence does not support Secretary's
first line of defense, that Jones can return to
her most recent job as an assembler.
2. Even assuming Secretary would invoke as a
fallback position that Jones is capable of doing
sedentary work in general (and that would involve
a strained reading of the ALJ's opinion*fn2),
record evidence also does not support her ability
to do so.*fn3
Jones is overwhelmingly right on the first issue, and is thus
entitled to reversal of Secretary's decision. Indeed, even had
the ALJ constructed his findings differently (as the second
argument assumes), termination of Jones's benefits still would
not be supported by substantial evidence.
Secretary's Position: Reasoned Decision or Unreasoning Policy?
Like all judges, this Court follows a pretty much
standardized format in opinion
writing. At this point it ordinarily turns to a statement of
the facts. But the extraordinary poverty of Secretary's
position — a distressingly recurrent phenomenon these past few
months — calls for extraordinary treatment.
This Court's docket reflects an overwhelming increase in the
incidence of Social Security appeals. Until very recently a
minimal number of cases, and a minimal amount of judicial time,
occupied this area. As of this month, though, this Court's
motion cards (a system required to avoid chaos in the business
of generating opinions) reflect ten such cases already in the
briefing process, and this Court's docket contains fully twice
that number that will enter the cross-summary-judgment motion
and briefing stage shortly.*fn4 But there is something far
more significant than that increase in sheer volume. Almost
without exception, the cases of this type that have become ripe
for decision during the immediate past have had two things in
1. an off-the-wall decision by an ALJ; and
2. poor lawyering by the government in an effort
to support an insupportable administrative
Nor has this Court been the unlucky victim of chance
assignments. Any reading of West's Federal Case News reflects
the same kind of increased numbers of cases in this field of
law all around the country, and the same kind of widespread
rejection of what Secretary is doing. Of course neither this
Court nor any other judge reverses Secretary's decisions
consistently (let alone as a matter of course). Each of us
engages in a conscientious application of the substantial
evidence test, so that every judge will sometimes uphold
Secretary's denial of benefits in a case even though the likely
result of a de novo review would have been to the contrary.
Secretary's policies have goaded the federal courts in the
Ninth Circuit into declaring virtually open warfare against
her. Finnegan v. Matthews, 641 F.2d 1340, 1345 (9th Cir. 1981)
and Patti v. Schweiker, 669 F.2d 582, 586-87 (9th Cir. 1982)
held Secretary could not terminate a claimant's benefits
without evidence of improvement of the claimant's condition
since the last hearing and disability determination. In direct
contravention of that holding, Secretary continued to terminate
disability benefits in the Ninth Circuit based solely on a
reevaluation of the evidence leading to the initial disability
determination. District Judge Gray of the Central District of
California issued a preliminary injunction against the
practice, and after some controversy over the propriety of a
stay of that injunction, the Court of Appeals affirmed. Lopez
v. Heckler, 572 F. Supp. 26 (C.D.Cal.), partial stay denied,
713 F.2d 1432 (9th Cir.), partial stay granted pending Court of
Appeals' decision, ___ U.S. ___, 104 S.Ct. 10, 77 L.Ed.2d 1431
(Rehnquist, J.), emergency application to vacate stay denied,
___ U.S. ___, 104 S.Ct. 221, 78 L.Ed.2d 217 (1983), District
Court aff'd, 725 F.2d 1489 (9th Cir. 1984). See also, e.g.,
Murray v. Heckler, 722 F.2d 499, 501-02 (9th Cir. 1983); Perry
v. Heckler, 722 F.2d 461, 464 (9th Cir. 1983).
This case is the worst one this Court has seen to date.
Because it epitomizes a disease that has become pandemic to
this entire area of law, it cries out for reexamination of
fundamental premises. If Secretary believes this kind of
activity is necessary to protect the fisc against some kind of
subtle raid in the form of unjustified welfare payments, it
would seem she ought to conduct a cost-benefit analysis. All
the governmental machinery occupied in this activity —
bureaucrats, medical examiners, ALJs, government lawyers,
courts — involve enormous costs. And as appears likely in this
case, awards of attorneys' fees against
the government under the Equal Access to Justice Act can
compound those costs. Before the government engages in its
current Pavlovian response of seeking to curtail the potential
award of such fees by congressional action, it ought to examine
the mote in its own eye.
No one, including this Court, wants to see undeserving
claimants receive benefits. But what appears to be happening is
that benefits are being denied by Secretary not on the merits
in individual cases, but on a more restrictive policy that is
result-oriented rather than justice-oriented. If so,
responsibility in government requires an "agonizing
reappraisal" (to lift a phrase from another era and another
context) of that policy.
This opinion must now revert to standard practice, for it is
necessary to give Secretary's position a decent burial. If the
funeral services are more extended than usual, it is in the
hope (though probably forlorn) that governmental attention may
be drawn to the whole issue and the necessary reevaluation
undertaken. Current policy simply creates too great a waste of
governmental resources, including the scarcest resource in the
entire system: judicial time.
Jones, a high school graduate, was 40 years old at the time
of the September 17, 1982 ALJ hearing. She has worked as an
assembler for various companies including (most recently)
Western Electric and Motorola. She hurt her back in 1976 and
could not work until March 1977. Then on February 8, 1978 she
hurt her back again while lifting a heavy fire extinguisher.
She returned to work for a few days after the injury, but the
pain became worse and she quit.
On October 24, 1978 Jones sought disability insurance
benefits, SSI benefits and a period of disability dating back
to February 8. Though the Bureau conceded she could not return
to her past job as an assembler, it denied her application on
the ground she could perform sedentary employment.
Administrative Law Judge Charles Frisch reversed that
determination July 15, 1980, finding Jones disabled and unable
to engage in any substantial gainful activity.
One year later Bureau began a reevaluation of Jones's claim.
At Bureau's request Jones restated her disabilities, and August
24 the Bureau informed Jones it no longer considered her
disabled. Although the Bureau's August 24 letter (R. 146)
stated, "We have obtained evidence to thoroughly document this
finding," the record shows it in fact had no new evidence other
than notes of an interview of Jones at which Jones made no
relevant admissions. Again the Bureau conceded Jones might not
be able to return to her work as an assembler but held she
could perform sedentary work (R. 147, 148, 151). On review of
Jones' termination ALJ Camenisch affirmed the Bureau's
decision, but on the basis Jones could return to her job as an
assembler rather than on the Bureau's ground Jones could
perform sedentary work.
During the relevant time period Jones's condition was
reviewed by many physicians and therapists whose opinions are
recounted in greater detail below. All experts (both Jones's
and Secretary's) agree Jones's problem results from a
"ruptured" or "herniated" disc in her lower back with resulting
"radiculopathy" in her legs. Jones wears a "TNS unit" that
emits vibrations to help minimize her back pain. In addition
some experts diagnose Jones as suffering from such added
problems as hypertension, tendonitis of the left shoulder,
headaches and obesity.
Secretary's decision terminating a claimant's benefits will
be reversed if it is not supported by "substantial evidence
based on the record as a whole." Whitney v. Schweiker,
695 F.2d 784, 786 (7th Cir. 1982). Substantial evidence "means such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion." Richardson v. Perales, 402 U.S. 389,
401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), quoting from
Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126
Here the ALJ's decision Jones is not "disabled" must be
measured against the standard of 42 U.S.C. § 1382c(a)(3):*fn5
(A) An individual shall be considered to be
disabled for purposes of this title if he is
unable 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 twelve months. . . .
(B) For purposes of subparagraph (A), an
individual 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
When termination of benefits rather than denial in the first
instance is at issue, Secretary's "substantial evidence" burden
is to justify that termination. Quoting and following
Miranda v. Secretary of Health, Education and Welfare,
514 F.2d 996, 998 (1st Cir. 1975) (footnote omitted), our Court of
Appeals has defined that standard in the context of benefits
termination (Cassiday v. Schweiker, 663 F.2d 745, 747 17th Cir.
[Substantial evidence] will normally consist of
current evidence showing that a claimant has
improved to the point of being able to engage in
substantial gainful activity; but it might also
consist of evidence that claimant's condition is
not as serious as was at first supposed.
Ability To Do Previous Work
As already indicated, the ALJ found Tones could return to her
past employment and based termination of benefits on that
finding. In a real sense the substantiality-of-evidence test
never comes into play here, for no evidence whatsoever supports
the ALJ's finding to that effect. ALJ Camenisch reasoned (R.
1. Jones's pain and discomfort limits her to
sedentary work (Finding 3).
2. Jones cannot perform "work involving lifting
or carrying more than minimal items, constant
standing, walking, climbing, repetitive bending or
twisting" (Finding 4).
3. Jones's past relevant work "did not require
the capacities referred to in the prior finding"
4. Thus Jones can return to her past work
ALJ Camenisch left the track at step 3 (Finding 5). While
crediting Jones's testimony (R. 68-69) she can only sit or
stand for 15 or 20 minutes at a time, he said (R. 48) Jones
testified her past work "permitted changes in posture from
sitting to standing." But the only record testimony on that
point is this colloquy (R. 65):
[ALJ:] Q. All right. And you worked at Western
Electric from time to time. Is that right?
[Jones:] A. Yes.
Q. Doing various kinds of soldering, assembly
and soforth [sic]?
A. Yes, all of those.
Q. Most of those jobs — in most of these jobs
were you standing up or sitting down?
To infer from Jones's curt answer to the last question that
Jones could sit or stand as she pleased at her work is a
stretch of normal usage. More important, the record establishes
she could not do so. Her August 17, 1981 Vocational Report (R.
162) reveals at Western Electric Jones would either sit all day
or stand all day.
Moreover at both Western Electric (id.) and Motorola (R. 163)
Jones had to bend and reach often. Thus no evidence at all
supports the ALJ's Finding 5 that Jones's past work did not
require constant standing, repetitive bending or other physical
exertion referred to in Finding 4. Because Finding 5 is
critical to the conclusion stated in Finding 6, that conclusion
too is not supported by substantial evidence.
Nor could the ALJ have taken some other route to the
destination that Jones could perform her past work. As already
indicated, the Bureau's determinations both upon its initial
denial of benefits (R. 89) and upon its later termination of
Jones's benefits (R. 147, 148, 151) conceded Jones could
not return to her past work. Indeed, a government vocational
specialist retained in anticipation of the hearing before ALJ
Camenisch also conceded Jones could not do so (R. 191).
Finally, a Situational Assessment Report from Marianjoy
Rehabilitation Hospital, compiled by Debbie Dolezal December 14
to 17, 1982 and submitted to Secretary's Appeals Council after
the ALJ rendered his decision, showed (R. 24-25) Jones could
not be productive (even though she was accurate) because her
back problems prevented her from working more than 15-20
minutes at a time and "1/2 day sessions were all that Clara
could physically tolerate."
Ability To Perform Sedentary Work
This opinion could well have ended with the last section.
After all, the ALJ found Jones could return to her past work,
and his decision is not fairly susceptible of any alternative
reading (see n. 2). Nonetheless both parties discuss the
propriety of the ALJ's Finding 3 that Jones's pain still
permits her to do sedentary work. And consideration of that
issue bears out the total poverty of Secretary's position in
this case. ALJ Camenisch could not have prevented reversal by
writing his findings differently.
Only a report by Dr. Francis Kafata, a non-examining
physician (R. 189) tends to support the proposition Jones can
perform sedentary work. It is written on the standard form
familiar to anyone with the unenviable task of reviewing
Secretary's benefits determinations. It contains check marks
and no real discussion of Jones's case (only the written words
"can ambulate w/cane"). It also contains (as always) the caveat
that the report is based on objective medical records only and
not on the applicant's subjective complaints.
It is true Secretary contracted to have Jones examined by an
independent physician, Dr. Subodh Shroff. But the resulting
report (R. 185-86) neither supports nor undercuts the notion
Jones can perform sedentary work. Instead it reviews only
Jones's physical condition and appearance. Dr. Shroff diagnosed
Jones as suffering from a ruptured disc with radiculopathy in
both legs, obesity and hypertension, a diagnosis consistent
with those of her treating physicians. While depreciating her
impairment somewhat by referring to the ruptured disc as
exhibiting "Minimal degenerative narrowing" (R. 186), Dr.
Shroff expressed no opinion on the ultimate question whether
Jones is disabled.
Such findings are at worst equivocal on the key issue here.
As against them Jones presents flat-out findings of disability
by no fewer than six physicians and other experts:
1. Debbie Dolezal, a situational assessment
evaluator for Marianjoy Rehabilitation Hospital,
found (R. 25) Jones "is unable to physically
perform at a full-time, competitive level of
2. Treating physician Dr. Philip Porter reported
(R. 26) Jones "remains unable to be gainfully
employed principally on the basis of her back and
3. Treating physician Dr. Richard Angell stated
(R. 36) Jones "has been disabled and still is and
probably will be unable to do heavy work or
prolonged sitting type of activities on a
4. Bryce Staker, a chiropractor who treated
Jones in 1978 and examined her again in 1981,
found (R. 37):
(a) Jones "may be able to engage in a
sedentary occupation, but only as a part time
basis and will probably always have pain."
(b) "[P]rolonged standing over thirty minutes
and prolonged sitting for over thirty minutes
will only aggrevate [sic] her condition."
5. Treating physician Dr. Oan Kang found (R.
196) Jones is "totally disabled at this time,
unless her basic underlying problem is corrected
by an operation, even though she probably will be
partially disabled because of the unstable back
6. Jones's regular rehabilitation counselor
Michael Melody stated (R. 197):
(a) Jones's "disability still precludes
employment because of pain. This prevents her
from doing any type of work requiring either
sitting or standing for more than very short
periods of time."
(b) Jones "continues to be vocationally
disabled, and will continue to be so in the
Evidence provided by a single non-examining physician is not
entitled to enough weight to overcome that of even one
examining physician (let alone a treating physician), unless
(1) other evidence in the record corroborates that of the
non-examining physician and (2) the ALJ articulates cogent
reasons for rejecting evidence of the examining physician.
Carver v. Harris, 634 F.2d 363, 364 (7th Cir. 1980) (per
curiam); Allen v. Weinberger, 552 F.2d 781, 786 (7th Cir.
1977). Here Jones tenders the findings of not one examining
physician, but three examining physicians who have treated
Jones over a period of years and three other experts familiar
with Jones's case. Only one conclusion is possible: No finding
of Jones's non-disability based on any reasoning could be
supported by substantial evidence.
No substantial evidence exists to support the ALJ's findings,
nor could any other reasoning grounded in the record lead to
termination of Jones's benefits. There is no genuine issue of
material fact, and Jones is entitled to a judgment as a matter
of law. Secretary's decision is reversed, and she is ordered to
pay Jones the benefits at issue in this action.*fn6
In light of the extreme weakness of Secretary's case and the
lame effort of government counsel to support it (in each
respect the worst this Court has seen in this class of
case),*fn7 Jones may well decide to pursue
the possibility of reimbursement of litigation expenses under
the Equal Access to Justice Act, 28 U.S.C. § 2412. However this
Court sees no purpose in deferring the entry of judgment
pending that possibility.