Appendix — Williams v. Heckler
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FILED
MAY 18 1964
ALEXANDER L. STEVAS
NO. CUERK
SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1983
RICHARD E. WILLIAMS,
Petitioner,
VS
SECRETARY OF HEALTH,
EDUCATION & WELFARE,
Respondent.
ON APPEAL FROM THE UNITED STATES COURT
FOR THE SECOND CIRCUIT
PETITIONER’S APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
RICHARD E. WILLIAMS, PRO SE
225 STONY CREEK ROAD
BRANFORD, CONNECTICUT 06405
10
11
APPENDIX A
UNITED STATES COURT OF APPEAL
SECOND CIRCUIT
No. 83-6139
At a Stated Term of the United States Court of Appeals, in and
for the Second Circuit, held at the United States Court House, in
the City of New York, on the twenty-ninth day of December, one
thousand nine hundred and eighty three.
Present:
Hon. James L. Oakes,
Hon. Thomas J. Meskill, Circuit Judges.
Hon. Edward R. Neaher, District Judge.*
i I coo cab cds ven dceasssdacd cunbess Appellant,
Vv.
Secretary of Health and Human Services, ............. Appellee.
N.B_ Since this statement does not constitute a formal opinion of
this court and is not uniformly available to ali parties, it shall not be
reported, cited or otherwise used in unrelated cases before this or
any other court.
ORDER
This is an appeal by Richard E. Williams, pro se, from a
judgment of the United States District Court for the District of
Connecticut, T. F. Gilroy Daly, Chief Judge, affirming the Sec-
retary’s denial of Williams’ application for disability insurance
benefits. We affirm.
* Of the Eastern District of New York, sitting by designation
12
This case, as the parties are well aware, has an extensive history
and has generated an impressive legal record to accompany its
substantial medical record. As is often the case, the passage of time
has not resulted in the parties coming any closer together, but rather
has seemingly proliferated disputed issues. For purposes of this
appeal, however, we are basically confronted with two questions:
whether the Secretary’s decision was supported by substantial
evidence on the record, Richardson v. Perales, 402 U.S. 389 (1971),
and whether correct legal standards and legitimate processes were
employed in reaching that decision.
There is simply no question but that substantial evidence
supported the Secretary’s decision that Williams was not disabled.
While the administrative law judge (“ALJ”) acknowledged that the
appellant suffered pain and may have been somewhat incapacitated,
he also found that Williams’ complaints were exaggerated and that
he was capable of performing a variety of sedentary jobs, and based
these findings on careful consideration of the voluminous medical
evidence, including the testimony of numerous doctors who ex-
amined Williams. Among the other specific factors relied on by the
ALJ were that Williams was capable of taking care of his personal
needs during the day when his wife and daughter were away, that
Williams had never had surgery or taken major pain medication, as
well as Williams’ appearance and demeanor at the hearing. While
subjective pain may serve as the basis for establishing disability, “the
Secretary is not obliged to accept without question” the credibility
of a claimant's iestimony, and “{t] he ALJ has discretion to evaluate
the credibility of a claimant and to arrive at an independent
judgment, in light of medical findings and other evidence ...”
Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).
In addition, the Secretary also met her burden in establishing
that Williams can perform sedentary work. See Parker v. Harris,
626 F.2d 225 (2d Cir. 1980). While the opinion of the appellant's
treating physician, Dr. DePonte, that Williams was disabied would
be binding on the factfinder unless contradicted by substantial
evidence to the contrary, Eidner v. Secretary of Health, Education
and Welfare, 616 F.2d 63, 64 (2d Cir. 1980), there was, in this case,
precisely such contradictory evidence, proffered by a number of
13
doctors, which certainly was adequate to satisfy the Secretary's
burden. The ALJ also took affirmative measures to aid in his
evaluation of this evidence. As the court below observed, the ALJ
did not merely take administrative notice of undemanding jobs
which appellant might do, but rather called an expert witness who
testified with specificity regarding appellant’s ailments and the jobs
of a sedentary nature that would be best suited for him.
Williams also makes a number of claims of alleged administrative
“procedural deficiencies,” and constitutional due process violations.
The most serious concern |) the ALJ’s refusal to disqualify himself;
2) the ALJ’s refusal to permit Williams’ wife to act as a “co-
representative” at the hearing; 3) the ALJ’s refusal to subpoena
certain medical witnesses; and 4) the district court's alleged failure
fully to consider all issues raised by appellant below.
The Secretary’s decision on disability, from which this appeal is
taken, was the product of a remand from the district court in June,
1980. This remand was ordered to clarify and supplement the record
and to permit Williams to be represented by counsel. Williams
thereafter signed a form authorizing the appointment of his lawyer,
who did then represent him at the hearing. It was neither improper
nor inappropriate for the ALJ to accept Williams’ authorization of
his lawyer as his representative and to refuse to allow appellant's
wife to serve as a second representative.
At the commencement of the hearing counsel withdrew the
request for the ALJ’s disqualification. The attorney also agreed to
the use of interrogatories, rather than insisting on subpoenaing
certain witnesses. Needless to say, the actions of Williams’ attorney
are binding on Williams. See, e.g., Link v. Wabash Railroad Co.,
370 U.S. 626 (1962).
Williams’ allegations of improper, “Ex-parte” actions by the
ALJ are utterly without merit. The ALJ’s management of the
case—which involved three district hearings and generated a large
record—was in all respects proper.
Finally, there is no merit to the argument that the district court
violated his due process rights by not discussing ali of his contentions
14
in its written opinion; this has never been necessary. In any event we
have considered all of his claims and rejected each one.
Judgment affirmed.
Circuit Judges
District Judge.
APPENDIX B
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
No. 83-6139
At a Stated Term of the United States Court of Appeals, in and
for the Second Circuit, held at the United States Court House, in
the City of New York, on the twenty-seventh day of February, one
thousand nine hundred and eighty four.
Es PE cuccnchocchen wea vneeene Plaintiff- Appellant,
v.
Secretary of Health, Education & Welfare, .. Defendant-Appellee.
A petition for rehearing containing a suggestion that the action
be reheard in banc having been filed herein by plaintiff-appellant,
Richard E. Williams, pro-se,
Upon consideration by the panel that heard the appeal, it is,
15
Ordered that said petition for rehearing is DENIED.
It is further noted that suggestion for rehearing in banc has been
transmitted to the judges of the court in regular active service and to
any other judge that heard the appeal and that no such judge has
requested that a vote be taken thereon.
A. Daniel Fusaro, Clerk
by Francis X. Gindhart,
Chief Deputy Clerk
APPENDIX C
DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE
SOCIAL SECURITY ADMINISTRATION
BUREAU OF HEARINGS AND APPEALS
Name and Address of Claimant:
Kichard E. Williams
225 Stony Creek Road
Branford, CT 06405
NOTICE OF DISMISSAL
Please Read Carefully
If you disagree, in whole or in part, with the enclosed order of
dismissal, you may request the Appeals Council to review it.
However, your request for review must be filed within 60 days
following the date shown below.
You, or your representative, may file the request for review at
your local social security office, or it may be filed with the hearing
eerie
16
office or the Appeals Council.
This notice and enclosed copy of order of dismissal mailed
November 17, 1978.
ce:
Name and Address of Representative:
(none)
APPENDIX D
DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE
SOCIAL SECURITY ADMINISTRATION
' BUREAU OF HEARINGS AND APPEALS
ORDER
In the case of
Richard E. Williams, (Claimant)
Claim for
Period of Disability, Disability Insurance Benefits and Supple-
mental Security Income
Social Security Number
047-28-0012
The hearing was held on November 7, 1978.
At the hearing the claimant objected to the exhibits being
accepted as evidence.
There being no evidence of record, the claimant failed to sustain
the burden of proof for his claim; accordingly, the matter is hereby
dismissed.
17
Claimant's objection to the evidence amounted to an oral
request at the hearing for a dismissal.
Regulations 404.935 of Title I] and 416.1449 of Title XVI of the
Social Security Act, as amended, provides that a party may request
a dismissal by orally stating such request at the hearing. Where a
request for a hearing is withdrawn or dismissed, the findings in the
initial or reconsidered determination are final and binding.
Joseph A. Beauchemin
Administrative Law Judge
Bureau of Hearing & Appeals
770 Chapel St., Suite 2F
New Haven, CT 06510
Date: December 17, 1978
APPENDIX E
DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE
SOCIAL. SECURITY ADMINISTRATION
BUREAU OF HEARINGS AND APPEALS
ORDER OF APPEALS COUNCIL
Remanding Case To Administrative Law Judge
In the case of
Richard E. Williams
Claim for
Period of Disability, Disability Insurance Benefits and Supple-
mental Security Income
Social Security Number
047-28-0012
This case is before the Appeals Council on the claimant's request
for review of the administrative law judge’s order of dismissal issued
on December 17, 1978.
The administrative law judge dismissed the claimant's request
for the hearing on the basis that his objections to the exhibits
selected by the administrative law judge as evidence for the record
constituted a request for dismissal. There is no indication here,
however, that the claimant intended such a result. The causes for
dismissal are specified in sections 404.935, 404.936, 404.937, 416.1449,
416.1450, and 416.1451 of the Regulations and include a party's
application for dismissal express/y made orally at the hearing or in
writing, abandonment of party, res judicata, no right to a hearing,
or hearing request not timely filed. Failure to submit evidence may
be a cause for reaching an unfavorable decision because an
applicant for disability insurance benefits must “submit medical
evidence showing the nature and extent of such individual's impair-
ment or impairments during the time he alleges he was under a
disability” (sections 404.1523 and 416.923), but it is not a basis for
dismissal.
Here the claimant was willing to testify, and even if the judge
wanted to exercise his discretion to sustain claimant's motion not to
admit the previously submitted medical evidence into the record, it
was the administrative law judge's regulatory obligation to “inquire
fully into the matters at issue” and to “receive in evidence the
testimony of witnesses and any documents which are relevant and
material to such matters” (section 404.927 and section 416.1441).
Indeed, if the administrative law judge believes that “there is relevant
and material evidence available which has not been presented at the
hearing” he may at any time prior to mailing the notice of the
decision reopen the hearing for the receipt of such evidence.
It is clear that the administrative law judge did not act in this
case in conformance with this hearing procedure.
The Appeals Council notes also that the administrative law
judge disqualified the claimant's wife, Lynn C. Williams, as his
representative, but the judge failed to provide any specific reason for
19
such action. Pursuant to sections 404.972 (b) and 416.1503(b), a
non-attorney may be appointed to represent a claimant before the
Social Security Administration, provided such person “(1) is of
good character, in good repute, and has the necessary qualifications
to enable (her) to render valuable assistance to an individual in
connection with his claim, (2) has not been disqualified or suspended
from acting as a representative in proceedings before the Social
Security Administration, and (3) is not...otherwise prohibited from
acting as a representative...” In the present case, it appears that the
claimant is convinced that his wife is qualified to render him
valuable assistance in connection with his claim, and there is no
evidence that she is otherwise unqualified. If the administrative law
judge finds that Mrs. Williams does not meet the Regulatory
qualifications, he will have to specify the basis for such a finding.
In light of the foregoing conditions, it is the opinion of the
Appeals Council that the administrative law judge's order of
dismissal and his disqualification of the claimant's representative
were inconsistent with the authority provided in the cited Regula-
tions, and these actions therefore constitute an abuse of discretion.
Accordingly, the Appeals Council grants the request for review
and, pursuant to sections 404.938 and 404.950 of Regulations No. 4
and sections 415.1454 and 416.1467 of Regulations No. 16, vacates
the administrative law judge's order of dismissal and remands this
case for a hearing and decision.
Subsequent to the hearing, the administrative law judge shall
issue a decision with notice to the claimant and the representative of
the right to request review by the Appeals Council.
APPEALS COUNCIL
Edwin C. Satter, IIl, Member
David G. Danziger, Member
Date: March 13, 1979
20
APPENDIX F
DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE
SOCIAL SECURITY ADMINISTRATION
BUREAU OF HEARINGS AND APPEALS
Name and Address of Claimant:
Richard E. Williams
225 Stony Creek Road
Branford, CT 06405
NOTICE OF DECISION
Please Read Carefully
If you disagree, in whole or in part, with the enclosed decision
you may request the Appeals Council to review it. However, your
request for review must be filed within 60 days after the date of
receipt of this notice. It will be presumed that this notice is received
within 5 days after the date shown below, unless a reasonable
showing is made otherwise.
You (or your representative) may file a request for review at
your local social security office or at the hearing office, or you may
write or telephone one of these offices and indicate your intention to
file a request for review. You may send a written request for review
directly to the Appeals Council, Bureau of Hearings and Appeals,
SSA, P.O. Box 2518, Washington, D.C. 20013.
Unless you file a timely request for review by the Appeals
Council, you may not obtain a court review of your case under
section 205(g), 1631(c) (3), or 186%(b) of the Social Security Act.
21
This notice and enclosed copy of hearing decision mailed May
17, 1979.
ce:
Name and Address of Representative:
Mrs. Lynn Williams
225 Stony Creek Road
Branford, CT 06405
APPENDIX G
DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE
SOCIAL SECURITY ADMINISTRATION
BUREAU OF HEARINGS AND APPEALS
UPON REMAND BY THE APPEALS COUNCIL
Decision
In the case of
Richard E. Williams, (Claimant)
Claim for
Period of Disability, Disability Insurance Benefits and Supple-
mental Security Income
Social Security Number
047-28-0012
I. PRIOR PROCEEDING
This case is before the Presiding Adininistrative Law Judge
upon Remand issued March 13, !979 by the Appeals Council. This
remand vacated the prior Administrative Law Judge dismissal,
22
dated December 17, 1978, of this proceeding. The dismissal was
based on failure of the claimant to support his claim through his
unwillingness to express himself on the admissibility of exhibits.
In the initial stage of this proceeding, the claimant’s wife Lynn
C. Williams had been disqualified by the Presiding Judge as the
claimant’s representative.
The Appeals Council held upon remand that it was not the
intent of the claimant to withdraw his claim and that the disqualifica-
tion of the claimant’s wife, as his representative, could not stand
without specification of the reasons for the Presiding Judge’s action
in directing such disqualification.
Il. NATURE OF CLAIM
The claimant filed his application for disability benefits on July
28, 1977, based on the contention that he has been unable to work.
His work experience consists primarily of a period of employment
of seventeen and a half years with an automobile firm as a car
washer and polisher. He has also had shorter periods of employment
involving routine maintenance and oiling work.
The Hearing was held on May 7, 1979, at which time the
claimant appeared with his wife who acted as his representative.
The complainant is 42 years old and has a high school
education. He claims a number of physical impairments, including
shoulder problems, back pain and difficulty when standing for long
periods of time, due among other things, to complaints of pain in his
feet, particularly the heels of his feet. He also claims brain damage
resulting from an accident that occurred some 22 years ago. His file
includes reports and references to visits of a large number of doctors
and other medical personnel. He has visited up to thirty-four
doctors over a period of many years, and he cites various reports
from these doctors, along with reports from his dentist, optometrist,
podiatrist and chiropracter, in support of his claim that he is unable
to work. He has also visited hospital emergency services to seek
23
relief from his pains. He has submitted copies of prescriptions that
he has received for various drugs, consisting largely of pain relievers.
Ill. APPLICABLE STATUTES AND REGULATIONS
The laws and regulations to be considered in adjudicating this
matter include section 216(i), 422 USC 416(i(a) of the Social Security
Act, as amended, which provides for the establishment of a period
of disability, and section 223, 42 USC 423 of the Act, which
provides for the payment of disability insurance benefits where the
requirements are met. Section 223(d\1), 42 USC 423(d)(1) of the
Social Security Act, as amended, provides that an individual shall
be considered to be disabled if he is unable to engage in substantial
gainful activity as a result of 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 than twelve months.
Section 223(d2A), 42 USC 423(d\(2)A) of the Social Security
Act, as amended, provides that 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 the
previous work engaged in, but that considering his age, education
and work experience, he cannot 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 the claimant lives, or whether specific job vacancies exist for
the claimant, or whether the claimant would be hired if he applied
for work. Work which exists in the national economy means work
which exists in significant numbers either in the region where the
applicant lives or in several regions in the country.
Section 1614(a)(3A) of the Act provides essentially the same
definition for the term “disability” as that set forth supra.
Section 223 (d\3), 42 USC 423(d)\3) of the Social Security Act,
as amended, provides that a physical or mental impairment is an
impairment that results from anatomical, physiological or psych-
24
ological abnormalities which are demonstrable by medically accept-
able clinical and laboratory diagnostic techniques.
Section 223(d)(5), 42 USC 423(d)(5) of the Social Security Act
further states that an individual shall not be considered to be under
a disability unless he furnishes such medical and other evidence of
existance thereof as the Secretary may require. Regulation
404.1503(e) provides that where a finding of disability cannot be
made on the basis of the above medical considerations alone, the
physical and mental demands of the claimant’s past relevant work
shall be evaluated. If the impairments do not prevent the individual
from meeting the physical and mental demands of past relevant
work, disability shall not be found to exist.
iV. SUBPOENA REQUESTS
Prior to the hearing in this proceeding the applicant’s wife,
acting as his representative, had requested that 52 subpoenas be
issued. This included subpoenas for 34 medical personnel and 18
other individuals, including employees of the Bureau of Rehabilita-
tion of the Connecticut Department of Education and other Social
Security Administration personnel, who participated in administering
Mr. Williams’ claim for disability benefits. At the hearing the
applicant’s representative was requested to explain the need for
having these individuals present at the hearing. It is her position that
since she disagrees with the conclusions of Drs. Goodman, Zito, and
DiLorenzo concerning her husband’s conditions as set forth in the
reports of these doctors she requested subpoenas for the purpose of
having the opportunity of asking these doctors to explain their
evaluation of her husband’s condition. She stated that action on all
other subpoena requests could be deferred, but she did not want to
withdraw these requests pending adjudication of her husband’s
claim.
Her reason in seeking subponas for the non-medical personnel
that participated in handling her husband’s claim was not made
clear at the hearing, but it would appear that since she disagreed
with the conclusions of these individuals, and in some instances she
25
contended that at least one indiviudal showed some bias toward her
husband, she felt it would be desirable to have these individuals
available for examination.
No subpoenas were issued by the Presiding Judge prior to the
hearing pending explanation by the claimant and his representative
for the need for these subpoenas.
It is not contended that subpoenas are required for the purpose
of presenting new or additional evidence. Further, there is no
contention that the reports of the medical doctors are unclear or
ambivalent and that clarification is required and that such clarifica-
tion can be obtained only through cross-examination.
All that is contended is that claimant disagrees with those
medical evaluations which are at variance with his claim of
disability.
Section 404.926 of the Social Security Administration regulations
provides for the issue of subpoenas when “reasonably necessary for
the full presentation of a case.” This is a matter of discretion to be
exercised by the Presiding Judge, and it is not a matter of right upon
request of the claimant. Further, the party requesting a subpoena
has the obligation to state the pertinent facts which he expects to
establish by the subpoenaed witness and whether such facts can be
established by other evidence without the use of a subpoena.
The claimant has neither claimed nor demonstrated that facts
can be obtained by the requested subpoenas that cannot be obtained
by other evidence. As noted supra, it is not claimed that additional
facts can be adduced by the requested subpoenas.
It is concluded that the claimant has not met the requirements of
the foregoing regulation to support the requested subpoenas. This
request is denied.
Further subpoena requests relate to records of Dr. Nathan Levy
relating to a 1970 left shoulder treatment, and the Connecticut
Automotive Trades Association Trust concerning a 1975 treatment
for a left knee injury. It is not apparent as to whether such records
26
exist, and whether if such records exist, they would cast any
meaningful light on the claimant’s contention of existing disability.
The claimant’s medical history is of interest, but the essential
issue to be determined is whether he has an existing disability based
on a medically determinable disorder within the meaning of the
Social Security Act and applicable regulations. These additional
subpoena requests are denied.
V. OBJECTION TO EXHIBITS
The complainant, through his representative, objected to several
exhibits, particularly those exhibits that reflected adversely on her
husband’s claim for disability benefits. It was explained to the
complainant and his representative that the purpose of this pro-
ceeding is to make an independent evaluation of Mr. Williams’
claim for disability benefits. The prior Social Security determination
that claimant is not disabled is part of the record, and the purpose of
the hearing is to provide for a de novo evaluation of this claim.
Therefore, the objection to receipt into evidence of documents,
pertaining to prior actions in this proceeding, was not approved.
Other objections concerned the medical evaluations with which the
complainant did not agree. The request for exciuding these docu-
ments from the record was not approved; however, the objection
was noted and ‘he complainant and his representative were informed
that consideration would be given to the arguments made by the
complainant and his representative concerning the weight to be
given these medical statements.
VI. ADDITIONAL EVIDENCE AND BRIEF
The complainant was also afforded opportunity to file any
additional data and exhibits which would support the claim. The
complainant was further offered the opportunity to file a brief
consisting of a statement outlining his position in support of his
claim and such brief was submitted on May 11, 1979.
27
VII. EVIDENCE AT THE HEARING
Although the matter of various x-rays submitted prior to the
hearing was not discussed by claimant during the course of the
proceeding, on brief, the claimant requested that these documents
be made exhibits. This request is granted so that the claimant will
not be precluded from presenting all documents and evidence that
he believes will supper his position, but it is noted that no medical
interpretation of these documents has been offered into evidence.
While it is argued on brief that granting of the requested
subpoenas would have permitted interrogation on these x-rays, this
had not been advanced as a reason in support of the subpoena
requests, and it is not contended that any new evidence could be
added to the record in addition to the existing medical reports which
are based, in part on evaluation of these x-rays.
Upon detailed and searching analysis of the record of this
proceeding the claimant noted some mechanical errors such as
listing a medical report as two pages rather than one and missing
prescription labels.
Additional documents presented by the claimant at the hearing
were made part of the record.
On brief, the claimant lists in detail, additional records in
support of the subpoena request for Drs. Goodman, Zito and
DiLorenzo. Essentially, the purpose of these subpoena requests is
explained as an oportunity to confront and cross examine these
doctors because the claimant disagrees with the conclusion of these
doctors and questions the validity of their reports.
None of these reasons support granting of the subpoena requests
in light of the standards referenced supra in the Social Security
Administration regulations for the granting of subpoena requests.
At the hearing, the claimant responded to questions asked by
the Presiding Judge with a reasonable Gegree of intelligence. It was
noted that the claimant brought a friend who operated a tape
recorder so that the claimant could have his own tape recording and
28
the claimant assisted his friend in operating the controls of the tape
recorder and by showing how the tape recorder should be handled.
However, after the tape was to be changed a second time, the
applicant refrained from offering physical assistance and restricted
his assistance to verbal instructions.
The claimant stated that he is somwhat overweight. His present
activities are described as limited, consisting largely of watching
television. He states that he is unable to bend sufficiently to put on
his socks and requires assistance from his wife in dressing himself.
He states further that he participates in no ..ousehold duties
whatsoever and is almost constantly in pain. The pain appears to
exist in virtually aii parts of his body, resulting in restriction of his
activities. He formerly was reasonably active in work around the
house. He mentioned that 10 years ago he had painted his house
and had used ladders or possibly staging for that purpose.
Vill. RECORD EVIDENCE
The various medical evaluations included in this record concur
that claimant may have some degree of physical disability, particu-
larly in his left shoulder. It is noted that he has visited a large
number of medical doctors and numerous evaluations were made at
different times of his various complaints.
He has seen Dr. DePonte on many occasions. At a July 10, 1978
examination Dr. DePonte took note of the presence of cervical ribs
which could be corrected by an operation. Complaints of pain in
Mr. Williams’ left and right heels were attributed by Dr. DePonte to
a spur in the left heel, which was disclosed by x-rays at an October
16, 1978 examination. Dr. DePonte suggested that Mr. Williams
should wear shoes with higher heels and arch support inserts and
should experiment with a heel cup and shoe lifts. Dr. DePonte
noticed no appreciable limp in Mr. Williams’ gait.
In an examination of July 19, 1978, Dr. Shutkin noted that Mr.
Williams had complained of various pains over a period of a year
consisting largely of the left shoulder, low back pain and pain in his
feet. Dr. Shutkin noted that Mr. Williams moves freely and easily
29
and no active pathology was evidenced. He determined that a 10
percent disability in the left shoulder would appear to be present. He
found that no symptoms were disclosed by tests to support the
presence of bilateral cervical ribs.
In an examination of April 10, 1978 Dr. Poverman found a 15
percent disability in Mr. Williams’ left arm.
At the hearing a good deal of stress was placed by Mrs. Williams
on a statement dated January 11, 1979 by Dr. DePonte in the form
of a letter to Joseph Chiarelli, Esq., 1324 Dixwell Avenue, Hamden,
Connecticut. This letter (Exhibits AC-4) states as follows:
“It is my opinion that Mr. Williams, as a result of his miltiple
systems disorders, including his chronic tendenitis, his bilateral
cervical ribs, his chronic plantar fasciitis and thoracic outlet
syndrome, is essentially completely disabled from performing
any type of useful occupation requiring the use of the upper
extremities. The chronic fasciitis would make any occupation
requiring that he stand or walk any distances virtually impossible.
“It is my impression that this disability was present in February
1977 and continued through the present.”
It is noted that this January 1979 statement differs in some
measure from Dr. DePonte’s earlier evaluations of July 10, 1978
and October 16, 1978.
The complainant stated at the hearing in response to inter-
rogation, that he had not seen a doctor since December of 1978
because there has been no change in his condition. He called Dr.
DePonte from time to time to arrange for renewal of his prescrip-
tions for drugs that he understands are required to relieve his pain.
Reports of other physicians, including Dr. Alvin Greenberg, Dr.
Zito and Dr. Goodman concur in the conclusion that there is no
motor deficit or sensory deficit in either of Mr. Williams’ legs. There
is some poor fine dexterity of the right hand which is related to a
head injury sustained some twenty years ago.
30
Further reports, including a report by Dr. Zito, state that a
neurological examination was essentially unremarkable ard con-
cludes that the complainant’s complaint of chronic low back pain
may be due to congenital malformation but there is no clear
neurological deficit related to his complaints of pain. The ac-
companying residual functional capacity report submitted by Dr.
Zito states that the complainant is capable of doing light work and
sedentary work and can perform those functions which are necessary
to carry out such work except that he is unable to stoop, kneel,
crouch or crawl. He can do some reaching, handling, fingering and
feeling.
It is noted that the complainant, through his representative,
takes exception to this report and that he would have this report
excluded from the record. A further report by Dr. Allen Goodman
states that examination of the claimant’s lower extremities was
unremarkable with respect to muscle strengths, sensation and reflex
activity. While x-rays showed some degeneration of the spinal disc,
there was no indication that the condition of the spine or the right
shoulder disabled the claimant and made it impossible for him to
carry out a large number of gainful occupations.
At the hearing the complainant wore a foam rubber cervical
collar around his neck. He stated this assisted him in relieving his
pain. As noted supra, he had not seen a doctor concerning this
matter since December 1978.
Evaluation has been made of the medical evidence of this record
to determine insofar as possible the precise degree of functional loss
or restriction that results from the claimant’s physical impairments.
It is the extent of the limitation of the complainant’s ability to
engage in physical activity such as sitting, walking, reaching,
manipulating and to perform other functions that determine the
true severity of his impairment. It is through an assessment of these
capacities and capabilities that a meaningful decision can be made
with respect to his ability to engage in substantial gainful activity.
To support a determination of disability as defined by the Social
Security Act an allegation of functional limitations must be medically
31
determinable as the result of organic dysfunction, or other demon-
strable causes. Section 1614(a)(3)(c), 46 USC 1382(chaX3\Xc) of the
Social Security Act, and section 416. 901(c), 20 CFR 416.901(c) of
the Social Security Administration Regulations state that a physical
or mental impairment is an impairment that results from anatomical,
physiological or psychological abnormalities which are demonstrable
by medically accepted clinical and laboratory diagnostic techniques.
Statements of the claimant including claimant’s own description
of impairments are alone insufficient to establish the presence of a
physical or mental impairment. The validity of the claimant’s
allegation of inability to work for any period of time and his
subjective complaints can be accepted only insofar as the complaints
are supported by clinical and laboratory diagnostic techniques. The
evidence must not only show a continuous impairment preventing
performance of the claimant’s usual occupation, but must also show
the lack of residual capacity to perform other occupations within a
vocational potential. Thus, the residual capacity the claimant has for
work activity is the controlling feature. Therefore, the Presiding
Judge must objectively examine the clinical, laboratory and other
evidence to determine if impairments exist and to what extent these
impairments may interfere with the claimant's normal physical and
mental functioning.
The record in this proceeding is voluminous and is noted that it
includes a large number of medical reports, evaluations and other
document pertaining to the claimant’s medical history.
IX. EVALUATION OF EVIDENCE
Review of the entire record of this proceeding supports the
conclusion that although the complainant may have sustained some
impairment of his ability to use his hands and his arms, he is not
completely disabled within the meaning of statute and the Social
Security Regulations. In reviewing the evidence of this proceedirg in
a light most favorable to the applicant’s claim of disability, careful
consideration has been given to the january 11, 1979 statement of
Dr. DePonte, in which emphasis was given to the difficulty
encountered by Mr. Williams in using his upper extremities.
’
32
A Vocational Expert, Dr. James M. Brine, was present at the
hearing at the request of the Presiding Judge. Following the
presentation of testimony on behalf of Mr. Williams, the vocational
expert was asked a number of hypothetical questions to determine
whether jobs existed in the national economy which an individual
with impairments similar to those claimed by the complainant could
perform. While, on the one hand, the vocational expert determined
that if Mr. Williams had all the problems he complained of, there
was no job he could perform; on the other hand, the vocational
expert stated that the January 11, 1979 report of Dr. DePonte did
not disqualify the complainant from fulfilling such jobs as a
gatetender, parking lot attendant, or similar semi-sedentary types of
work which did not require a great deal of standing, involved simple
record keeping and that an individual that has limited use of his
hands and arms was qualified to perform jobs of this nature.
X. FINDINGS
The complainant filed an application for disability insurance
benefits on July 28, 1978. He has met the special earnings require-
ments of the Social Security Act as amended as of the date of his
alleged disability and he continues to meet them as of the date of the
hearing and the date of this decision. The evidence fails to support
the claimant’s contention that his impairments prevent him from
engaging in any substantial gainful activity for any continuous
period beginning on or before the date of his application, and which
has lasted or could be expected to last for at least 12 months.
Consideration has been given to the claimant's claims alleging
injuries and impairments in various parts of his body, including
brain damage and many physical ailments.
Interrogation of the witness at the hearing did not disclose
evidence of any mental imnpairment. The claimant responded
intelligently and hucidly to all questions.
On brief, a list of seven impairments is presented. While as noted
supra, some impairment can be deemed to exist in the applicant's
33
left shoulder and arm, the evidence of this proceeding does not
support the condiusion Vref “tne ‘vaTeus Ueimes Vi impnMRA
advanced by the claimant are medically determinable as constituting
disability of the claimant to engage in any gainful activity. Claimant
appears to be robust with unrestricted use of his faculties and being
fully aware of all circumstances of the hearing.
The claimant relies on Dr. DePonte’s statement of January 11,
1979, in support of his claim of total disability. As noted, this
statement differs from the prior medical reports of the claimant's
condition prepared by Dr. DePonte. These earlier reports were
written at the time that Dr. DePonte examined the claimant. The
January 1979 statement was submitted in the form of a letter to an
attorney. The relationship of the attorney to this case was not
explained; no explanation was offered as to why this letter was
written to this attorney; and further, no explanation was offered to
justify the apparent inconsistency between the January 1979 state-
ment and the earlier medical reports of Dr. DePonte, in which only
limited impairment of the claimant's physical capabilities was found
to exist.
The fact is that notwithstanding Mr. Williams's numerous and
varied claims of pain and physical discomfort, and his recitation of
injuries and ailments that extend over a period of some 22 years, the
record evidence does not support his claim that he is unable to
engage in substantial gainful activity. Medically determinable physi-
cal or mental ailments which result in total disability and which can
be expected to result in death or which lasted or can be expected to
last for 12 consecutive months, are not found.
The January |1, 1979 Dr. DePonte statement does not support
the claimant's contention of total disability. The expert vocational
testimony discloses that gainful employment exists for individuals
with limited use of their arms and hands.
It is concluded that the additional evidence submitted following
the Appeals Council Remand, even when viewed in a light most
favorable to claimant, does not support his claim of totai disability
under the Social Security Act.
34
The claimant has not been prevented from engaging in any
substantial activity and upon consideration of his physical and
mental ability, his age, education and work history, he is able to do
jobs as indicated by the vocational expert in answer to hypothetical
questions presented, and such jobs are available as testified by the
vocational expert in regions where the claimant lives and several
other regions of the country. It is concluded further, that the
complainant was not under a disability as defined in sections 216(i),
223(d), 1614, (42 USC 416(i) 423 and 1614) of the Social Security
Act, as amended, on the date of filing of his applications for
disability insurance benefits and Supplemental! Security Income and
continuing through the date of this decision.
XI. DECISION
It is the decision of the Administrative Law Judge that the
claimant’s request for Disability Insurance Benefits and Supplemen-
tal Security Income has not been demonstrated by persuasive
evidence and that he is not entitled to a period of Disability
Insurance Benefits, or Supplemental Security Income benefits under
the Social Security Act, as amended. This claim should be and
herewith is denied.
vee eee eee eeneeeeeneereeeeeeeneeeeweeenee
Samuel Kanell
Presiding Administrative Law Judge
Date: May 17, 1979
35
APPENDIX H
DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE
SOCIAL SECURITY ADMINISTRATION
P.O. BOX 2518
WASHINGTON, D.C. 20013
OFFICE OF HEARINGS AND APPEALS
SG-2
REFER TO:
047-28-0012
September !3, 1979
Action of Appeals Council on Request for Review
In the case of
Richard E. Williams
225 Stony Creek Road
Branford, CT 06405
Dear Mr. Williams:
Re: Your Claims for Disability Insurance Benefits and Supplemental
Security Income
After the request for review of the hearing decision was received,
a careful study was made of your case, the applicable law and
regulations, the record before the administrative law judge, the
additional evidence submitted, and the contentions made in support
of the request.
Sections 404.947a and 416.1465 of Social Security Administra-
tion Regulations Nos. 4 and 16 (20 CFR 404.947a and 416.1465)
provide that the Appeals Council will review a hearing decision
where: (1) there appears to be an abuse of discretion by the
36
administrative law judge; (2) there is an error of law; (3) the
administrative law judge’s action, findings, or conclusions are not
supported by substantial evidence, or (4) there is a broad policy or
precedural issue which may affect the general public interest. These
sections also provide that where new and material evidence is
submitted with the request for review, the entire record will be
evaluated and review will be granted where the Appeals Council
finds that the administrative law judge’s action, findings, or con-
clusion is contrary to the weight of the evidence currently of record.
The Appeals Council has concluded that there is no basis under
the above regulations for granting the request for review. Accord-
ingly, the hearing decision stands as the final decision of the
Secretary in your case.
In reaching this conclusion, the Appeals Council considered the
contentions made by your representative in the brief filed on your
behalf and the additional evidence submitted in connection with
your request for review. Much of the new evidence consists of copies
of prescriptions, bills, receipts, and information from physicians
which essentially repeats information already of record. In June
1979 you saw a chiropractor for back pain, and he reports that
X-rays reveal no substantial change over X-rays taken in May 1976.
A physician saw you in July 1979 regarding the scar on your left
arm. The additional evidence provides no clinical or laboratory
findings which would warrant any further administrative action.
The Council finds that the weight of the evidence supports the
administrative law judge’s decision.
If you desire a court review of the hearing decision, you may
commence a civil action in the district court of the United States in
the judicial district in which you reside within sixty (60) days from
the date of receipt of this letter. It will be presumed that this letter is
received within five (5) days after the date shown above unless or
reasonable showing is otherwise made. See sections 205(g) and
1631(c)(3) of the Social Security Act, as amended [42 U.S.C. 405(g)
and 1383(c\3)) and section 422.210 of Social Security Administration
Regulations No. 22 (20 CFR 422.210).
37
If a civil action is commenced, the Bill of Complaint should
name the Secretary of Health, Education, and Welfare as the
defendant and should include the social security number(s) shown at
the top of this notice.
Sincerely yours,
Edwin C. Satter III
Member, Appeals Council
cc:
Mrs. Lynn Williams
Branford, CT 06405
APPENDIX I
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CIVIL NO. N-79-338
RICHARD E. WILLIAMS, Plaintiff
VS.
PATRICIA R. HARRIS,
Secretary of Health, Education and Welfare, Defendant
RULING ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT
In this proceeding for judicial review of the defendant Secretary's
denial of disability-linked benefits claimed by plaintiff under the
Social Security Act, the Court’s limited function is not to retry the
merits de novo, see, e.g., Bastien v. Califano, 572 F.2d 908, 912 (2
Cir. 1978), but instead to determine whether the Secretary’s findings
38
are supported in the record of administrative proceedings by
“substantial evidence”, 42 U.S.C. § 405(g) — ie., “such relevant
evidence as a reasonable mind might accept as adequate to support
a conculsion”, Richardson v. Perales, 402 U.S. 389, 401 (1971),
quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938). Remand for administrative reconsideration, however, is also
authorized by the review statute for “good cause”, § 405(g), and that
course seems warranted here to assure both fully informed and
unambiguous administrative decision.
The benefit claim before the Secretary turned on the existence of
“disability”, meaning for present purposes an
“inability 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
12 months”.
42 U.S.C. § 423 (d) (1) (A). As that definition is clarified by § 423(d)
(2) (A), moreover, plaintiff would be found disabled
“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 kind of substantial gainful work
which exists in the national economy”.
Plaintiff is a middle-aged man, high school graduate long employed
washing and polishing cars for a dealer, who now asserts inability to
do any useful work due to a host of professed ailments and
associated pain. There is little or not doubt that he has physical
impairments — e.g., seeming shoulder tendinitis — but the question
is whether he suffers from any condition or conditions of disabling
severity.
As already stressed, the Secretary is the trier of fact, with her
findings conclusive if supported by substantial evidence, see 42
U.S.C. § 405(g). She must accordingly exercise the trier’s necessary
39
authority in resolving uncertainties or conflicts and in assessing
persuasive weight of proofs; this Court is not free simply to
substitute its judgment for hers in such matters. On the other hand,
the administrative trier must of course apply correct legal standards
in evaluating the facts, see, e.g., Marcus v. Califano, 615 F.2d 23 (2
Cir. 1979), and the manner in which decision was reached in this
instance prompts serious question in certain respects.
Foremost perhaps is the treatment of allegations of pain.
Despite an array of claimed problems, attendant medical records,
and reports of varying utility from numerous physicians, the central
and potentially dispositive complaint is of pain. As noted by the
Secretary’s vocational expert witness at the administrative hearing,
to believe plaintiff's testimony fully would seem to rule out work.
Interestingly enough, plaintiffs complaints (e.g., “chronic low back
pain”) appear to have been credited — in uncertain degree — by a
physcian to whom he was referred by the Secretary for neurological
examination, Dr. Zito. An orthopedic surgeon, however, Dr.
Goodman, found on his referral exam insufficient objective indica-
tions of severe impairment. Neither of these reports is mentioned
now as necessarily illustrative of the weight of the evidence, but their
very existence underscores significant ambiguity in the Secretary’s
present generally couched findings. On prior occasions, the Secretary
has mistakenly relied on a fundamentally erroneous legal premise
that “subjective” claims of disabling pain must be denied unless
there is manifestly “objective” clinical foundation, see, e.g., Marcus
v. Califano, supra; the current absence of explicit credibility analysis
in the light of plaintiff's hearing testimony and of the medical proofs’
relative weights does impel remand for clarification, cf. Seaborne v.
Secretary of H.E.W., Civil No. N-78-370 (D. Conn. 1980).
In addition, it is not now at least self-evident that the Secretary’s
written decision does reflect the limited threshold concession in-
timated by government counsel’s brief in the latter’s assertion that
“[w]hile plaintiffs shoulder obviously precludes him from
returning to his former work as a car washer, it seems
sufficiently clear from the physicians’ functional assessments
that he is capable of performing the work of a less strenuous
nature”.
40
The immediate difficulty once more is vague discussion in lieu of
precise finding, rendering the review process overly :_-ulative, cf.
Small v. Califano, 565 F2d 797, 800-801 (1 Cir. 1977).
Assuming that the Secretary’s sense of the evidence was indeed
that the customary prior line of work was foreclosed, an important
conclusion in turn compelling affirmative government evidence “to
show that there is other work that the claimant is able to perforrn”,
id. at 800, her vocational witness did think a light task such as that
of “a parking lot attendant” was possible on the favorable hypothesis
voiced by hearing judge that plaintiff “could stay at a job for 7 to 8
hours per day”. The source of that “hypothetical” element is not
pin-pointed, although Dr. Zito’s report included his return of a
“residential functional capacity” questionnaire, a form which states
in parenthesis that it is “based on 8 hour work day”, and he did
check off “sedentary” and “light work” strength categories. As
previously remarked, however, Dr. Zito also mentioned plaintiff's
pain, and indeed observed that the matter of “chronic low back pain
needs further workup”; it is not patent that Dr. Zito would
underwrite the hypothetical employed, or even regard his own views
settled. It bears comment that the hypothetical did also assume that
pain “may come and go”, surely not conceded, and that the
vocational witness himself later suggested that he did not have
enough information to take the back problem into account.
Such uncertainties impel more general comment. Despite the
potential force of medical evidence as proof, cf. Alvarado v.
Califano, 605 F.2d 34 (2 Cir. 1979), the now-existing record is
unexpectedly obscure and undeveloped in view of its sheer bulk.
While plaintiff was tenaciously assisted at the administrative stage
by his wife, an articulate lay representative, it is not surprising that
the evidence lacks cogent focus when it is considered that the couple
lacked an attorney’s guidance in presenting testimony and eliciting
pertinent opinion in persuasive context. Although the claimant does
logically retain “the ultimate burden of persuasion”, Franklin v.
Secretary of H.E.W., 393 F.2d 640, 642 (2 Cir. 1968), the Secretary
in such circumstances is charged with a settled “affirmative obligation
to assist. . .in developing. . .[the claimant’s] case”, Eiden v. Secretary
of H.E.W., F.2d , slip op. 1519, 1523 (2 Cir. Feb. 29, 1980).
4s
It is difficult to conclude that this duty was met here — not because
of official refusal to employ seldom-used hearing subpoena power
as desired by plaintiff to bring in a host of witnesses, but because
clarifications and focused medical opinion could have been readily
enough elicited by report. If surely understandable, for example, the
Secretary’s evident practical skepticism concerning a rather con-
clusory supporting statement by a former treating physician, Dr.
DePonte, could have been confirmed or dispelled by follow-up
inquiry, and an attorney presumably would have sought to present
such appropriate context or explanation. The conceivable impact of
persuasively articulated medical opinion is obvious.
All this is by no means to suggest that plaintiff must eventually
prevail; the merits, again, are for the administrative trier to evaluate.
This record does require clarification, however, and in the overall
circumstances not merely through requesting elaborated findings.
Now ably represented by counsel in this technical realm of suit,
plaintiff should be given rehearing opportunity to supplement and
clarify the record through such additional testimony and further
exhibits deemed reasonably necessary by counsel, lest the diffuse
character of earlier proceedings impede final assessment of the
claim.
The pending cross-motions for summary judgment are accord-
ingly denied without prejudice on the existing record. Plaintiff's
alternative request for remand is granted, and the instant matter is
hereby ordered remanded to the Secretary for prompt scheduling of
rehearing opportunity.
Dated at New Haven Connecticut, this 28th day of May 1980.
ARTHUR H. LATIMER
UNITED STATES MAGISTRATE
42
APPENDIX J
June 13, 1980 — The ruling on the parties cross-motions for
summary judgment is SO ORDERED, substantially for the reasons
set forth in Magistrate Latimer’s well-reasoned opinion. It should
also be noted that neither party has submitted an objection to the
Magistrate’s ruling pursuant to Local Rule 2 for U.S. Magistrates,
as amended, March 11, 1980.
T.F. Gilroy Daly, U.S.D.J.
APPENDIX K
DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE
SOCIAL SECURITY ADMINISTRATION
BUREAU OF HEARINGS AND APPEALS
ORDER OF APPEALS COUNCIL
Remanding Court Case To Administrative Law Judge
In the case of
Richard E. Williams
Claim for
Period of Disability, Disability Insurance Benefits and Supple-
mental Security Income
Social Security Number
047-28-0012
The United States District Court has remanded this case to the
Secretary of Health and Human Services for further administrative
action. Therefore, the Appeals Council vacates its denial of the
claimant’s request for review and the decision of the administrative
law judge and remands this case to and administrative law judge for
further proceedings consistent with the Order of the Court. In
addition, the administrative law judge shall take such further action
43
that may be necessary to complete the administrative record. Upon
completion of all proceedings, the administrative law judge shall
return the case with a recommended decision to the Appeals
Council for its decision.
The claimant and attorney shall be given the opportunity to file
with the Appeals Council, within 20 days from the date of notice of
the recommended decision, briefs or other written statements of
exceptions and comments as to applicable facts and law. After the
20-day period has expired, the Appeais Council will review the
record and issue its decision.
APPEALS COUNCIL
Harriet A. Simon, Member
Roland L. Vaughan, Jr., Member
DATE: August 4, 1980
a4
APPENDIX L
DEPARTMENT OF
HEALTH, AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
Richard E. Williams
225 Stony Creek Road
Branford, CT 06405
NOTICE OF RECOMMENDED DECISION
Of Administrative Law Judge On Court Remand
PLEASE TAKE NOTICE that, pursuant to the Appeals
Council’s order of remand, dated August 4, 1980, there is enclosed
herewith the administrative law judge’s findings of fact, conclusions
of law, and recommended decision.
You are hereby notified of your right to file briefs or other
written statements of exceptions and comments as to applicable
facts and law. Any such briefs or written statements should be sent
within 20 days from the date shown below to the Appeals Council,
Attention: Division of Civil Actions, Office of Hearings and
Appeals, SSA, P.O. Box 2931, Washington, D.C. 20013. Any
request for an extension of time will be granted, at the discretion of
the Appeals Council, upon a showing of good cause.
After the time granted for filing briefs and written statements
has expired, the Appeals Council will review the record and issue its
decision.
This notice and enclosed copy of findings of fact, conclusions of
law, and recommended decision, mailed July 24, 1981
CC: Robert M. Carale, Esquire
250 West Main Street
Branford, CT 06405
45
APPENDIX M
DEPARTMENT OF
HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
RECOMMENDED DECISION
In the case of
Richard E. Williams, (Claimant)
Claim for
Period of Disability And Disability Insurance Benefits
Social Security Number
047-28-0012
PROCEDURAL BACKGROUND AND HISTORY
This case has a lengthy procedural history. On July 28, 1977, the
claimant Richard E. Williams filed an application for disability
insurance benefits (Exhibit 1), in which he alleged disability since
February 28, 1977. This application was denied upon initial and
reconsidered determinations. The claimant thereupon requested a
hearing before an Administrative Law Judge. On November 7,
1978, such hearing commenced before an Administrative Law
Judge who disqualified the claimant's wife Lynn C. Williams from
acting as the claimant’s representative and dismissed the claimant's
request for a hearing. Acting upon the claimant's request for review,
the Appeals Council, in an order of March 13, 1979, vacated the
Administrative Law Judge’s Dismissal and remanded the case for a
hearing and decision. Such hearing was held before another
Administrative Law Judge on May 7, 1979. Pursuant to his decision
dated May 17, 1979, the Appeals Council denied the claimant's
request for review of this decision, and the claimant thereupon
sought judicial review. Pursuant to its order dated June 13, 1980, the
United States District Court for the District of Connecticut remand-
ed the case to the Secretary for a rehearing. The Magistrate’s ruling
stressed that:
46
1. remand for clarification was impelled by an absence of explicit
credibility analysis with respect to the claimant's testimony,
including his allegations of pain;
2. more precise findings concerning the claimant's ability to
perform his customary or alternative work were necessary;
3. clarification of vocational testimony was needed;
4. the record was unexpectedly obscure and undeveloped in view
of its sheer bulk;
5. now ably represented by counsel, the plaintiff (claimant) should
be given rehearing opportunity to supplement and clarify the
record.
On August 4, 1980, the Appeals Council remanded the case to
an Administrative Law Judge for further proceedings consistent
with the Order of the Court, including the issuance of a recom-
mended decision. A pre-hearing interview was held on September
11, 1980. After a consultative examination was held and a revised
workable List of Exhibits was agreed upon, with claimant's counsel,
the hearing was held before the undersigned in New Haven,
Connecticut, on January 6, 1981. The claimant appeared represented
by his attorney of record Robert Casale. The claimant's wife Lynn
Williams testified on his behalf. Testifying as a vocational expert
was Dr. James K. Phillips, a licensed psychologist.
The claimant alleges disability due to multiple medical impair-
ments which are discussed at length below. He is now 45 years old,
and is a high school graduate. His only vocationally relevant past
work experience was at an unskilled position of car washer and
polisher.
ISSUES
The general issues before the Administrative Law Judge are
whether the claimant is entitled to a period of disability and to
disability insurance benefits under Sections 216{i) and 223, respec-
tively, of the Social Security Act, as amended. The specific issues are
47
whether the claimant was under a “disability,” as defined in the Act,
and, if so, when such “disability” commenced and the duration
thereof, and whether the special earnings requirements of the Act
are met for the purpose of entitlement.
LAW AND REGULATIONS
Section 216(i) of the Social Security Act [42 USCA §416 (i)]
provides for the establishment of a period of disability, and Section
223 of the Act [42 USCA §423] provides for the payment of
disability insurance benefits where the requirements specified therein
are met.
Section 223(d) (1) of the Social Security Act [42 USCA §423 (d)
(1)] defines disability as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physica! 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 12 months.”
Section 223(d) (2) (A) [42 USCA §423 (d) (2) (A)] further
provides that 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 pervious
work but cannot, considering his age, education, and work experi-
ence, engage in any kind of substantial gainful work which exists in
the national economy.”
Section 223(d) (3) [42 USCA §423 (d) (3)] defines a “physical or
mental impairment” as an impairment that results from “anatomical,
physiological, or psychological abnormalities which are demonstrable
ty medically acceptable clinical and laboratory diagnostic tech-
niques.”
Section 404. 1520(d) of the Social Security Regulations No. 4[20
CFR §404.1520(d)] provides that if you have an impairment which
meets the duration requirement and is listed in the Listing of
Impairments in Appendix | to Subpart P of the Regulations No. 4,
or we determine that your impairment is equal in severity and
48
duration to one of the listed impairments, we will find you disabled
without considering your age, education, and work experience.
Section 404.1520(f) of the Regulations No 4 [20 CFR
§404.1520(f)] provides that if you cannot do any work which you
have done in the past because you have a severe impairment, then
we will consider your residual functional capacity and your age,
education, and past work experience to determine if you can do any
other work. If you cannot do other work, then we will find you
disabled.
Section 404.1561 of the Regulations No 4 [20 CFR §404.1561]
further provides that any other work that you can do, given your
residual fuctional capacity and your age, education, and past work
experience, must exist in significant numbers in the national
economy (which includes the region where you live or several other
regions of the country). Section 404.1566 of the Regulations No. 4
[20 CFR §404.1566] provides that when we consider that work
exists in significant numbers in the national economy, it does not
matter whether; (1) work exists in the immediate area in which you
live, (2) a specific job vacancy exists for you, or (3) you would be
hired if you applied for work.
Section 404. 1545(a) of the Social Security Reguiations No 4 [20
CFR 1404.1545(a)] provides that your residual functional capacity
is what you can still do despite the physical and metal limitations
caused by your impairment or combination thereof. Residual
functional capacity is a medical judgment; however, it may include
descriptions (even your own) of limitations which go beyond the
symptoms that are important in the diagnosis and treatment of your
medical condition. Observations of your work limitations in addition
to those usually made during formal medical examinations may also
be used.
With regard to physical abilities, Section 404.1545(b) of the
Regulations No. 4 [20 CFR §404.1545(b)] states that, “When we
assess your physical abilities (e.g., strength) we assess the severity of
your impairment(s) and determine your residual functional capacity
for work activity on a regular and continuing basis. We consider
49
your ability to carry out physical activities such as walking,
standing, lifting, carrying, pushing, pulling, reaching, handling and
the evaluation of other physical functions.”
With regard to mental impairments, Section 404.1545(c) of the
Regulations No. 4 [20 CFR §404.1545(c)] states that, “When we
assess your mental disorder, we consider factors such as your ability
to understand, to carry out and remember instructions,and to
respond appropriately to supervision, co-workers, and work pres-
sures in a work setting.”
Section 404.1545(d) of the Regulations No. 4 [20 CFR
§404.1545(d)] provides that, “Some medically determinable impair-
ments, such as skin impairments, epilepsy, and impairments of
vision, hearing or other senses, postural and manipulative limita-
tions, and environmental restrictions do not limit physical exertion.
If you have this type of impairment, in addition to one that affects
physical exertion, we consider both in deciding your residual
functional capacity.”
Section 404.1567 cf the Regulations No. 4 [20 CFR §404.1567]
states that to determine that physical exertion requirements of work
in the national economy, we classify jobs as “sedentary,” “light,”
“medium,” “heavy,” and “very heavy”. These terms are specifically
defined in Section 404.1567.
Section 404.1568 of the Regulations No. 4 [20 CFR §404.1568]
provides that in order to evaluate your skills and to help determine
whether there is any work in the national economy which you may
be able to do, occupations are classified as “unskilled,” “semi-
skilled,” and “skilled”. These terms are specifically defined in Section
404.1568.
Section 404.1568(d) of the Regulations No. 4 [20 CFR
§404.1568(d)] states that we consider that you have skills that can be
used in other jobs when the skilled or semi-skilled work activities
which you did in your past work can be used to meet the
requirements of skilled or semi-skilled work activities of other jobs.
It is further stated that transferability of job skills depends largely on
the similarity of occupationally significant work activities between
different jobs and that transferability of skills is most probable and
meaningful among jobs in which (1) the same or a lesser degree of
skill is required, (2) the same or similar tools and machines are used,
and (3) the same or similar raw materials, products, processes, or
services are involved. A complete similarity of all three factors is not
necessary for transferability to exist; however, when skills are so
specialized or have been acquired in such an isolated vocational
setting that they are not readily usable in other industries, jobs and
work settings, we consider that such skills are not transferable.
Section 404.1569 of the Regulations No. 4 [20 CFR §404.1569]
discusses Appendix 2 to Subpart P which sets forth rules which use
data concerning job classification by exertional and skill requirements
from the Dictionary of Occupational Tities and which reflect major
functional and vocational patterns. We apply these rules in cases
where a person is not doing substantial gainful work and is
prevented by a severe medically determinable exertional impairment
from doing vocationally relevent past work. If the findings of fact
made about all factors coincide with a rule, we will use that rule to
decide whether a person is disabled.
Furthermore, Section 404.1569 states that ihe rules in Appendix
2 do not cover all possible variations of factors. The rules are not
applied if one of the findings of fact about the person’s vocational
factors (e.e., age, education, vocationally relevant past work experi-
ence, and transferability of skills) and residual functional capacity is
not the same as the corresponding criterion of a rule. In such an
event, full consideration is given to all the relevant facts in
accordance with the definitions and discussions under vocational
considerations (see Sections 404.1560 through 404.1568 of the
Regulations No.4).
Section 200.00(e) of Appendix 2 to Subpart P of the Regulations
No. 4 provides that since the Appendix 2 rules are predicated on an
individual’s having an impairment which manifests itself by limita-
tions in meeting the strength requirements of jobs, they may not be
fully applicable where the nature of an individual's impairment does
not result in such limitations, e.g., certain mental, sensory, or skin
51
impairments. In addition, some impairments may result solely in
postural and manipulative limitations or environmental restrictions.
Section 200.00(e) (2) of Appendix to Subpart P of the Regula-
tions No. 4 provides that where an individual has an impairment or
combination of impairments resulting in both strength limitations
and non-exertional limitations, the rules in this subpart are con-
sidered in determining first whether a finding of disabled may be
possible based on the strength limitations alone and, if not, the
rule(s) reflecting the individual’s maximum residual strength capabil-
ities, age, education,and work experience provide a framework for
consideration of how much the individual's work capability is
further diminished in terms of any types of jobs that would be
contraindicated by the non-exertional limitations. In such situations,
full consideration must also be given to all relevant factors as set
forth in sections 404.1560 through 404.1568 of the Regulations No.
4.
SUMMARY OF THE MEDICAL EVIDENCE
On January 29, 1957, the claimant was admitted to the Grace
New Haven Community Hospital after apparently being involved in
an automobile accident. He had amnesia from the accident and was
reported to be sleepy but was pretty well oriented. The diagnostic
impression was of a cerebral contusion accompanied by lacerations
of the right forehead. The claimant’s condition showed gradual
improvement and no severe symptoms were exhibited. He was
discharged on February 1, 1957 (Exhibit 14).
The claimant was followed by Dr. Nathan Levy of Branford. On
February 11, 1957, Dr. Levy noted that the claimant had been
referred to a Dr. Davey who feit that he had a contusion of the brain
on the left side or a possible subdural hematoma.
A report of Dr. Davey’s neurological consultative examination
is set forth as Exhibit 16. Dr. Davey noted that he saw the claimant
on February I 1, 1957, for an evaluation of right hemiparesis. It was
his impression that the claimant had sustained a cerebral contusion
affecting primarily the arm and speech areas. In view of what was
termed the patient’s progressive improvement, Dr. Levy recom-
mended continued conservative management. However, he did state
52
that the claimant’s condition should be closely monitored to make
sure that no signs of subdural hematoma developed. If the claimant's
condition were one of improvement, Dr. Davey stated that nothing
further needed to be done except mild physiotherapy at home
(Exhibit 16). In a report of March 14, 1957, Dr. Levy expressed his
helief that the claimant was making good progress but that it could
be some time before he was able to return to work. In a further
report of April 15, 1957, Dr. Davey noted the claimant’s continued
improvement. He revised his diagnostic opinion somewhat to state
that the claimant has sustained bilateral damage in the cerebral
hemispheres and that the dysarthria which he still showed was of the
sudobulbar type.
In a report of December 5, 1957, Dr. Levy noted that as of the
date of the claimant's last visit of November 19, 1957, he still limped
and still had a speech defect. It was Dr. Levy's impression that the
claimant would always have some speech defect as well as a limp in
his walking (Exhibit 17).
In an updated report (Exhibit 18), Dr. Levy noted that he had
been treating the claimant since his automobile accident of January
29, 1957, and that as a result of this accident, the claimant had
incurred permanent disability to his speech and to the right side of
his body.
On April 24, 1961, Dr. Allen Minor provided a medical
interpretation of an X-ray examination of the claimant’s lumbosacral
spine. Dr. Minor’s impression of the X-ray was that it was of a
negative study except for rudimentary twelfth ribs in bilateral
sacralization of L-5 (Exhibit 21).
On September 11, 1967, an unidentified chiropractor noted his
treatment of the claimant on August 29, 1967, for lumbar radiculitis
with a slight sciatic neuritis. The chiropractor concluded that further
treatment would not be required, and the claimant had suffered no
work loss (Exhibit 27).
On September 20, 1974, the claimant was seen in the emergency
room of the Yale-New Haven Hospital. He was complaining of
severe pain in the left shoulder, and it was noted that he had a
two-year history of pain in the left shoulder (Exhibit 29).
53
Exhibit 31 is a report of attending physician Harold Levy
attesting to the fact that in August, 1975, the claimant had
undergone surgical repair of a wound to his right knee. The injury
was, in fact, sustained to the claimant’s left knee (Exhibit 30).
In a report dated April 6, 1977 (Exhibit 32), chiropractor
William J. Seery stated that he had seen the claimant on May 19,
1976, at which time the claimant was complaining of severe low
back pain and partial immobility of the lower back. The claimant
further stated that he had these symptoms since sustaining a lifting
injury on the job the previous day. Upon Dr. Seery’s examination,
the claimant was observed to have diffculty walking into the office
and palpation of the lumbar spine revealed severe spasm. X-rays
were termed consistent with muscle spasm and early degenerative
disc disease in the lower lumbar segments. The initial diagnosis was
of an acute severe lumbar sprain with resulting muscle spasm and
limitation of range of motion. The claimant was treated with
manipulation on 12 office visits following the initial examination of
May 19, 1976. He responded well to therapy and was able to resume
light duty on June 7, 1976. The claimant was last seen by
chiropractor Seery on June 18, 1976, at which time he reported
being asymptomatic. The claimant was advised to wear a lumbar
support. In Dr. Seery’s opinion, the resolution of the injury resulting
from the accident appeared complete at the time of discharge and
no functional diability remained at the time. However, evidence of
degenerative disc disease was apparent on X-ray examination which
obviously pre-existed the acute lumbar sprain for which the claimant
was treated.
On February 14, 1977, the claimant was seen by orthopedist
Ralph DePonte with primary complaints of pain in the left
shoulder. After examination and review of the X-rays, Dr. DePonte
concluded that the claimant’s signs and symptoms were compatible
with a bicipital tendinitis. The shoulder was injected with Steroids
and Xylocaine (Exhibit 38, page 1). Upon followup evaluation of
February 28, 1977, Dr. DePonte suggested that the claimant be
started on Sterazolidin and advised him to obtain physiotherapy.
He further concluded tha the claimant should stay out of work for
as long as possible, as his car polishing work involving exclusively
the left upper etremity seemed to be aggravating his symptoms
(Exhibit 38, page 2).
54
Exhibit 39 is a report of injury form dated February 28, 1977,
filled out by the treasurer of the claimant’s employer, the Wilson
Auto Sales Company. The report stated that the claimant was
subject to pain in the left shoulder from polishing cars by hand and
that his injury had occurred on February 28, 1977 (Exhibit 39).
On March 16, 1977, Dr. Nathan Levy submitted a report
(Exhibit 37, page 1), wherein he indicated that he had seen the
claimant on February 9, 1977, after the claimant has apparently
injured his right hip, thigh, and ankle while working. Dr. Levy
expressed his opinion that the claimant had suffered a sprain of his
left lower extremity and that there should be no permanent
disability as a result of his injury. On April 14, 1977, Dr. DePonte
submitted an additional report (Exhibit 40), noting that the claimant
had a lumbar sprain, a bicipital tendinitis of the left shoulder, and a
sprain of the left ankle which was improving. The claimant’s main
complaint was a left shoulder pain which prevented him from
performing his car polishing work. This condition was reportedly
persisting despite the Steroid injection. Dr. DePonte again recom-
mended physiotherapy.
On April 27, 1977, orthopedist Hubert Bradburn noted that he
had seen the claimant for shoulder pain, but that the claimant was
obtaining no benefit from treatment. Dr. Bradburn was at a loss to
suggest any further treatment.
In a report of June 15, 1977, Dr. Allen Toole expressed his belief
that the claimant had bilateral thoracic outlet compression syndrome,
as well as cervical ribs. Dr. Toole advised surgery (Exhibit 42, page
1). In a brief report of March 3, 1978 (Exhibit 42, page 2), Dr. Toole
reaffirmed his beiief that the claimant had thoracic outlet syndrome.
On June 28, 1977, the claimant was seen in orthopedic consulta-
tion by Dr. Ned Shutkin, primarily for assessment of left shoulder
pain and incidentaliy for evaluation of his low back (Exhibit 71).
X-rays of the left shoulder did not show any severe physical
abnormality, and X-rays of the low back did show what was termed
profound narrowing of the fourth lumbar intervertebral space. Dr.
Shutkin’s impression was that the claimant continued to have some
tendinitis of the left shoulder which might be improved with
appropriate ultrasonic treatments, physical therapy, and anti-
inflammatory medication. Surgery was suggested as a possible
55
alternative. However, Dr. Shutkin noted that the claimant's present
shoulder function was not too bad as long as the claimant did not
indulge in this particular occupational activity of car washer and
polisher. With respect to the claimant’s low back problem, Dr.
Shutkin concluded that the claimant presented evidence of a mild
herniated lumbar disc with right nerve impingement but without
neurological deficit. A corset and exercise therapy were recom-
mended, as well as further observation.
Exhibit 86 pertains to Dr. Shutkin’s ongoing assessments of the
claimant’s medical condition. In addition to the previously mentioned
evaluation of June 28, 1977, Dr. Shutkin also examined the
claimant on January 17, 1978, and July 19, 1978. On January 17,
1978, the claimant told Dr. Shutkin that he still had the same
difficulty, referable both to his left shoulder and to his low back. Dr.
Shutkin’s clinical findings upon examination established considerable
improvement in the claimant’s condition. With respect to the
claimant’s shoulder, Dr. Shutkin stated that despite the claimant's
expressions of extreme disability, he could find no objective or
tenable subjective evidence of any residual effects of trauma or of
any other active pathology.
On July 19, 1978, Dr. Shutkin provided a lengthy and detailed
report in which he summarized the claimant’s medical history as
well as his own prior examinations and reports. Dr. Shutkin noted
that as of the date of this examination, the claimant’s complaints
were referable to the left shoulder and to both heels and did not
include complaints of low back pain. While the claimant also
complained of some hip pain, Dr. Shutkin stressed that this was in
no way related to the previously reported sciatica. X-ray studies of
the cervical spine were described as negative for evidence of bone or
joint pathology, traumatic or otherwise. However, Dr. Shutkin
thought it significant that the claimant did have a congenital
irregularity of the seventh cervical vertebra which was termed to te
a prime factor in a bilateral scalenus anticus syndrome. X-ray of the
lumbar spine revealed that the claimant had only four presacral
non-rib bearing vertebrae with degenerative changes throughout the
lumbar spine and substantial narrowing of the fifth lumbar inter-
vertebral space. At this time, Dr. Shutkin provided a comprehensive
diagnostic impression in which he concluded that:
56
A. The ciaimant did have some residual disability referable to the
left shoulder, with the claim of progressive attrition to the
rotator cuff of the shoulder being tenable in terms of the
claimant’s activity. However, Dr. Shutkin said the surgery was
not advisable and would assess only a permanent partial
disability of 10 percent on the basis of current findings.
B. With respect to the claimant’s thoracic outlet syndrome, also
termed scalenous anticus syndrome, it was noted that the
claimant did have the congenital element of the bilateral cervical
ribs. He further stated that despite the positive test, the claimant
did not have any particular symptoms typical of such a thoracic
outlet syndrome and that there was no neurological deficit to
indicate any disability stemming therefrom. He further stressed
that the examination of the cervical spine was completely
negative.
C. With respect to the claimant’s low back difficulties, Dr. Shutkin
concluded that despite the congenital anomalies recounted, the
claimant did not present any tenable subjective or objective
findings of any active low back pathology.
D. With respect to the claimant’s complaints of foot pain, Dr.
Shutkin concluded that the claimant did have chronic plantar
fascial strain, particularly on the left side, but that this was not
occupationally related.
Exhibit 43 pertains to the reports of podiatrist Leonard Schneider
covering the period of January 6, 1978, through April | 1, 1978. Dr.
Schneider treated the claimant for spurs in both heels.
On April 12, 1978, orthopedist David Poverman submitted an
evaluation of the claimant’s condition (Exhibit 74). He noted that
the claimant’s primary complaints were of pain in the left shoulder
as well as low back pain. X-rays of the left shoulder were negative
and X-rays of the cervical spine showed a slight disc space
narrowing but no spurring at C3-4 as well as a large cervical rib on
the right. X-rays of the lumbar spine showed disc space narrowing
at L4-5 and L5S-S1. Dr. Poverman provided the following diagnoses:
(1) right cervical rib, (2) degenerated disc at L4-5 and LS-SI to a
mild degree, and (3) tendinitis at the long head of the biceps. It was
57
concluded that the tendinitis was probably attributable to the
claimant’s repetitive movements at his car washing job. Dr. Pover-
man stated that without surgery, the claimant would probably have
a permanent partial disability of 15% loss of use of the left arm.
On May 1, 1978, claimant was seen in orthopedic consultation
by Dr. Allen Goodman whose report is set forth as Exhibit 44. Dr.
Goodman noted the claimant’s complaints of left shoulder pain as
well as the fact that he had been treated by a large number of
doctors with medication and injection treatments without success.
After examination and review of X-rays obtained from Dr. Pover-
man, Dr. Goodman concluded that it was possible that the
claimant’s left shoulder symptoms were secondary to chronic
bicipital tenosynovitis. Upon examination, the claimant’s lumbro-
sacral motion was limited and the patient was unable to reverse his
lordosis. Nevertheless, his straight leg raising test was termed
negative bilaterally. Dr. Goodman termed this paradoxical. The
lower extremity examination was totally unremarkable. Dr. Good-
man concluded that the claimant’s probiems with his right shoulder
and lumbrosacral spine were insufficient cause to render the
claimant disabled and unable to carry out a large number of gainful
occupations. Dr. Goodman apparently erroneously referred to the
right shou!der instead of the left shoulder.
On May 18, 1978, Dr. Leonor Zito provided a neurological
evaluation of the claimant’s condition. Dr. Zito noted the claimant's
long and complicated medical history as well as the fact that he was
still undergoing medical evaluation for his multiple probiems. From
her neurological perspective, Dr. Zito concluded that the claimant
had chronic low back pain which was possibly due to the congenital
malformation. She feit that this problem should be ruled out,
although there was no clear neurological deficit related to it. The
alleged neurological deficit relating to the 1957 car accident, was
specifically described as very minimal, manifested by the claimant's
difficulty with small, fine, and rapid alternating movements. In an
accompanying residual functional capacities evaluation, Dr. Zito
concluded that the claimant had the physical strength to perform as
much as light work, that he could sit for one to two hours and walk
and stand for one to two hours without rest. Restrictions placed on
the claimant were described as difficulties in stooping, kneeling,
crouching, and crawling, as well as problems of complete use of his
legs due to pain. Again, it was noted that the claimant’s complaints
of chronic low back pain needed further workup (Exhibit 48).
In a report of June 13, 1978, Dr. Alvin Greenberg evaluated the
claimant’s complaint of low back injury providing the impression 1
that while the claimant likely had an early disc syndrome, he
certainly did not show enough to warrant any more aggressive
treatment than back strengthening exercises and lumbar support
(Exhibit 53). This consultative report was provided at the request of
Dr. DePonte.
On June 27, 1978, the claimant was seen in a hospital emergency
room for treatment of pain in his left shoulder, right arm, and
behind his neck. The diagnosis was of a probable cervical rib. The
claimant was treated with a cervical collar and moist heat, Tylenol
with Codeine and released (Exhibit 54).
X-rays of the cervical spine taken on June 27, 1978, indicated the
existence of bilaterally prominent transverse processes of the C7 or
cervical rib variance (Exhibit 55).
On June 28, 1978, Dr. Alvin Greenberg submitted a statement
(Exhibit 76), in which he indicated that the claimant has a
permanent partial disability of the back of 5%. |
In a report of July 10, 1978 (Exhibit 56), Dr. Ralph DePonte
indicated that the claimant had come into the office for evaluation
of his arm and back problems. The claimant’s diagnoses were listed
as cervical ribs, bicipital tendinitis on the left and low back strain. It
was noted that the claimant also apparently had a CVA type of
injury which left him with a residual right sided weakness. Dr.
DePonte’s neurologic examination was essentially unchanged from
prior examinations. It was his feeling that a resection of the
anomalous cervical rib on the right would be reasonable to alleviate
the claimant’s numbness and tingling in his right upper extremity. 4
Dr. DePonte felt that Dr. Greenberg was in a better position to
comment on the claimant’s neck and back complaints. Dr. DePonte
further indicated that there should be no medical intervention
concerning the claimant's chronic left shoulder problems.
On October 3, 1978, the claimant was seen in a hospital
emergency room for evaluation and treatment of pain in both heels
a ee ee |
59
which was found to be attributable to small spurs. He was treated
with heat and medication and discharged (Exhibit 57).
In a report of examination dated October 16, 1978 (Exhibit 59),
Dr. DePonte noted the existence of small spurs of the claimant’s
heels. Since the claimant’s Steroid injections had not satisfactrily
relieved his symptoms, it was suggested that he should change the
type of shoe he customarily wore. The claimant was described as
being able to walk fairly well as of the date of this examination and
did not display any appreciable limp (Exhibit 59).
In a report of orthopedic consultation dated October 30, 1978,
Dr. Ralph DePonte provided the impression that the claimant had
chronic tendinitis of the left shoulder and changes of the acromial-
clavicular joint. He was also reported to have a superficial sensory
deficit of the left forearm secondary to a traumatic laceration as well
as bilateral cervical ribs. It was noted that tests for thoracic outlet
syndrome were sometimes positive. The claimant also had chronic
fascitis of both feet (Exhibit 33).
In a letter addressed to Dr. DePonte on November 6, 1978,
consulting physician Bruce Hask reported that he had done
electrodiagnostic studies on Mr. Williams to evaluate possible
thoracic outlet syndrome. While Dr. Hask’s tests provided no
evidence to support the diagnosis of thoracic outlet syndrome, he
did note that this did not necessarily mean that the claimant was hot
subject to this condition (Exhibit 60).
The claimant continued to be treated by Dr. DePonte for
complaints of pain in the shoulder, hand, neck, and lower back. He
received injections of Steriods and Xylocaine. On January 11, 1979,
Dr. DePonte provided his opinion that because of his multiple
systems disorders including chronic tendinitis, bilateral cervical ribs,
chronic fascitis and thoracic outlet syndrome, the claimant was
essentially completely disabled from performing any type of useful
occupation requiring use of the upper extremities. In addition, the
chronic fascitis was described as making any occupation requiring
standing or walking appreciable distances virtually impossible. It
was Dr. DePonte’s impression that this “disability” had been present
in February, 1977, and had continued through January I1, 1979
(Exhibit 61).
Exhibits 24 and 26 establish that the claimant received medical
care in 1962 and again in 1965 because of depression and weight
loss. In a report of June 4, 1979, Dr. Ralph DePonte noted his
ongoing treatment of the claimant for his shoulder, heel and back
problems. The claimant had been given a pair of arch supports for
his feet and was also given a prescription for Tylenol with Codeine.
In a physical capacities evaluation of June 18, 1979, Dr. DePonte
reported that the claimant had the strength to perform sedentary
work. He specified that the claimant had a health systems disability
with respect to his shoulder, back and both heels and that, in
addition, he had a minor CVA some years ago (Exhibit 64).
However, Dr. DePonte also found at this time that the claimant
could only sit, walk, or stand for continuous periods of 1/2 to |
hour.
Chiropractor William Seery submitted a report on July 10,
1979, in which he indicated that he had seen the claimant on six
separate occasions between June 5, 1979, and June 27, 1979, for
treatment of severe chronic pain in the lumbar region with radiation
into the anterior thigh and groin on the right side. The claimant was
described as being unresponsive to manipulative treatments and Dr.
Seery recommended neurological consultation.
On June 5, 1980, podiatrist Anthony Nezlo submitted a report
wherein he indicated that he had treated the claimant on December
5, 1978, and expressed his agreement with Dr. DePonte that any
work requiring any standing or walking would be extremely difficult
for the claimant (Exhibit 67.)
On June 18, 1980, Dr. DePonte provided a report to Attorney
Robert M. Casale, the claimant's representative in the instant
proceeding (Exhibit 66). Dr. DePonte reviewed the claimant's past
medical history, treatment and diagnoses. He summarized by
describing the claimant as an individual who had restricted use of
his upper extremities because of a congenital cervical problem,
difficulty in sitting for any length of time because of a chronic
problem in his low back, an inability to stand and walk for long
periods of time because of his chronic fascitis. Dr. DePonte
concluded that “it would seem an almost impossible task to write a
job description which would allow this individual to work at any
gainful employment.”
61
In a subsequent report to ciaimant’s counsel dated September
29, 1980 (Exhibit 70), Dr. DePonte made specific reference to the
claimant's restriction and range of motion of both shoulders. Dr.
DePonte concluded there was a 19% impairment on the right
shoulder on the basis of restricted motion and a 27% impairment of
the left shoulder, again on the basis of restricted motion.
On November 18, 1980, consulting orthopedist David Poverman
provided an evaluation of the claimant's condition (Exhibit 87). At
this time the claimant was complaining of severe pain, primarily
under his heels, in his lower back, and in his left shoulder. Dr.
Poverman’s examination disclosed a full range of motion at the
hips, knees, and cervical spine. The claimant reportedly considered
his left arm his good arm as he reportedly had residual weakness in
his right arm, hand, and leg stemming from his 1957 automobile
accident. X-rays of the lumbar spine showed minimal spurring and
disc space narrowing with slight posterial spurring at L4-L5. (Note:
The minimal spurring was at the anterosuperior border of the
bodies of L3-L2.) Dr. Poverman provided the diagnoses of degen-
erated disc at L4-5, mild tendinitis of the left shoulder, bilateral
metaiapolgia and plantar fascitis. He concluded that the claimant
was able to do at least sedentary or light work. In his accompanying
physical capacities evaluation, Dr. Poverman specified that the
claimant could lift and carry as much as 20 pounds on occasion, and
that he could sit, stand and walk for two hour intervals and for as
much as three hours during an eight hour day. He further reported
that the claimant was able to use his hands for repetitive action and
that there were no restrictions on the claimant's ability to use his feet
for repetitive movements. The claimant was further described as
being occasionally restricted with respect to his abilities to bend,
squat, and reach.
SUMMARY OF TESTIMONY
The claimant testified that he was 44 years old at the time of the
hearing and that he is a high school graduate. He stated that in the
past he had performed mechanical, cleaning, and janitorial work,
but that for some 17 years prior to the time he last worked on
February 28, 1977, he was employed as a car washer and polisher by
the Wilson Auto Company.
62
The claimant testified that he had for many years suffered from
severe and widespread pain. According to the claimant, the pain was
primarily located in both feet and both legs. In the right leg, the pain
reportedly extended down below the knee. In the left leg, the pain
reportedly extended down below the knee. In the left leg, it was
present from the area of the groin to the knee. At no time had he
undergone back surgery. The claimant also emphasized that he had
for many years suffered from severe pain in the left shoulder. The
claimant, who is right handed, stated that since a 1957 automobile
accident, which had reportediy resulted in paralysis of his right side,
he had used his left hand as his dominant hand. The claimant stated
that medications he had taken in 1977 did not help his condition.
The claimant stated, in effect, that his motion was so restricted and
his pain so severe that he was unable to bend to put on his shoes and
socks and that his wife had done this for him for the past five years.
The claimant acknowledged that he was presently taking some
medication for his pain, but was unable to identify the particular
type. He also stated that he had in the past worn a belt support with
metal stays which had been prescribed by Dr. DePonte in 1977, but
that he had not worn this for the past month.
The claimant further reported that he is presently treated by Dr.
DePonte whom he had last seen a few weeks ago and who
prescribed him medication. At the prior administrative hearing of
May, 1979, the claimant testified that he had not seen Dr. DePonte
since December, 1978, and that he did not take medication on a
daily basis. (Exhibit 78, pages 62, 63, & 64)
With respect to his present physical functional capacity, the
claimant maintained that he is able to sit comfortably for only 10 to
15 minutes but that further sitting would result in pain in the right
leg and both feet and that sometimes his feet would go to sleep on
him. He stated that he used a cane at home, but did not bring it to
the hearing. His ability to stand comfortably was similarly restricted
to a period of about ten minutes and further standing would be
accompanied by pain on the bottom of both feet. The claimant
further stated that he had minimal problems with walking for
distances of up to 50 feet, but that further walking would be
accompanied with pain extending from his left groin to left knee.
Testimony concerning his capacity to lift was somewhat vague and
not responsive. On the one hand, he stated that he would have to get
63
down on his knees to pick up an object off the floor and that he
could lift ten pounds if somebody handed a ten-pound object to
him. On the other hand, in response to a direct question as to
whether he felt he could lift more than five pounds, the claimant
answered “I haven’t tried.”
The claimant lives in his own home with his wife and daughter.
He does little if anything in the way of household maintenance and
is essentially dependent upon his wife and daughter to do the chores.
He reportedly goes out very infrequently, but stated he was able to
drive a car on very short trips to a local store. However, this driving
activity was limited to two to three miles per week. The claimant
stated that most of his time at home was spent lying on the couch in
an attempt to be comfortable, that he watched a lot of TV, but did
no reading and had no hobbies. In response to questioning by his
attorney, the claimant stated that he had suffered from severe pain
essentially on a daily basis from February, 1977. The primary
locations of the pain were again described as being the legs and feet.
The hearing commenced at 11:10 a.m. and the claimant asked to
be excused at approximately 1:05 p.m. During the one hour and 55
minutes in which he was in attendance, the claimant stood up for
brief periods two or three times appearing to be in some discomfort.
He grimaced frequently during the course of the hearing and
appeared at times to be somewhat annoyed or upset because of
questioning by the Administration Law Judge. It was felt by the
undersigned that this display was occasioned more by general
frustration or impatience with the proceedings than by actual
physical pain or discomfort. The claimant wore loafers to the
hearing. He had a somewhat heavy set, muscular physical appearance
with a ruddy complexion and gave the appearance of being in a
state of good health.
The claimant’s wife, Lynn Williams, stated that she had been
married to and living with the claimant since August, 1962. She
stated that during this period, the claimant’s only job had been as a
carwasher and polisher and that he had no other special training
education or experience. She stated that the claimant had stopped
working on February 28, 1977, upon the recommendation of Dr.
DePonte and that the claimant was suffering from severe left
shoulder pain at this time. She performed essentially all the
household chores and the claimant did not assist with even simple
64
tasks such as vacuuming or dusting. According to Mrs. Williams’
testimony, the claimant’s condition had changed little since February,
1977. His primary activity, reportedly, was lying down on the couch
watching the television. The claimant is able to dress himself but
“not too often”. Mrs. Williams stated that the claimant required her
assistance in putting on his shoes and socks. Mrs. Williams further
stated that the claimant presently had a poor mental attitude and
that he did not think life was worth iiving. She was able to provide
some more specific information concerning the claimant’s medica-
tions, stating that he presently takes Tylenol with Codeine and that
in December, 1980, he had taken Nemex with Nalfon, that in
September, 1980, he had taken Robaxin, and that in October, 1980,
he took Motrin. It appeared from her testimony that the claimant
has had a somewhat sporadic course of medications and that he
does not feel he has had a positive response to any of the prescribed
medications. In fact, Mrs. Williams indicated that at times during
the past three years and for a seven or eight month period during
1979, the claimant had tried not to take any medications.
Dr. James K Phillips, a licensed psychologist, testified at the
hearing as a vocational expert. He described the claimant’s work
history as involving unskilled entry level positions. The Adminis-
trative Law Judge posed a hypothetical question to the vocational
expert wherein it was assumed that an individual of the claimant’s
age, education, and work background suffered from the following
impairments and limitations: back ailment, pain in both feet, left
shoulder pain. The individual was assumed to have gross manipu-
lative ability. The individual was assumed to be right handed but
had more strength in the left hand and favored the right hand. It
was further assumed that such an individual could sit, stand, and
walk two hours during the day. These periods were considered to be
not necessarily continuous but it was assumed that the claimant
could alternate these positions during the regular work day, if
necessary. The back ailment was assumed to require medication at
times, but despite this impairment, the individual was assumed to be
able to lift up to ten pounds. The individual was further assumed to
suffer from chronic foot pain which still permitted him to walk for
two hours during the day, as well as shoulder pain, which sometimes
needed medication. The vocational expert concluded that such
individual would not be capable of performing the work formerly
65
performed by the claimant as he would lack sufficient strength. In
response to the question as to what alternative jobs might be within
the capacity of such an individual, the vocational expert testified
such an individual could perform some limited entry level type jobs
such as information guard, watchman guard, light packager, stamper
and marker. Im response to a hypothetical question posed by
claimant’s counsel, the vocational expert testified that if an individual
of the claimant’s age, education, and work experience, with his
physical impairments, was unable to either stand, sit or walk for
periods of more than 1-1/2 hours at atime, that such an individual
would be incapable of performing any kind of substantial gainful
work which exists in the national economy. The vocational expert
also testified that if such an individual suffered from brain damage
which significantly limited his ability to remember, and if he suffered
from a chronic irritability, these additional factors would further
limit the types of occupations which might be available to him.
Throughout his testimony and his responses to all of the hypothetical
questions posed him, the vocational expert emphasized that a
critical factor in determining the residual functional capacity and
employability of the claimant was the degree of pain which he
suffered.
DISPOSITION OF PROCEDURAL MATTERS
The claimant was represented by his attorney during all of the
proceedings which took place before this Administrative Law Judge
in the resolution of the primary issue of disability and entitlement to
disability benefits and a period of disability based upon his
application for such benefits filed on July 28, 1977. The great mass
of documents potentiaily includable in the record was reduced to a
workable size by agreement with the claimant's attorney. It is the
considered opinion of the undersigned that the record as established
in the instant proceeding is a complete record of all relevant material
evidence needed to fully present the meritorious issues involved in
the claimant’s request for a hearing and decision by an Adminis-
trative Law Judge as mandated by the remand order of the Appeals
Council acting upon the order of the United States District Court.
66
Several requests were made by the claimant’s spouse to act as his
representative in a “co-representative” capacity with counsel. Such
requests have not been allowed and are expressly rejected by the
undersigned. The claimant has been and continues to be ably
represented by an attorney. To the extent that the attorney did not
join in the authoring of the tremendous flow of documents
submitted by the claimant’s spouse in the claimant’s name, the same
have not been made a part of this record and are contained in one
folder marked Appendix if needed for reference on appeal.
A request for disqualification of the undersigned to act as the
adjudicator in this entire proceeding was withdrawn by the attorney
at the commencement of the hearing without amplification.
A request for subpoenas made by the attorney was resolved by
the submission of interrogatories to two physicians who responded
thereto as indicated in the record.
Counsel objected to the reports of Dr. Ned M. Shutkin and Dr.
David Poverman, especially the latter, on the grounds that they
were not unbiased or neutral consultative physicians having been
retained to examine the claimant on behalf of the employer and/or
insurer for workmen’s compensation benefits which were disputed.
Upon reviewing all the reports of those physicians, I find no
evidence in the record demonstrating bias or prejudice of the
respective examining physicians. The record discloses no fact which
prevents the undersigned from accepting the reports of these two
physicians as an expression of their own observations of the
claimant, his description of his symptoms, findings upon examination
and medical conclusions reached after completion of such examin-
ation. I find that these physicians have prepared their reports in
accordance with the standards expected of an examining physician
and that the challenge to their credibility is without merit. I find no
evidence indicating that the physicians under discussion have been
or are committed to a finding or conclusion adverse to the
claimant’s pursuit of entitlement to benefits under the Social
Security Act.
In view of the multiple medical reports and evidence contained
in the record, I have decided that requesting further examination of
the claimant by yet another physician is not warranted.
67
At the hearing, the undersigned made it clearly known to the
claimant, his spouse and his attorney that only the one counsel was
recognized by this adjudicator as the representative acting on the
claimant’s behalf in these entire proceedings. Subsequent to the
hearing, numerous documents continued to reach this office expres-
sing the efforts of the spouse, with the claimant’s approval, to raise
additional issues and add further argument in support of the claim
for benefits. This activity included expressing challenges to the
propriety of the proceedings by the undersigned with submission of
such challenges to persons and officials outside of this forum. The
record is to show that in preparing and issuing this recommended
decision, the undersigned was not influenced by any person or
official outside of this forum, nor was my decision influenced by the
unusual procedures and challenges made known to me which were
adopted by the claimant and his spouse in pursuing their objective.
EVIDENCE CONSIDERED
The undersigned has carefully considered all the testimony given
at the hearing, the arguments made, and the documents described in
the List of Exhibits attached to this decision. The documentary
record consists of Exhibits marked | through 102.
EVALUATION OF THE EVIDENCE
To be entitled to disability insurance benefits, the claimant must
establish that 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.
As stressed by the United States District Court in its Remand
Order, a crucial determination to be made by the undersigned
concerns the credibility of the claimant’s subjective complaints of
pain and functional limitations. If the claimant’s testimony with
respect to his pervasive severe pain and his inability to sit, stand,
walk, bend and move were accepted as totally credible, it would
indeed, in the words of his treating physician, “seem an almost
impossible task to write a job description which would allow this
individual to work at any gainful employment”.
The undersigned recognized the generally accepted principle that
subjective complaints of pain may, if credible, form the basis of a
disability determination even if they are unaccompanied by specific
clinical findings or objective medical evidence. While such complaints
cannot be dismissed or discounted because they may be largely
inconsistent with or unsupported by the record medical evidence,
the extent of such inconsistency or unsupportability is one of the
factors to be considered by the undersigned in making a credibility
determination. Therefore, it is significant to the undersigned that in
the instant case, the. claimant’s subjective complaints of total
disability due to pain, loss of mobility, and ioss of function are
glaringly inconsistent with the substantial weight of the medical
evidence. It is noted that the medical record as a whole could be
interpreted to support the cla:mant’s allegations of left shoulder pain
and foot pain. But aside from statements of treating Dr. DePonte,
the voluminous medical record does not contain any medical
opinion expressing a conclusion that the claimant's pain is so severe
or his loss of function so great as to prohibit him from performing
any substantial gainful activity, or that his purportedly disabling
impairment was of continuing severity for any 12-month period.
There is, in fact, substantial medical evidence expressive of a
contrary conclusion, indicative of medical opinion that the claimant’s
complaints have been exaggerated.
For example:
On June 28, 1977, examining physician Shutkin concluded with
respect to the claimant’s alleged lower back impairment that he
presented evidence of a mild herniated lumbar disc, but recom-
mended only a corset, exercise therapy, and further observation.
On January 17, 1978, Dr. Shutkin indicated that examination
of the claimant’s low back presented a completely normal
lumbar lordosis without any muscle spasm. The leg tests of low
back derangement were negative and no neurological deficit was
noted. Dr. Shutkin also concluded at this time with respect to
the claimant’s shoulder complaint that “despite the claimant's
evincing extreme disability, 1 can find no objective or tenable
subjective evidence of any residual effects of trauma or any
other active pathology”.
In his summary of July 19, 1978, Dr. Shutkin concluded that
while the claimant had a 10% disability of the left shoulder, he
69
still did not present any tenable subjective or objective findings
of any active low back pathology and that he did not have any
particular symptoms typical of a thoracic outlet syndrome and
that there was no neurological deficit indicative of a disability
stemming therefrom.
On April 12, 1978, Dr. Poverman concluded that the
claimant suffered from a degenerated disc at L4-5 and LS5-S1,
but only to a mild degree.
On May 1, 1978, Dr. Goodman termed the claimant’s
negative straight leg raising test “paradoxical” given the
claimant’s self-demonstrated limitation of motion. He concluded
that the claimant’s problems with his shoulder and spine were
“insufficient cause to render the claimant disabled and unable to
carry out a large number of gainful occupations”.
In her report of May 18, 1978, neurologist Leonor Zito
concluded that there was no clear neurological deficit stemming
from the claimant’s congenital malformation deficit and des-
cribed as very minimal the alleged neurological deficit relating
to the claimant’s 1957 car accident.
On June 13, 1978, Dr. Alvin Greenberg stated that while the
claimant likely had an early disc syndrome, he certainly did not
show enough to warrant any more aggressive treatment than
back strengthening exercises and a lumbar support.
It is significant to the undersigned that the claimant’s assertions
regarding his strength to the contrary, the medical evaluations have
uniformly indicated that the claimant has the strength to perform at
least sedentary work (Exhibits 86, 44, 48, 64, and 87). This specific
opinion has been shared even by treating physician DePonte. With
respect to the reports of Dr. DePonte, it is further noted that
although he had treated the claimant from February, 1977, onward,
it was not until January 11, 1979, that Dr. DePonte made any kind
of conclusion concerning the claimant’s “disability” and that even
this conclusion failed to set forth any specific findings concerning
the claimant’s inability to perform sedentary work. While the
claimant maintained at the hearing that he had ceased working
70
upon the advice of Dr. DePonte, it is clear from Dr. DePonte’s 1977
reports that the claimant was seen at this time primarily for
treatment of his shoulder injury rendering return to car polishing
work inadvisable, but not necessarily leading to the conclusion that
the claimant was thereby rendered incapable of performing alterna-
tive employment. Furthermore, the evidentiary weight to be afforded
Dr. DePonte’s letters of January 11, 1979, and June 19, 1980, must
be considered in light of all of the medical evidence including his
own prior reports as well as the fact the latter report was specifically
offered to claimant’s counsel in preparation for the instant hearing.
After painstaking review of the medical evidence the undersigned
has outlined, supra, the reasons why such documentary evidence is
inconsistent with and not supportive of the claimant’s testimony.
Attention is now focused on other factors pertinent to a credibility
determination:
(1) The claimant discontinued work in apparent response to a
flareup of shouider pain, yet as indicated by both his testimony
and documentary evidence, his other impairments substantially
predated the alleged onset of disability. As evidenced by the
claimant’s Social Security earnings record, the claimant engaged
in regular work activity throughout 1975 and 1976 earning in
excess of $11,000 from car polishing work in each of these years.
It is significant to a consideration of the potentially disabling
effect of the claimant’s non-shoulder impairments that (a) at the
hearing of May, 1979, the claimant testified that “my feet were
bothering me for years before I left Wilson’s”, (b) the claimant’s
cervical rib condition has been described as congenital and like
his thoracic outlet syndrome, did not prevent him from working
unsuccessfully for many years, (c) similarly, despite the auto
accident of 1957, and the minor CVA and residual right-sided
weakness, the claimant worked successfully for many years, and
(d) the claimant complained of and was treated for back
problems as early as May, 1976, but again worked successfully
until February, 1977. The medical evidence shows that the
frequency of treatment for back problems has in fact diminished
in recent years. In sum, it is significant to the undersigned that
despite the existence of numerous long-standing afflictions and
arate
AP eS Oy AROS, Seni ibe ASN A dans Ata
NE OG SARA PL MN OREO ME
(2)
(3)
(4)
(5)
(6)
71
complaints the claimant worked regularly until February, 1977,
at a job, which in addition to repeated arm and shoulder
movements involved almost constant standing, walking, and
bending. This fact casts doubt upon the extent to which the
claimant’s non-shoulder impairments contribute to his alleged
disability.
Since the alleged onset of his disability, the claimant has not
required inpatient hospitalization. He has never undergone back
surgery or a myeiogram although some surgical procedures
have been recommended to him as a means of alleviating his
pain.
In the past three years, the claimant has been treated only by
Dr. DePonte and on a relatively infrequent basis.
While over the years the claimant has been prescibed various
medications by different doctors, neither testimony nor the
testimony of his wife indicated that during the past few years, he
has regularly taken major pain medication.
While the claimant and his wife generally asserted that he does
little except lie on the couch, he is capable of driving a car albeit
on limited occasions and for very short distances. He is
generally mobile and considering his wife’s work activity and
daughter’s school attendance, has evidently been capable of
taking independent care of his personal needs during the day.
At the hearing of January, 1981, the claimant did not emphasize
the existence of back pain, but did stress experiencing shoulder
and leg pain. Some of the claimant’s testimony concerning his
pain is puzzling. For example, he testified that he can only sit
for 10 to 15 minutes but then would feel pain in his left leg and
both feet. While it is indicated by the medical evidence that the
claimant’s foot problem is incidental to the chromic plantar
fascitis which is aggravated by walking and standing, it would
seem that this pain would be alleviated by sitting. As noted, in
response to the undersigned’s inquiry as to his ability to lift 5
pounds, the claimant stated “I haven’t tried.” The latter statement
72
is not credible in view of the abundant medical evidence
regarding the claimant’s functional capacity.
(7) The claimant’s appearance and demeanor at the hearing were
suggestive of chronic irritability and frustration with the
proceedings, but were not suggestive of a manifestation of
severe disabling pain.
For all of the reasons outlined supra, the undersigned concludes
that the claimant’s subjective complaints of disabling pain, loss of
strength, and loss of function are not credible. While it is acknow-
ledged that these symptoms exists to a certain degree, the claimant’s
assertions concerning their purported disabling severity are rejected.
Attention is now focused on the extent to which the claimant's
impairments and symptoms restrict the type of jobs which he is
capable of performing. In the judgment of the undersigned, the
claimant retains the strength to perform sedentary work, an assess-
ment which is uniformly held by medical opinion throughout the
record.
Given the claimant’s age, education, and work experience, and
considering the vocational testimony as well as the medical-
vocational guidelines contained in Appendix 2 to Subpart P of
Social Security Regulations No. 4, it is apparent that, if in fact the
claimant retained the resicual functional capacity to perform a full
range of sedentary work, he would be found to be not disabled.
However, the claimant asserts that additional restrictions placed
upon his abilities to sit aiid stand comfortably as well as ostensibly
an impairment of his mental capacity, render him incapable of
performing even sedentary work on a regular and sustained basis.
Vocational expert Phillips testified that the ability to perform
sedentary work presupposed an ability to sit comfortably for a
continuous period of between i-1/2 to 2 hours. Social Security
Regulation 404.1567 states that although a sedentary job is defined
as one which involves sitting, a certain amount of walking, and
standing is also necessary in the carrying out of such job duties. The
regulation further specifies that jobs are sedentary if walking or
fee ee
onan oD
el eR i eee ee
SDM AAPOR BIC he as OF
73
standing are required occasionally and other sedentary critieria are
met. In the instant case, the claimant’s combination of impairments
result in strength limitations as weli as non-exertional limitations,
the non-exertional limitations being postural limitations and some
manipulative limitations. Given the residual effects of his minor
stroke, the claimant apparently lacks the ability to perform fine
hand and finger manipulative limitations. Given the residual effects
of his minor stroke, the claimant apparently lacks the ability to
perform fine hand and finger manipulation. However, his gross
manipulation is unimpaired. Since there are some non-exertional
limitations, the medical-vocational guidelines contained in Appendix
2, to Subpart P cannot be used to direct a finding in this case,
although, as noted, the undersigned concludes from the record
evidence that the claimant retains the strength to perform at least
sedentary work. The rules contained in the appendix do, however,
provide a framework for consideration of how much the claimant’s
work capability is further diminished in terms of any types of jobs
that would be contraindicated by the non-exertional limitations.
The undersigned is satisfied that the claimant does not suffer from
any mental impairment which would significantly affect his residual
functional capacity to perform sedentary work. The claimant has
received no psychiatric or psychological treatment or consultation.
There is no convincing documentary or testimonial evidence provided
that the claimant’s thought processes or intellectual capacity are at
all diminshed. As noted, while the claimant did manifest a somewhat
irritable demeanor, he was able to understand the questions of the
Administrative Law Judge which he answered as he saw fit and
displayed full command of his faculties and mental resources. Nor is
there any probative evidence that the claimant’s irritability is of such
severity that it could be expected to affect significantly his relation-
ship with supervisors or coworkers.
To undersigned, the most prominent factor is determining the
claimant’s residual functional capacity to perform alternative work
is his alleged back pain. Consideration of the claimant's back pain
aside, the undersigned is satisfied that the claimant’s other impair-
ments notwithstanding, he is capable of performing many sedentary
jobs. It is the further judgment of the undersigned that if the
claimant’s residual functional capacity is not or was not additionally
74
constricted by severe low back pain specifically affecting his ability
to sit, considering said residual functional capacity within the
framework of the medical-vocational guidelines as well as the
vocational testimony, the claimant would retain the ability to
perform a significant range of sedentary occupations as specified by
the vocational expert. The crucial but difficult determination to be
made concerns the extent to which the claimant’s work-related
functions were or are complicated by back pain.
The claimant has, in the past, received sporadic evaluation and
treatment for his complaints of low back pain which had been
generally felt to be attributable to recurrent lumbar strains as well as
what has been described as a mild herniated lumbar disc with slight
nerve impingement (Exhibits 71 and 35). The claimant was treated
with exercises and a lumbar support (Exhibit 53), received repeated
chiropractic treatments, and was treated by Dr. DePonte by
medications and injections. However, as stressed at length supra, the
consensus medical opinion has been that this has not been a serious
impairment. The claimant has not required surgery or other major
medical intervention because of his back problem. Despite the
specific statement of Dr. DePonte, the substantial weight of the
medical, testimonial, and circumstantial evidence supports the
conclusion herein made that despite his slight back impairment, the
claimant has at all times retained the ability to sit down for
continuous two-hour periods during a normal work day. It is also
noted that the claimant is able to walk an appreciable distance as
evidenced by his own statement that he had “no problems” with
walking as much as 50’, that he is able to stand for short periods,
and that, as indicated by his behavior at the hearing, he prefers to
change position from time to time. It is specifically concluded that
the claimant’s ability to sit has not been severely restricted by back
pain, and that he has been able to sit for sufficient periods to
perform sedentary work.
Reference is made to the vocational expert’s testimony concerning
the circumstances under which an individual of the claimant’s age,
education, and work experience could perform some limited work
such as information guard, watchman guard, packager, marker or
stamper of finished products. It is concluded that the substantial
eed
she ON inl ci ae TY | B RL ALS Wd LAME DIRE DPI RA a teat S
wr Avn 7:
75
weight of the testimonial and medical evidence, as well as the
claimant’s appearance and demeanor at the hearing, the absence of
inpatient hospitalization and regular pain medication, as well! as his
work activity despite many impairments up until his alleged onset
date established that the claimant has at all times retained the
residual functional capacity to perform the alternative jobs suggested
by the vocational expert.
Reference is also made to the medical-vocational guidelines
contained in Appendix 2 to Subpart P of Social Security Regulations
No. 4. As noted, these rules cannot be used to direct a factual
finding of disabled or not disabled as in the instant case the claimant
is suffering from a combination of impairments causing both
exertional and non-exertional limitations. However, it is concluded
that neither the claimant’s back pain nor the impairment of his
manipulative abilities would significantly affect his residual functional
capacity for sedentary work. Therefore, the claimant’s residual
functional capacity is to be considered within the framework of the
above-cited regulations.
Given the claimant's age of 45, his high school education, his
unskilled work experience, and his residual functional capacity for
many types of sedentary work, his medical-vocational profile closely
corresponds with Rule 201.18. Considering the claimant’s residual
functional capacity along with his age, education and work experi-
ence within the framework of said rule 201.18, and taking cognizance
of the vocational testimony, it is concluded that the claimant retains
the residual functional capacity to perform certain unskilled seden-
tary jobs such as light packager, watchman guard, information
guard, marker, and stamper. As evidenced by the vocational
testimony, these jobs can be performed with a 10-pound strength
capacity. Given the claimant’s strength capacity for work, the
postural and manipulative limitations placed upon him would not
contraindicate performance of a sufficient number of the otherwise
suitable sedentary occupations so as to warrant a conclusion that
the claimant is unable to engage in any substantial gainful activity.
In making this determination, the Administrative Law Judge
acknowledges that in light of the voluminous and complex medical
76
record developed over the course of 24 years as well as the diversity
of the claimant's allegations, there exist certain anibiguities and
conflicts which are incapable of precise reconciliation.
It is not necessary for the undersigned to reconcile every
conflicting shred of medical evidence but it suffices that the
undersigned carefully consider all the exhibits presented in the
evidence as a decision is reached.
The undersigned is satisfied that the claimant has had a full, fair,
and impartial hearing and that the substantial weight of the medical,
testimonial, and other documentary evidence suggests the decision
herein recommended. It is found that at no time through the date of
this recommended decision has the claimant been disabied within
the meaning of the Social Security Act.
FINDINGS
After careful consideration of the entire record, the Administ-
rative Law Judge makes the following findings:
1. The claimant met the special earnings requirements of the Act
on February 28, 1977, the date that the claimant stated he
became unable to work, and continues to meet them through at
least September 30, 1981.
2. The claimant has the following impairments: chronic tendinitis
of the left shoulder, chronic plantar fascitis, mild degenerated
disc at L4-5, episodic muscle spasms of the lower back, bilateral
cervical ribs, probable thoracic outlet syndrome, residual right-
sided weakness from possible minor CVA sustained in 1957.
3. The claimant's subjective complaints of totally disabling pain,
loss of function, and loss of strength are not credible. The
claimant does not suffer from any mental impairment which
significantly limits his ability to perform basic work-related
functions.
4. The claimant has the residual functional capacity to perform
12.
13.
77
work-related functions except for work involving more than
sedentary exertion, fine dexterity or fine manipulative abilities,
or sustained sitting, walking, or standing for more than two-
hour continuous periods.
. The claimant is unable to perform his past relevant work as a
car washer and polisher.
Considering the exertional limitations only, the claimant has the
residual functional capacity for at least sedentary work as
defined in Reguiation 404.1567.
The level of work the claimant can do in light of the exertional
limitations is not affected by the non-exertional limitations to an
extent which would preclude the performance of substantial
sedentary work.
The claimant is 45 years old, and is a younger individual as
defined in the Social Security Regulations.
. The claimant has a high school education.
In view of the claimant’s age and residual functional capacity,
the issue of transferability of work skills is not material.
Based on the claimant’s exertional limitations only, Regulation
404.1569 and Rule 201.18 of Appendix 2, Subpart P, Regulations
No. 4, would direct a conclusion that the claimant, considering
his residual functional capacity, age, education, and work
experience, is not disabled.
The claimant’s non-exertional limitations do not totally restrict
his residual functional capacity for sedentary work. Therefore
considering that capacity within the framework of the above
rule, the claimant is not disabled.
Considering his age, education, work experience, and residual
functional capacity, the claimant retains the ability to perform
some selected sedentary jobs such as light packager, information
guard, watchman guard, marker, and stamper. These jobs exist
78
in significant numbers in the geographical area of the claimant's
residence.
14. Because he retains the ability to perform substantial alternative
work, the claimant was not under a “disability”, as defined in
the Social Security Act, at any time through the date of this
decision.
RECOMMENDED DECISION
In view of the foregoing, it is the recommended decision of the
Administrative Law Judge that the claimant, based on his application
filed on July 28, 1977, is not entitled to a period of disability or to
disability insurance benefits under Sections 216(i) and 223, respec-
tively, of the Social Security Act, as amended. However, this
decision is a recommendation only and the Appeals Council will
issue a final decision allowing or denying the claim.
Pursuant to the order of the Appeals Council, the claimant may
file, within twenty days from the date of notice of the recommended
decision, briefs, or other written statements of exceptions and
comments as to applicable facts and law. After the twenty-day
period has expired, the Appeals Council will review the record and
issues its decision.
CLEMENT J. KICHUK
Administrative Law Judge
DATE: July 24, 1981
Fe ne TT eT
ees -
79
APPENDIX N
DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
DECISION OF APPEALS COUNCIL
In the case of
Richard E. Williams
Claim for
Period of Disability and Disability Insurance Benefits
Social Security Number
047-28-0012
The United States District Court for the District of Connecticut
remanded this case (Civil Action Number N-79-338) to the Secretary
of Health and Human Services for further administrative action.
Thereafter, the Appeals Council remanded the case to an adminis-
trative law judge.
On July 24, 1981, a recommended decision was issued to which
exceptions have been received.
On August 11, 1981, the claimant submitted a voluminous brief
and during the following two weeks, several addenda were made.
He argued that he had sustained the burden of proof by showing
that he was unable to return to his former work but that the
Secretary had not shown through substantial evidence that there is
other work which he could do. The claimant also made numerous
objections to alleged procedural deficiencies by the administrative
law judge including: (1) his failure to disqualify himself from the
proceedings, (2) his disqualification of the claimant's wife as co-
counsel, (3) his failure to subpoena medical witnesses to testify at the
hearing, (4) his failure to admit documentary evidence into the
record and, (5) his admission of other evidence into the record
which the claimant found prejudicial.
The Appeals Council believes that the administrative law judge's
recommended decision does meet the Secretary's burden of proof in
establishing that the claimant can perform substantial gainful
activity. The decision not only clearly and accurately summarizes
and evaluates the medical record, but also attempts to answer the
claimant's objections and is totally in keeping with the terms of the
United States District Court’s ruling and the United States Magis-
trate’s judgment.
The District Cout instructed the administrative law judge to
carefully evaluate the claimant's subjective complaints of pain and
obtain additional medical reports from treating sources to clarify
and focus medical opinion. This he has done. The Court also noted
that “... it is not surprising that the evidence lacks cogent focus when
it is considered that the couple lacked an attorney’s guidance in
presenting testimony and eliciting pertinent opinion in persuasive
context.” Therefore, it is not surprising that the administrative law
judge should disqualify the claimant’s wife as co-counsel, (she, of
course, was allowed to testify), or seek to focus the attention on the
specific issues. In fact, a pre-hearing conference was held in order to
clarify the issues, identify the need for any additional medical
evidence, eliminate duplicate or procedural documents from the
record and set forth ground rules for the formal hearing. The
Council, therefore, believes that the claimant’s objections are
substantially lacking in merit, are not persuasive in showing that he
has been denied due process and do not warrant any modification of
the administrative law judge’s recommended decision.
The Appeals Council adopts the findings and conclusions in the
recommended decision. It is the decision of the Appeals Council
that, based on the application filed on July 28, 1977, the claimant is
er ee ee WD
not entitled to a period of disability or to disability insurance
benefits under the Social Security Act, as amended.
APPEALS COUNCIL
Marshall C. Gardner, Member
Roland L. Vaughan, Jr., Member
DATE: October 13, 1981
APPENDIX O
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CIVIL NO. N-79-338
ENE Gis WOME 66s b san bv innbacccsetccess Plaintiff
PATRICIA R. HARRIS,
Secretary of Health, Education and Welfare,.......... Defendant
RULING ON PENDING MOTIONS
In these limited judicial review proceedings, cf. 42 U.S.C. §
405(g), plaintiff challenges administrative denial of his benefits claim
under the Social Security Act for asserted “disability”, i.e., “inability
to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment”, 42 U.S.C. §
82
423(d) (1} (A). This Court has no power to retry the merits of such a
claim de novo, see, e.g., Bastien v. Califano, 572 F.2d 908, 912 (2
Cir. 1978). When the defendant Secretary has applied correct legal
standards in reaching decision, see, e.g., Marcus v. Califano, 615
F.2d 23 (2 Cir. 1979), the administrative findings of fact must be
treated as conclusive if supported by “substantial evidence”, § 405(g)
— “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion”, Richardson v. Perales, 402 U.S.
389, 401 (1971), quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938). In testing the administratively developed
record to determine whether such “substantial evidence” exists, the
Court is of course “performing an appellate function”, Zambrana v.
Califano, 651 F.2d 842, 844 (2 Cir. 1981). As this Court earlier
observed in remanding the instant claim for administrative rehearing
opportunity to clarify the record after plaintiff had secured counsel,
see, e.g., Hankerson v. Harris, 636 F.2d 893, 897 (2 Cir. 1980), “the
Secretary is the trier of fact” and “must accordingly exercise the
trier’s necessary authority in resolving uncertainties or conflicts and
in assessing persuasive weight of proofs; this Court is not free simply
to substitute its judgment for . . . [the Secretary's] in such matters”,
Williams v. Harris, Civil No. N-79-338, slip op. at 2 (D. Conn.
1980). Studied in that light, the extensive record now before the
Court does seem to yield adequate support for the Secretary's
adverse ruling, despite plaintiff's forceful arguments to the contrary.
Plaintiff is a middle-aged man, a high school graduate who had
long been employed in an unskilled, physically demanding job
washing and polishing cars; he claims to have been unable to
continue or to do any other useful work from 1977 on due to
numerous professed ailments and associated pain. The Secretary
had found that plaintiff does suffer to some degree from the
following conditions: “chronic tendinitis of the left shoulder, chronic
plantar fascitis, mild degenerated disc at L4-5, >pisodic muscle
spasms of the lower back, bilateral cervical ribs, probable thoracic
outlet syndrome, residual right-sided weakness from possible minor
CVA sustained in 1957”. The Secretary has also found, however,
that plaintiff's “subjective complaints of totally disabling pain, loss
of function, and loss of strength are not credible”, and that he “does
83
not suffer from any mental impairment which significantly limits his
ability to perform basic work-related functions”.
Disability for the purpose of the statutory benefits sought would
exist if the demonstrated “impairments are of such severity” that
plaintiff “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”, 42 U.S.C. § 423(d) (2) (A). Although concluding that
plaintiff no longer could “perform his past relevant work as a car
washer and polisher”, the Secretary has also determined that
plaintiff does retain “that ability to perform some selected sedentary
jobs such as light packager, information guard, watchman guard,
marker, and stamper”, and is therefore not disabled within the strict
meaning of the Social Security Act.
The threshold issue is whether the decision rests on the applica-
tion of proper legal principles, and there appears no ultimate failure
here to recognize controlling legal standards. After lengthy rehearing
on remand, an administrative law judge denied plaintiff's disability
claim by written opinion thoroughly detailing his assessment of the
voluminous evidentiary record, and that ruling was approved by the
appeals council. As is well settled, a benefits claimant has the burden
of proving disability, but once he shows “that his impairment
prevents his return to his prior employment, the burden shifts to the
Secretary, who must produce evidence to show the existence of
alternative substantial gainful work” which the claimant could still
do, Parker v. Harris, 626 F.2d 225, 231 (2 Cir. 1980). At one point in
his opinion, the administrative law judge did indicate rather broadly
that “the claimant must establish that his . . . impairments are of
such severity that he is not only unable to do his previous work, but
cannot . . . engage in any other kind of substantial gainful work”,
paraphrasing the statutory “disability” language set forth above, cf.
42 U.S.C. § 423(d) (2) (A). In approving that administrative trier’s
recommended decision, however, the appeals council expressly took
into account “the Secretary's burden of proof in establishing that the
claimant can perform substantial gainful activity”. The administrative
law judge’s development of the hearing record and his weighing of
84
evidence, moreover, make it clear enough that the burden shift was
actually understood and addressed by him at the hearing stage.
Indeed, the administrative law judge patently followed no mere
“failure of proof” analysis, but acted affirmatively to produce and
evaluate evidence. For example, instead of simply pointing to the
Secretary’s “medical-vocational” guidelines, cf. Parker v. Harris,
supra at 234, and attempting to take administrative notice of
undemanding jobs which plaintiff could do with the personal
limitations credited from medical evidence and lay testimony, the
administrative law judge called a vocational expert witness who
testified at some length when posed varying hypotheticals by the
hearing judge and plaintiff's counsel, discussing as well the relative
significance of factors mentioned and the corresponding demands of
a number of specific, unskilled jobs of a “sedentary” nature. Cf.
Campbell v. Secretary of Health and Human Services, 665 F.2d 48,
53-54 (2 Cir. 1981), cert. granted, 50 U.S.L.W. 3998.01 (1982).
In response to certain states of health hypothesized by the
administrative law judge, that expert witness considered that plaintiff
could perform such limited jobs as that of an “information guard
where he can sit or stand at will and walk around an area in which
he’s located”. In response to other hypothetical inquiries by piaintiff’s
counsel, the witness considered that plaintiff could perform such
limited jobs as that of an “information guard where he can sit or
stand at will and walk around an area in which he’s located”. In
response to other hypothetical inquiries by plaintiff's counsel, the
witness agreed that plaintiff would be “unemployable” if “the
ingredient of pain” were credited, and concurred in counsel's
description “that the most critical factor . . . as to any of the
hypotheticals posed would be the degree of pain that the man
suffers”. In that regard, the administrative law judge clearly under-
stood that “subjective” pain complaints can be sufficient basis for
disability, the question being one of credibility, see, e.g., Marcus v.
Califano, supra at 27, and that the central problem in this instance
would be to gauge that true extent of pain experienced. As noted at
the outset, no wholly disabling degree of pain was eventually
credited. The question in these limited review proceedings is again
simply whether that assessment by the administrative trier is
permissible on the evidence presented.
85
Whatever this Court’s view of the evidence’s persuasive weight
might have been, there does seem at least “such relevant evidence as
a reasonable mind might accept as adequate”, Richardson \y.
Perales, supra at 401, to support the Secretary’s conclusions, as
indicated in the administrative law judge's careful and detailed
written evaluation of medical evidence and other indicia of credibility.
He was surely aware in that connection that the “expert opinion of a
claimant's treating physician is entitled to particular weight”, Parker
v. Harris, supra at 231, indeed generally said to be “binding on the
factfinder unless contradicted by substantial evidence to the cont-
rary”, id. at 232, quoting Bastien v. Califano, supra at 912. The real
ques-ion again is just how the reliable state of the evidence might
reasonably appear to the trier; again, however this Court might have
ruled as a trier, there was “more than a mere scintilla”, Perales,
supra at 401, of evidence to raise doubts for the administrative
factfinder.
For example, although plaintiffs treating physician, Dr.
DePonte, did finally label him disabled, the observations of other
examining orthopedic surgeons could have fairly indicated substan-
tial reason to the Secretary to adopt a different view. Limits of
plaintiff's functioning, in his ability to sit or stand fo: certain
periods, or to move about, are naturally linked to the degree of pain
credited, and there are a number of potentially telling reports of
medical examination. On one occasion, Dr. Poverman noted full
motion of plaintiffs cervical spine without tenderness, and further
reported a negative straight leg raising test with little back tenderness
and no spasm, concluding that plaintiff should be “able to do at
least sendentary light work”. On another, Dr. Goodman remarked
that his negative straight leg raising test result was “paradoxical”,
and commented that while plaintiff “arose with an expression of
discomfort”, he “moved about quite freely when he disrobed”; Dr.
Goodman found no “sufficient cause to make this patient disabled
and unable to carry out a large number of gainful occupations”. In
the course of one of his examinations, Dr. Shutkin found that
although plaintiff was “evincing extreme disability” of shoulder,
there appeared “no objective or tenable subjective evidence of any
residual effects of trauma or of any other active pathology”. On a
86
subsequent examination, Dr. Shutkin reported further that plaintif
“does not present any tenable subjective or objective findings of any
active low back pathology”. Such indications as these logically have
bearing on a trier’s assessment of both the overall state of the
medical evidence and the credit to be given lay testimony more
generally.
In these and other pertinent respects discussed at length in the
administrative law judge's opinion, the Secretary as factfinder could
have reached varying evaluations of plaintiff's state, including the
evaluation indicated by hearing colloquy with the vocational expert
witness. Since that assessment appears permissible, not lacking a
“substantial evidence” foundation when the factfinder’s appropriate
role in drawing inferences and resolving ambiguities is borne in
mind, this court has no authority in these limited review proceedings
to disturb the Secretary's final decision.
Subject now to prior and de novo review by the trial judge of the
instant ruling on any timely objection, cf. 28 U.S.C. § 636(b), Rule
2, D. Conn. Rules for U.S. Magistrates (as amended, October |,
1981), plaintiff's motion for summary judgment herein is accordingly
denied, and the defendant Secretary's motion for affirmance is
correspondingly granted.
Dated at New Haven, Connecticut, this 15th day of April 1983.
ARTHUR H. LATIMER
UNITED STATES MAGISTRATE
87
APPENDIX P
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CIVIL NO. N-79-338
SPEED Gin WOUMMNUEENS 00 cc esecceusevicwcccccceus Plaintiff
VS.
PATRICIA R. HARRIS,
Secretary of Health, Education and Welfare, .......... Defendant
JUDGEMENT
This cause came on for consideration on plaintiff's motion for
summary judgment and defendant Secretary's motion for affirmance
before the Honorable Arthur H. Latimer, United States Magistrate,
and a Ruling on Pending Motions having been filed on April 15,
1983, denying plaintiff's motion and granting the defendant Secre-
tary’s motion for affirmance, and, after review of the Magistrate's
ruling, the plaintiff's objections thereto, and the relevant portions of
the file, the Honorable T.F. Gilroy Daly, Chief Judge, United States
District Court, having adopted, approved and ratified said ruling.
Itis ORDERED, ADJUDGED and DECREED that judgment
be and is hereby entered in favor of the defendamt and the
Secretary's decision is affirmed.
Dated at New Haven, Connecticut on the 6th day of May 1983.
SYLVESTER A. MARKOWSKI
CLERK, UNITED STATES
DISTRICT COURT
BY
DEPUTY IN CHARGE
:
APPENDIX Q
May 19, 1983. After reviewing plaintiff's motion for recon-
sideration, renewed review of the Magistrate's ruling, and the file in
this case, the Court adheres to its initial ruling, affirming the
Magistrate, and the motion for reconsideration is, accordingly,
denied.
T.F. GILROY DALY,
Ch. U.S.D.J.
APPENDIX R
DEPARTMENT OF
HEALTH, EDUCATION, AND WELFAR¢
SOCIAL SECURITY ADMINISTRATION
APPOINTMENT OF REPRESENTATIVE
| appoint Lynn Williams to act as my representative in connection
with my claim under Titles Il, XVI, or XVIII of the Social Security
Act based on the social security record of
Richard E. Williams
Social Security Number 047-28-0012
I authorize her to make or give any request or notice; present or
elicit evidence; obtain information; and receive any notice in
connection with my claim wholly in my stead.
225 Stony Creek Road,
Branford, CT.
DATE: October 20, 1978
89
ACCEPTANCE OF APPOINTMENT
I, Lynn Williams, hereby accept the above appointment. I certify
that I have not been suspended or prohibited from practice before
the Social Security Administration; that I am not, as an officer or
employee of the United States, disqualified from acting as the
claimant's representative; and that | will not charge or receive a fee
for the representation unless it has been authorized in accordance
with the laws and regulations referred to on the reverse side hereof
| am the wife of Richard E. Williams
25 Stony Creek Road
Branford, Connecticut
DATE: October 20, 1978
APPENDIX S
DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE
SOCIAL SECURITY ADMINISTRATION
APPOINTMENT OF REPRESENTATIVE
| appoint Robert M. Casale to act as my representative in
connection with my claiia under Titles Il, XVI, XVIII of the Social
Security Act and/or Title IV of the Federal Coal Mine Health and
Safety Act based on the social security record of
Richard E. Williams
Social Security Number 047-28-0012
90
I authorize my representative to make or give any request or
notice; present or elicit evidence; obtain information; and receive
any notice in connection with my claim wholly in my stead.
225 Stony Creek Road
Branford, CT 06405
DATE: September 11, 1980
ACCEPTANCE OF APPOINTMENT
I Robert M. Casale, hereby accept the above appointment. I
certify that I have not been suspended or prohibited from practice
before the Social Security Administration; that I am not, as an
officer or employee of the United States, disqualified from acting as
the claimant’s representative; and that I will not charge or receive a
fee for the representation unless it has been authorized in accordance
with the laws and regulations referred to on the reverse side hereof.
In the event that I decide not to charge or collect a fee for the
representation ! will notify the Social Security Administration.
I am attorney for Richard E. Williams
250 West Main Street
Branford, CT 06405
DATE: September 11, 1980
91
APPENDIX T
225 Stony Creek Road
Branford, CT 06405
June 8, 1983
U.S. Court of Appeals
U.S. Courthouse
Foley Square
New York, N.Y. 10007
Att: Ms. Valentine Certified Mail - PO3 3110313
Pro Se Law Clerk’s Office Returned Receipt Requested
Dear Ms. Valentine:
Re: Docket Number - N-79-338
Richard E. Williams
Vs.
Secretary of Health & Human Services
District - Connecticut
Judge - Honorable T.F. Gilroy Daly
Date Filed In District Court - September 24, 1979
Date Notice Of Appeal Filed - May 27, 1983
The undersigned hereby requests this honorable Court to
construe this letter as a motion for permission to allow counsel of
record, Robert M. Casale, to withdraw from this appeal, as counsel
of record, for the following reasons:
1. This appeal arises from an October 19, 1981 motion by the
undersigned to restore his case to the active docket, through his
lay representative, Lynn C. Williams, who is also wife of the
undersigned.
2. Pursuant to the May 31, 1983 Civil Appeal Pre-Argument
Statement wherein it was represented to this Court that the
undersigned would seek an affidavit from his counsel of record
-the undersigned, through his lay representative, did obtain such
affidavit by Attorney Casale dated June 6, 1983.
Att:
92
All actions from the date of October 19, 1981 to the date of May
31, 1983 were not Attorney Casale’s except for a Supplemental
Memorandum In Support Of Plaintiffs Motion for Summary
Judgment filed through Attorney Casale’s associate on Novem-
ber 12, 1982.
By the time the undersigned received the magistrate’s (Latimer,
M.) ruling dated April 15, 1983, Attorney Casale was engaged
in a criminal trial at the Superior Court in Milford, Connecticut
unit! June 3, 1983.
Since the undersigned intends to submit Attorney Casale’s June
6, 1983 affidavit, Attorney Casale should be allowed to withdraw
as the undersigned’s counsel of record in this judicial proceeding.
The undersigned’s appeal would be prejudiced if Attorney
Casale is not allowed to withdraw in this judicial proceeding
-since his affidavit and/or testimony are critical to the issues of
denial of minimum procedural due process hearing requirement
rights and deprivation of the undersigned’s constitutional rights
- which issues are intended to be raised on appeal.
June 8, 1983
U.S. Court of Appeais
U.S. Courthouse
Foley Square
New York, N.Y. 10007
Att: Ms. Valentine
Pro Se Law Clerk’s Office - 2 -
Docket Number - N-79-338
Ricahrd E. Williams
Vs.
Secretary of Health & Human Services
District - Connecticut
Judge - Honorable T.F. Gilroy Daly
Date Filed In District Court - 9/24/79
Date Notice Of Appeal Filed - 5/27/83
93
The undersigned intends to submit a brief, supporting affidavit
of his lay representative, his own affidavit and Attorney Casale’s
June 6, 1983 affidavit in due course.
Very truly vours,
RICHARD E. WILLIAMS,
Appellant
Pro Se
Certified Mail - PO3 3110313- RRR
CC: Linda K. Lager
Assistant United States Attorney
P.O. Box 1824
New Haven, Connecticut 06508-1824
CC: Robert M. Casale
Attorney at Law
250 West Main Street
Suite 16
Branford, Connecticut 06405
94
APPENDIX U
LAW OFFICES
CASALE & GONZALEZ
250 WEST MAIN STREET SUITE 16
BRANFORD, CONNECTICUT 06405
June 23, 1983
United States Court of Appeals
U.S. Courthouse
Foley Square
New York, New York 10007
RE: Richard Williams V. HEW
Dear Ms. Valentine:
Please be advised that I no longer represent Richard Williams.
It is my understanding that Mr. Williams intends to proceed on
appeal pro se. This letter is written at the request of Richard and
Lynn Williams.
Sincerely
Robert M. Casale
APPENDIX V
CONSTITUTIONAL PROVISIONS PERTINENT
TO THE CASE
United States Constitution, Amendment V:
Nor shall any person . . . be deprived of life, liberty, or
property without due process of law. . .
95
United States Constitution, Amendment IX:
The enumeration in the Constitution of certain rights shall
not be construed to deny or disparage others retained by the
people.
APPENDIX W
STATUTES/CODE OF FEDERAL REGULATIONS
PERTINENT TO CASE
Code of Federal Regulations
20 CFR §404.1546
explains a State agency staff physician must assess residual
functional capacity where it is required. This assessment is based
on all of the evidence provided by treating or examining
physicians, consultative physicians, or any other physicians
designated by the Secretary
20 CFR §416.918
explains that the Social Security Administration will consider
bias, prejudice partiality or lack of objectivity when a claimant's
consultative examining physician represented an interest adverse
to a claimant - such as representing the claimant’s employer in a
worker’s compensation case as was the situation with crucial
examining Dr. Poverman whom petitioner’s, then, counsel
strenuously objected to
Statutes, Title 5, U.S.C.A.
§554(d) (1) and §554(d) (2)
... Except to the extent required for the disposition of ex parte
matters as authorized by law, such an employee may not—
96
(1) consult a person or party on a fact in issue, un/ess on notice
and opportunity for all parties to participate; or
(2) be responsible to or subject to the supervision or direction of
an employee or agent engaged in the performance of investigativ=
or prosecuting functions for an agency
§557(d) (1) (C) (i), (ii) and (iii)
(d) (1) (C) a member of the body comprising the agency,
administrative iaw judge, or other employee who is or may
reasonably be expected to be involved in the decisional process
of such proceeding who receives, or who makes or knowlingly
causes to be made, a communication prohibited by this sub-
section shall place on the public record of the proceeding:
(i) all such written communications;
(ii) memoranda stating the substance of all such ora!
communications; and
(iii) all written responses, and memoranda stating the substance
of all oral responses, to the materials described in clauses
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