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March 23, 1984


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


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 1981.

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 respects:

    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?

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 common:

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 ...

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