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WHITT v. SEC. OF HEALTH AND HUMAN SERVS.

February 5, 1988

IVY L. WHITT, PLAINTIFF,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES OF THE UNITED STATES OF AMERICA, DEFENDANT.



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

ORDER

Presently before this Court is Plaintiff, Ivy L. Whitt's (hereafter Whitt), appeal from an unfavorable Social Security benefits decision. Whitt is male, 46 years old, and has a 12th grade education. He is able to read and write. Whitt's past employment history includes one job, a billet yardman.

Whitt filed applications for disability insurance benefits and Supplemental Security Income on April 19, 1984. Administrative Law Judge Lincoln (hereafter ALJ) denied this application on September 17, 1984, on the basis that Whitt's condition did not constitute a severe impairment (Step 2).

This unfavorable decision was appealed and on April 17, 1986, and the Appeals Council also denied Whitt's application. However, the Appeals Council denied Whitt's application on slightly different grounds than the ALJ. Although the Appeals Council also found that Whitt's condition did not constitute a severe impairment, it proceeded in the analysis and concluded that denial of Whitt's application was more appropriately denied on the grounds that his present impairment did not prevent him from performing his past relevant work (Step 4).

On appeal, Whitt asserts three objections: (1) the certified transcript in this case is incorrect, and has been tampered with by the Government; (2) the Secretary of Health and Human Services has refused to make available to Whitt a copy of the oral hearing tape recording; (3) this Court should permit Whitt to submit additional medical records for the period of September 1984 through January 31, 1986.

Whitt appears before this Court as a pro se litigant, and has not filed a Motion for Summary Judgment. His brief does not request that this Court reverse the ALJ and Appeals Council's decisions. However, the Government has filed a Motion to Affirm in response to what has been titled "Plaintiff's Brief." Thus, the fourth issue before this Court is whether the Secretary of Health and Human Services' decision, denying Whitt benefits under the Social Security Act, is supported by substantial evidence in the record.

Whitt's first contention that the transcript in this case is inaccurate and has been tampered with by the Government appears to be both inappropriate and unfounded. Whitt asserts that he disagrees with the written version of the transcript and that it has been tampered with.

As the Government points out, the transcript submitted is a certified transcript, certified to by the transcriber as a true and complete transcription of the oral hearing held in this case. 42 U.S.C. § 405(g) provides: "As part of his answer, the Secretary shall file a certified copy of the transcript of record . . ." The statute requires no more of the Government. Further, Federal Rule of Evidence 901(b)(4) also asserts that a certified copy of a document is sufficient for admission into evidence. Therefore, this document is properly before this Court. Absent express and specific allegations by Whitt as to portions of the transcript that have been altered or tampered with by the Government, it is the Court's opinion that this claim cannot be sustained.

Whitt's second contention that the Secretary has refused to provide him with a copy of the tape recording of the oral hearing appears to have been resolved since the filing of Whitt's pleading. In its response, the Government asserts that Whitt's request for a copy of the tape was first made known to it in Whitt's pleading filed with this Court, entitled "Plaintiff's Brief." As such, the Government denies any "refusal" on the part of the Secretary to provide the tape. Further, the Government states in its responsive pleading that, now made aware of such request, the Government would be immediately providing Whitt with a copy of the tape requested. Therefore, this issue need not be resolved by the Court.

Thirdly, Whitt contends that he should be permitted to submit "vital medical data" for the period of September 1984 through January 31, 1986. The Government contends that a proffer of additional evidence at this time would be improper. The Government points to the fact that Whitt was permitted the opportunity during the Appeals Council's review of this case to submit additional evidence and argument (Tr. 136). However, he chose not to submit further documents (Tr. 139). As such, the transcript that is presently before this Court is a complete transcript that was considered by both the ALJ and the Appeals Council.

Absent some unusual or persuasive circumstances, it is the Court's opinion that it would be improper for additional evidence to be admitted at this time. It would appear that Whitt's failure to submit these additional medical records was not the result of an inability to obtain them from third parties or an improper evidentiary ruling by the Appeals Council, as are sometimes circumstances under which this Court permits the submission of additional evidence. In light of Whitt's right to make new application for benefits in the event new evidence has developed since the time of his initial filing and the review of his case by both the ALJ and the Appeals Council, the Court finds that it must deny Whitt's request to proffer additional evidence at this juncture.

The remaining issue before this Court is whether the ALJ and Appeals Council's decision in this case is supported by substantial evidence. Specifically, the Court must determine whether Whitt has met his burden of proving an inability to perform his past relevant work.

In order to be entitled to disability benefits under SSI, a plaintiff must show that his or her inability to work is medical in nature and that he is totally disabled. Economic conditions, personal factors, financial considerations, and attitudes of employers are irrelevant in determining whether a plaintiff is eligible for disability benefits. See, 20 C.F.R. §§ 404.1566, 416.966 (1986).

The establishment of disability under the Social Security Act is a two-step process. First, the plaintiff must be suffering from a medically determinable physical or mental impairment, or combination of impairments, 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. 42 U.S.C. § 1382c(a)(3)(A). Second, there must be a factual determination that the impairment renders the plaintiff unable to engage in any substantial gainful employment. McNeil v. Califano, 614 ...


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