Petition for Writ of Certiorari — Hanes v. Heckler

84 - Office - Supreme Court, U

8 7 eprom out US

NO. 84-

MAY 26 1994

"ACEXANDER L. STEVAS

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

KENNETH D. HANES,

Plantiff-Petitioner

V.

MARGARET HECKLER, SECRETARY,

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Defendant-Respondent.

PETITION FOR LEAVE TO APPEAL FROM THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH

CIURUIT No. 82-2812

AMBROSE & CUSHING, P.C.,

Attorneys for Petitioner

7 South Dearborn Street

Chicago, Illinois 60603

(312) 726-1470

DEBORAH S. BENTON,

of Counsel

JOHN C. AMBROSE,

of Counsel

June 26, 1984

NO. 84-

IN THE

SUPREME COURT OF THE UNITED STATES

KENNETH D. HANES,

Plantiff-Petitioner

We

MARGARET HECKLER, SECRETARY,

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Defendant-Respondent.

PETITION FOR LEAVE TO APPEAL FROM THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH

CIURUIT No. 82-2812

AMBROSE & CUSHING, P.C.,

Attorneys for Petitioner

7 South Dearborn Street

Chicago, Illinois 60603

(312) 726-1470

DEBORAH S. BENTON,

of Counsel

June 26, 1984

1

ISSUE PRESENTED FOR REVIEW

WHETHER THE SECRETARY'S DECISION, THAT

PLAINTIFF-PETITIONER IS NOT DISABLED AS

DEFINED BY THE SOCIAL SECURITY ACT, IS

CONSISTENT WITH THE DECISIONS OF OTHER COURTS

IN THIS CIRCUIT AND OTHER CIRCUITS.

2

TABLE OF CONTENTS

Issues Presented for Review

Table of Contents

Table of Authorities

Jurisdictional Statement

Applicable Law

Statement of the Case

Argument

Conclusion

Appendix

Notice of Filing

Affadavit of Mailing

wre

DAOUSIU BWNe

3

TABLE OF AUTHORITIES

Heckler v. Campbell, 103 S.Ct. 1952 (1983)

Richardson v. Perales, 402 U.S. 389 (1971)

Dobrowolsky v. Califano, 606 F.2d 403 (3 Cir.

1979)

King v. Califano, 615 F.2d 1018 (4 Cir. 1980)

Lewis v. Weinberger, 541 F.2d 417 (2 Cir.

1976)

Marcus v. Califano, 615 F.2d 23 (2 Cir. 1979)

Rivera v. Schweiker, 717 F.2d 719 (2 Cir.

1983)

Stark v. Weinberger, 497 F.2d 1092 (7 Cir.

1974)

Coleman v. Heckler, 572 F.Supp. 1089

(D.C.Colo. 1983)

Lee v. Heckler, 568 F.Supp. 456 (N.D.Ind.

1983)

Steffanick v. Heckler, 570 F.Supp. 420 (D.Md.

1983)

Tyler v. Weinberger, 409 F.Supp. 776 (E.D.Va.

1976)

Van Huss v. Heckler, 572 F.Supp. 160 (W.D.Va.

1983)

Szulyk v. Leckler, No. 83 C 2810

>

4

JURISDICTIONAL STATEMENT

Jurisdiction for this appeal is invoked

pursuant to Title 28 U.S.C. Section 2101.

Summary judgment was entered in favor of

Defendant on October 21, 1982. On appeal to

the United States Court of Appeals for the

Seventh Circuit, the court affirmed, on

January 19, 1984. A Petition for Rehearing

was filed, and subsequently denied by that

court on February 28, 1984.

APPLICABLE LAW

The applicables statutes are 42 U.S.C.

Sections 416(i) and 423. They are too

lengthy to be reporter here, and pursuant to

Supreme Court Rule 21(f) are thus included in

the Appendix attached.

5

STATEMENT OF THE CASE

Plaintiff-Petitioner Kenneth D. Hanes filed

an action in the United States District Court

for the Northern District of Illinois,

Eastern Division, seeking judicial review of

the final decision of Defendant, Secretary of

Health and Human Services, denying

Plaintiff's application for disability

insurance benefits, as provided for under

Sections 216(i) and 223 of the Social

Security Act. 42 U.S.C. Sections 416(i) and

423. Plaintiff's application was filed on

May 14, 1980, and denied by the Social

Security Administration. (Tr. pe. 68-73).

Subsequently, a hearing was held before an

Administrative Law Judge ("ALJ"), who

decided, on June 5, 1981, that Plaintiff was

not under a disability. (Tr. p. 16). MThis

decision became final on August 12, 1981,

when approved by the Appeals Council. (Tr. p.

3). In the District Court, Defendant's

motion for summary judgment was allowed on

October 21, 1982. Plaintiff's basis for

Federal jurisdiction was based on the

provisions of 42 U.S.C. Section 405(g).

The following evidence was elicited at the

hearing before the ALJ. Kenneth Hanes, a 34-

year old former sheet metal worker, with a

high-school education, testified that he

injured his back in May of 1979 while

unloading some steel siding at his job. Asa

result of his injury--a fracture at L2--he

was hospitalized four times and has been

unable to return to his work. (Tr. p. 105-

14C). Up until that time, he had an

excellent work record, except for six months

following a work injury when he broke his

neck. Since his back injury in May, he has

been forced to severely restrict his

activities. Due to an incessant pain in his

back, he is precluded from bending, stooping,

climbing or lifting. In addition, he is

6

occasionally confined to bed for three or

four days at a time. (Tr. p. 41-47). He

sometimes wears a back brace, and frequently

must rest his back for at least 45 minutes.

His treating physician, an orthopedic

surgeon, found him unable to work at all,

based on objective medical findings. The ALJ

concluded that Plaintiff could not return to

his former employment, but could engage in

sedentary work, thereby denying him

disability benefits.

7

ARGUMENT

Kenneth D. Hanes appealed to the United

States Court of Appeals for the Seventh

Circuit following entry of summary judgment

against him in an action brought pursuant to

42 U.S.C. section 405(g) for review of a

decision of the Secretary denying his claim

for Social Security disability benefits. On

appeal, Hanes contended that the Secretary's

decision was not supported by substantial

evidence and that in determining his

disability status the Secretary improperly

applied the law regarding subjective pain and

use of objective medical evidence.

Plaintiff-Petitioner Kenneth Hanes

respectfully submits that review of the

decision of the United States Court of

Appeals' decision, affirming the District

Court decision, is warranted by the Supreme

Court, based on the inconsistent conclusions

of the Seventh Circuit Court, compared with

similarily situated claimants before other

courts. The court's decision in this case is

patently in conflict with the decisions of

similar cases in this and other circuits.

In this case, once it was established that

Hanes could not continue his past employment

as a sheet metal worker, the burden shifted

to the Secretary to prove with substantial

evidence that he could still engage in other

kinds of work available in the national

economy. In meeting that burden, the

Secretary must make two determinations. "She

must assess each claimant's individual

abilities and then determine whether jobs

exist that a person having the claimant's

qualifications could perform. The first

inquiry involves a determination of historic

facts, and the regulations properly require

the Secretary to make these findings on the

basis of evidence adduced at a hearing."

8

Heckler v. Campbell, 103 S.Ct. 1952, 1957

(1983).

Plaintiff-Petitioner submits that the

medical evidence presented at his hearing

before the ALJ, and his complaints of pain,

do not support the Secretary's determination

that Plaintiff failed to establish a

disability sufficient to entitle him to

benefits. The ALJ specifically found that

"claimant's allegation of constant pain so

severe as to be disabling" was less than

credible. In addition, the ALJ concluded

that claimant could perform sedentary l#vel

work, and that this was not significantly

limited by his alleged pain and discomfort.

In its opinion, page 5, the District Court

properly recognized that Plaintiff's

complaints of pain, if believed, would

Support a finding of disability. Stark v.

Weinberger, 497 F.2d 1092 (7 Cir. 1974);

Marcus v. Califano, 615 F.2d 23 (2 Cir.

1979). However, the court then asserted that

the ALJ found Hanes' allegations of pain

"less than credible" and thus the court would

not disturb that assessment by the ALJ. This

reasoning by the court is in direct conflict

with similar cases in this and other circuits

and demands review.

For instance, in the recent case of Szulyk

v. Heckler, No. 83 C 2810 (U.S.Dist. Ct.,

N.D. Ill. 1984), claimant's former employment

was in a bench assembly position. However,

Plaintiff alleged that pain in her neck,

shoulder, and back prevented her from

engaging in any substantial gainful activity.

The ALJ determined that her complaints of

pain were simply “not entirely credible." In

its opinion, the District Court stated that

such a conclusion was not supported by the

evidence. "From the decision of the ALJ, one

might conclude that reports of pain are

9

rarely found in the record. However, upon

close examination, it is clear that

complaints and extensive treatment of pain

make up a substanti2=1 portion of Plaintiff's

medical history." (p. 5). The court went on

to conclude, “While the ALJ's observations of

Plaintiff are certainly relevant and

reliable, in light of the overwhelming

evidence to the contrary contained in the

record, to simply declare that Plaintiff's

complaints of pain were “not entirely

credible", without further explanation,

constitutes error on the part of the ALJ."

(p. 6).

In this case, Hanes' complaints of pain are

amply supported by the evidence elicited at

his hearing and contained in the record.

Both the ALJ and the District Court noted,

but then proceeded to ignore, Plaintiff's

testimony regarding his daily activities.

(Op., p. 2-3, Admin. record at 10). If one

assumes that the ALJ disbelieved Hanes'

testimony, then this might lead to the

anomalous conclusion that the more Plaintiff

is suffering, the harder it would be for him

to establish the believability of his claim.

Moreover, the ALJ failed to explain what he

relied on in dismissing Plaintiff's

complaints as not credible. He completely

disregarded the treating physicians' clinical

findings of pain and the fracture at L2,

which existed in 1979 and 1980. It appears

that he evaluated Hanes' credibility solely

on the basis of his personal observations at

the hearing. Clearly, the ability to sit

one-and-a-half hours through a hearing, with

occasional repositioning, is not substantial

evidence justifying the ALJ's findings on

pain. The court below overlooked the basic

premise that credibility determinations by

the ALJ are not binding, and in this instance

are unsupported by the evidence as a whole.

10

It is well established in various circuits

that it is impermissible for an ALJ to make a

determination of disability on the basis of a

"sit and squirm" index, based on the ALJ's

personal observations of the claimant at the

hearing. Tyler v. Weinberger, 409 F.Supp.

776 (E.D. Va. 1976); Van Huss v. Heckler, 572

F.Supp. 160 (W.D.Va. 1983); Lee v. Heckler,

568 F.Supp. 456 (N.D.Ind. 1983); Steffanick

v. Heckler, 570 F.Supp. 420 (D.Md. i983).

Since Hanes' pain had a specific physical

cause--a fracture at L2--and this was

corroborated by all his physicians and X-

rays, as conceded by the court in its

opinion, page 3, then the Secretary should

have considered the effect of pain on Hanes'

ability to function, instead of flatly

rejecting it. Where the Secretary's findings

on pain are supported only by the ALJ's

observations and personal opinions, this is

not substantial evidence sufficient to deny

Claimant benefits. Van Huss, 572 F.Supp. at

167.

In Steffanick v. Heckler, supra, plaintiff

appealed from the Secretary's decision

denying him disability benefits. At the

administrative hearing, he testified that he

had continuous pains in his neck, back and

arm which prevented him from working. Like

Hanes, the plaintiff frequently needed to

rest between periods of standing or sitting,

and could only walk a short distance.

Nevertheless, the ALJ in Steffanick

similarily concluded that Plaintiff was

capable of sedentary work activity, finding

his allegations of pain incredible because of

the medical evidence and plaintiff's

appearance at the hearing. 570 F.Supp. at

426.

Reviewing the record, the Steffanick court

acknowledged that an ALJ properly evaluates a

Claimant's subjective complaints and weighs

ll

his credibility. 570 F.Supp. at 426.

However, “an ALJ's observation that a

claimant did not appear to be in pain while

testifying is entitled to ‘little or no

weight, and standing alone, cannot be

substantial evidence in support of the

Secretary's decision.'" 570 F.Supp. at 426;

Lewis v. Weinberger, 541 F.2d 417, 421 (2

Cir. 1976). The court, therefore, concluded

that the ALJ erred since there was direct

medical evidence consistent with plaintiff's

subjective complaints.

Similarily, all of Hanes' physicians noted

back impairments of a significant nature.

These impairments substantiated the existence

of subjective pain. Furthermore, Hanes had

an excellent work record up until his injury

in 1979. According to the court in

Steffanick, "When, as here, a claimant has a

substantial work record, his testimony as to

pain should not be disregarded lightly." 570

F.Supp. at 427. “A claimant with a good work

record is entitled to substantial credibility

when claiming an inability to work because of

a disability." Rivera v. Schweiker, 717 F.2d

719 (2 Cir. 1983).

In Rivera, the ALJ determined that

pain, and found his complaints not credible.

The court asserted, "[A]lthough it is clearly

permissible for an administrative law judge

to evaluate the credibility of an

individual's allegations of pain, this

individual judgment should be arrived at in

light of all the evidence regarding the

extent of pain...It is clear to us that the

ALJ herein did not follow the standard. In

assessing Rivera's allegations of pain, the

ALJ placed principal, if not sole, reliance

upon his observations at the hearing. The

ALJ's observations, under these

circumstances, are entitled to limited

12

weight." 717 F.2d at 724.

In the same respect, the ALJ made a blanket

statement that Hanes' complaints were less

than credible, and this conclusion appeared

to result solely from his observation of

Hanes at the hearing. The record in this

case does not indicate that pain was properly

weighed; the ALJ clearly ignored the rule

that a claimant's subjective evidence of

pain, when accompanied by objective medical

evidence, as exists here, is entitled to

great weight. Dobrowolsky v. Califano, 606

F.2d 403, 409 (3 Cir. 1979). Upon examining

the court's opinion on pain in this case,

page 6, it is evident that the court

erroneously concluded that the ALJ's

credibility determination was binding,

despite the fact it was made without any

basis in the record, and apparently based on

his observations alone--a “sit and squirm"

index.

In Coleman v. Heckler, 572 F.Supp. 1089

(D.C.Coio. 159863), the ALJ similariiy

determined that claimant's allegations of

pain were less than fully credible. fThat

court stated, "While the credibility of a

claimant's subjective allegations of pain is

to be resolved by the ALJ, there must be some

factual basis in the record supporting the

ALJ's finding. The ALJ offered no

explanation for his disbelief of the

plaintiff's sworn testimony. 42 U.S.C. 405

(b) has been interpreted as requiring the

Secretary to make ‘full and detailed findings

in support of all his conclusions.'" 572

F.Supp. at 1091. In this case, the ALJ

failed to provide a basis for his finding

that Hanes was not crevible, and the court

below should have followed the reasoning in

Coleman, as well as the statute, and denied

Defendant Secretary's motion for summary

judgment.

13

Plaintiff-Petitioner respectfully submits

that review of this case is warranted based

on the inconsistent conclusion reached by tiie

Seventh Circuit courts in comparison with

those of other circuits regarding subjective

pain. In addition, Petitioner contends that

the court's decision regarding substantial

evidence is misplaced and contradicts the

rules set forth in other circuits.

It is well settled that the decision of the

Secretary must be supported by substantial

evidence. 42 U.S.C. 405(g). Substantial

evidence has been defined as "such relevant

evidence as a reasonable mind might accept as

adequate to support a conclusion."

Richardson v. Perales, 402 U.S. 389, 401

(1971). It must be noted that the intent of

the Social Security Act is inclusion, rather

than exclusion, so that the Act should be

liberally applied. Rivera, 717 F.2d at 723.

The Fourth Circuit has asserted that "even

if legitimate reasons exist for rejecting or

discounting certain evidence, the Secretary

cannot do so for no reason or for the wrong

reason." King v. Califano, 615 F.2d 1018,

1020 (4 Cir. 1980). In this case, the ALJ

disregarded the findings of Dr. Farah and Dr.

Groves, Hanes' treating physicians, despite

the fact that their opinions were supported

by clinical findings and other evidence, as

required under 20 C.F.R. section 404.1526.

In its opinion, the District Court stated

that the ALJ had given less weight to the

reports of two doctors who had examined Hanes

only once. Furthermore, the Court asserted

that the doctors' opinions differed radically

as to Hanes' abiiity to work. Yet, all of

the doctors did agree on the existence of a

back impairment, even if their conclusions on

the ultimate question for the Secretary

differed.

oe

14

It is well established that the opinion of

a treating physician is entitled to special

consideration and is not to be disregarded

lightly in the absence of competent

conflicting evidence. Steffanick, 570

F.Supp. at 425. It appears the ALJ and the

Court placed undue emphasis on the difference

in two work assessments rendered by the same

treating physician within a six-month period.

"The expert opinion of a treating physician

on the subject of disability is binding on

the Secretary unless substantial evidence is

presented to the contrary." Rivera, 717 F.2d

at 723. One of Hanes' treating physicians--

an orthopedic surgeon--concluded that Hanes

was totally incapable of working. Another

doctor also reached this same conclusion.

There wasn't any other substantial evidence

presented to the contrary, apart from a

report by a doctor based on a single

examination of Hanes. This cannot be said to

be the "substantial evidence" contemplated by

the court in Steffanick and Rivera. In sum,

the medical evidence does not provide

"substantial evidence” contradictory to the

treating physician's conlclusion of

disability. There is clearly a significant

circuit conflict on this point, since the

Seventh Circuit took the position here that

the ALJ could reject the opinion of Hanes'

treating physician and substitute his own

opinion, or that of a physician who examined

Hanes once.

15

CONCLUSION

WHEREFORE, Plaintiff-Petitioner, KENNETH D.

HANES, respectfully submits that a review of

the decision by the United States Court of

Appeals for the Seventh Circuit is warranted

by this court, and prays that his Petition

for Leave to Appeal be granted.

Respectfully submitted,

AMBROSE & CUSHING, P.C.

Attorneys for Petitioner

AMBROSE & CUSHING, P.C.

7 South Dearborn Street

Suite 918

Chicago, Illinois 60603

(312) 726-1470

Deborah S. Benton, of counsel

SSSSSSES SSeS TES

16

APPENDIX

TABLE OF CONTENTS

Memorandum and Order (U.S. District Court)

Order (U.S. Court of Appeals)

Notice of Appeal (U.S. Court of Appeals

7th Circuit)

Order (U.S. Court of Appeals)

42 U.S.C. Section 416(i)

42 U.S.C. Section 423

17

24

27

30

31

33

17

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KENNETH HANES,

Plaintiff,

Civil Action

No. 81 C 5686

Ve

RICHARD S. SCHWEIKER,

Secretary of Health

and Human Services,

mm ee ee ee eee ee ee ee

Defendant.

MEMORANDUM AND ORDER

This cause is before the court on

defendant's motion for summary judgment. For

the reasons hereinafter stated, the

defendant's motion will be granted and the

cause dismissed.

The plaintiff Kenneth D. Hanes filed this

action to obtain judicial review of the final

decision of the defendant Secretary of Health

and Human Services denying plaintiff's

application for disability insurance benefits

as provided by Sections 216(i) and 223 of the

Social Security Act. 42 U.S.C. 416(i), 423

(1976).

Plaintiff's application was filed on May

14, 1980, alleging that he became unable to

work May 25, 1979, at age 32, following a

back injury. His application was initially

denied, and on reconsideration, the Office of

Disapility Operations of the Social Security

Administration found that he was not

disabled. Subsequently, a hearing was held

before an administrative law judge (ALJ), who

decided, on June 5, 1981, that plaintiff was

not under a disability. The ALJ's decision

ae@eQ@GQ@GEEEEBEBEE EE & &

18

became final when the Appeals Council

approved that decision on August 12, 1981.

Under the Social Security Act, review of

the Secretary's decision is limited in scope

to evidence within the administrative record,

and the Secretary's findings must be upheld

if supported by substantial evidence.

42.U.S.C. 405(g). The record includes the

transcript of the hearing before the ALJ as

well as the documentary evidence (including

medical records) which was considered in the

ALJ's decision. The evidence will be

summarized briefly here.

THE EVIDENCE

At the hearing before the ALJ, Mr. Hanes, a

34-year old former sheet metal worker

testified that his back was injured as he was

unloading some steel siding. He was

hospitalized four times as a result of this

injury, and testified that his subsequent

activities have been severely limited. A

fair summary of his testimony appears in the

ALJ's decision:

He testified that he was unable to sit

for long; he could not bend, stoop or

Climb; he had constant pain in his lower

back and down his right leg; he had a bad

attack of back pain at least once a week,

and sometimes could not get out of bed.

He said that he did no lifting, and could

not bend because it strained his back.

He wore a back brace, but only three or

four days during a month. He could move

around for about an hour but after that

he had to lay down and rest his back for

at least 45 minutes. He had estimated he

could walk only about one block. The

pain in his back and leg were constant

and that was why he could not sit for

long without having to get up and change

19

position.

Administrative Record at 10.

Also in the record were reports from

several doctors who had examined Mr. Hanes

including his treating physicians, a company

doctor who had examined him in connection

with a worker's compensation claim, and a

doctor who examined him in preparation for

his hearing. The various doctor's reports

were fairly consistent in describing

plaintiff's physical condition, but there was

considerable variation in their assessments

of his physical capacity. The "Physical

Capacities Evaluation" is an agency form on

which physicians are asked to estimate the

applicant's work capabilities "based on

objective findings only, not on the

applicant's opinions or subjective

complaints." Three evaluations in the month

of June found Mr. Hanes objectively capable

of handling sedentary, lignt, and medium

level work, respectively. Mr. Hanes’

orthopedic surgeon, who had found him capable

of medium level work in June, found him

completely unable to work in October.

However, the surgeon's description of Mr.

Hanes' condition showed no essential change

from the earlier examination.

The ALJ also considered the hearing

testimony of a vocational expert as to the

availability of employment for a man with Mr.

Hanes' skills based on various hypothetical

exertional capabilities. The expert was

first asked to assume that Mr. Hanes was

capable of doing sedentary work, but could

not bend, climb, stoop, or use foot controls,

and he estimated that there were around 2000

jobs in the Chicago area that Mr. Hanes could

do. To a second hypothetical, in which it

was posited that Mr. Hanes would have to

stand for 15 minutes after sitting for an

20

hour, the expert estimated that this would

eliminate about half the jobs, leaving

approximately one thousand possible jobs.

After considering the evidence, the ALJ

issued a number of findings. Those relevant

to this opinion are:

3. Based on the hearing appearance and

the objective medical evidence of

record the claimant's allegation of

constant pain so severs as to be

disabling is less than credible.

4. The clamant has the residual

functional capacity to perform

sedentary substantial gainful

activity, but cannot climb, bend,

stoop or operate foot controls.

5. The claimant is unable to perform his

past relevant work as a sheet metal

worker.

6. Considering the exertional and non-

exertional impairments, the claimant

has the residual functional capacity

to perform substantial sedentary

gainful activity.

7. The level of work the claimant can

perform is not significantly limited

by the pain and discomfort he

alleges.

Administrative Record at 15.

DISCUSSION

Under the Social Security Act, a person is

"disabled" if he is unable "to engage in any

substantial gainful activity by reason of any

medically determinable physical or mental

impairment which can be expected to result in

21

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).

The ALJ found that plaintiff was not under a

disability. Defendants correctly maintain

that the decision must be upheld if supported

by substantial evidence in the record as a

whole. Plaintiff claims that the ALJ failed

to consider his subjective pain in

determining that he was capable of performing

sedentary work. He specifically complains

that his pain was not mentioned as a factor

in the hypothetical questions posed to the

vocation expert by the ALJ.

SUBJECTIVE PAIN

Subjective pain may serve as a basis for

establishing disability, even if

unaccompanied by positive clinical findings

or other objective evidence. Marcus v.

Califano, 615 F.2d 23 (2d Cir. 1979), Stark

v. Weinberger, 497 F.2d 1092 (7th Cir. 1974).

Plantiff's testimony as to his pain was fully

developed at the hearing and that testimony,

if believed, would support a finding of

disability. See Marcus v. Califano, supra.

If the ALJ had refused to consider the issue

of pain as relevant to a disabiltiy

determination, the court would clearly be

required to remand this matter for a further

factual determination as to the existence of

pain, and its effect if any on plaintiff's

ability to engage in substantial gainful

activity. See, e.g., Garcia v. Califano, 463

F.Supp. 1098 (N.D. IlI. 1979). However, the

ALJ here considered the plaintiff's

allegation of disabling pain and found the

"less than credible.”

Credibility decisions are properly made by

the ALJ who had the opportunity to observe

and question the witness, and not by a

reviewing court faced with a bare written

22

record. Marcus v. Califano, supra, Moon v.

Celebrezze, 340 F.2d 926 (7th Cir. 1965).

The ALJ specifically rejected plaintiff's

claim of disabling pain and this court has no

basis for a differing assessment. Having

found plaintiff's assertions of pain not

credible, the ALJ was plainly not required to

pose severe pain as a factor in framing

hypothetical questions for the vocational

expert.

SUBSTANTIAL EVIDENCE

The remaining question is whether the ALJ's

findings that the plaintiff was not disabled,

and that he was capable of substantial

gainful activity at a sedentary level were

supported by substantial evidence in the

record. These findings are conclusive if

they are not supported by such relevant

evidence as a resonable mind might accept as

adequate to support the conclusion Richardson

v. Perales, 402 U.S. 389, 401 (1971); McNeil

v. Califano, 614 F.2d 142, 145 (7th Cir.

1980); Allen v. Weinberger, 552 F.2d 781, 784

(7th Cir. 1977),

The ALJ's decision was apparently based on

the objective medical evidence and on the

several Physical Capacities Evaluations in

the record. Less weight was given to the

reports of the two doctors whose opinions

were based on a single examination. The

doctors' opinions as to plaintiff's physical

capacity differed radically based on the same

objective evidence. As noted above, three

examinations in the same month resulted in

very different physical capacities

evaluations. Only two doctors found Mr.

Hanes incapable of working, however. One of

these had examined him only once in

preparation for his disability hearing, and

this report was given less weight by the ALJ.

The other was plaintiff;s orthopedic surgeon,

23

and as the ALJ noted, this assessment

differed markedly form an assessment made 6

months earlier by the same physicain with no

intervening change in plaintiff's physical

condition to explain the different opinion.

The medical evidence offers substantial

support for the ALJ's finding that plaintiff

was capable of sedentary work.

Finally, the vocational expert testified that

substantial employment was available in the

area to one of the plaintiff's skills and

capabiltities. The testimony was

uncontroverted, and plaintiff's attorney did

not object to the expert's qualifications.

CONCLUSION

A careful review of the administrative record

shows that the findings of the ALJ and the

Secretary are supported by substantial

evidence. Accordingly, the decision of the

Secretary must be, and is affirmed.

SENIOR JUDGE

October 21, 1982.

24

Unpublished Per Curiam Order

JUDGMENT ~- WITHOUT ORAL ARGUMENT

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

10

Chicago, Illinois 60604

January 19, 1984

Before

Hon. WALTER J. CUMMINGS, Chief Judge

Hor WILBUR F. PELL, JR., Circuit Judge

Ho: WILLIAM J. BAUER, Circuit Judge

KENNET:. D. HANES )Appeal from the United

)States District Court

Plaintiff-Appellant,)for the Northern

)District of Illinois,

No. 82-2812 vs. )Eastern Division.

) No. 81 C 5686

RICHARD SCHWEIKER, ) Judge Edwin Robson

Secretary of Health )

and Human Services, )

Defandant-Appellee. )

This cause came before the Court for

decision on the record from the United States

District Court for the Northern District of

Illinois, Eastern Division.

On consideration whereof, IT IS ORDERED AND

ADJUDGED by this Court that the judgment of

said District Court in this cause appealed

brom be, and the same is hereby, AFFIRMED,

with costs, in accordance with the order of

this Court entered this date.

| |

25

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

(SUBMITTED NOVEMBER 1, 1983)*

January 19, 1984.

Before

Hon. WALTER J. CUMMINGS, Chief Judge

Hon. WILBUR F. PELL, JR., Circuit Judge

Hon. WILLIAM J. BAUER, Circuit Judge

KENNETH D. HANES )Appeal from the United

)States District Court

Plaintiff-Appellant,)for the Northern

)District of Illinois,

No. 82-2812 vs. )Eastern Division.

) No. 81 C 5686

RICHARD SCHWEIKER, ) Edwin Robson, Judge.

Secretary of Health )

and Human Services, )

Defandant-Appellee. )

ORDER

Plaintiff-Appellant Kenneth Hanes

challenges the decision of the Secretary of

Health and Human Services that he is not

disabled. We have reviewed the record and

carefully considered the briefs of counsel.

We concur in the analysis of the district

court and adopt its opinion (attached as an

appendix) as the order of this court.

AFFIRMED

*After preliminary examination of the briefs,

the court notified the parties that it had

tentatively concluded that oral argument

would not be helpful to the court in this

26

case. The notice provided that any party

might file a "Statement as to Need of Oral

Argument.” See Rule 34(a), Fed. R. App. P.;

Circuit Rule 14(f). No such statement having

been filed, the appeal has been submitted on

the briefs and record.

27

APPEAL TO THE U.S. COURTS OF APPEALS

FOR THE SEVENTH CIRCUIT

FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KENNETH HANES,

vs. NO. 81 C 5686

)

)

Plaintiff-Appellant,)

)

)

)

RICHARD SCHWEIKER, ) The Honorable

Secretary of Health ) Edwin Robson,

and Human Services ) Judge Presiding.

)

Defendant-Appellee. )

NOTICE OF FILING NOTICE OF APPEAL

TO: Mr. Michael S. O'Connell

Asst. U.S. Attorney

219 South Dearborn Street

Chicago, Illinois 60603

NOTICE IS HEREBY SENT to you this 8th day

of November, 1982, that I filed a Notice of

Appeal on November 8th, 1982, copy attached,

on behalf of Plaintiff-Appellant in this case

no. 81 C 5686.

AMBROSE & CUSHING, P.C.

STATE OF ILLINOIS )

) SS:

COUNTY OF COOK )

I, JOHN C. AMBROSE, being first duly sworn

on oath, deposes and says that a copy of the

attached Notice of Appeal and Notice of

28

Filing Notice of Appeal was served upon

Michael S. O'Connell by mailing a copy of

same to him at the above listed address this

8th day of November, 1982.

AMBROSE & CUSHING, P.C.

Attorneys for Plaintiff

7 South Dearborn Street JOHN C. AMBROSE

Chicago, Illinois 60603

726-1470

29

APPEAL TO THE U.S. COURTS OF APPEALS

FOR THE SEVENTH CIRCUIT

FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KENNETH HANES,

vs. NO. 81 C 5686

)

)

Plaintiff-Appellant,)

)

)

)

RICHARD SCHWEIKER, ) The Honorable

Secretary of Health ) Edwin Robson,

and Human Services ) Judge Presiding.

)

)

Defendant-Appellee.

NOTICE OF APPEAL

The Plaintiff-Appeliant, KENNETH HANES, by

his Attorneys, AMBROSE & CUSHING, P.C.,

appeals to the U.S. Courts of Appeals For the

Seventh Circuit from the Memorandum Opinion

and Order granting Defendant, RICHARD

SCHWEIKER, Secretary of Health and Human

Services Motion for Summary Judgment entered

on October 21, 1982.

By: John C. Ambrose

AMBROSE & CUSHING, P.C.

AMBROSE & CUSHING, P.C.

Attorneys for Plaintiff

7 South Dearborn Street

Chicago, Illinois 60603

726-1470

30

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

February 28, 1984.

Before

Hon. WALTER J. CUMMINGS, Chief Judge

Hon. WILBUR F. PELL, JR., Circuit Judge

Hon. WILLIAM J. BAUER, Circuit Judge

KENNETH D. HANES )Appeal from the United

)States District Court

Plaintiff-Appellant,)for the Northern

)District of Illinois,

No. 82-2812 vs. )Eastern Division.

) No. 81 C 5686

RICHARD SCHWEIKER, ) Judge Edwin Robson

Secretary of Health )

and Human Services, )

Defandant-Appellee. )

On consideration of the petition for

rehearing filed in the above-entitled cause

by Kenneth Hanes, plantiff-appellant, all of

the judges on the original panel have voted

to deny a rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition

for rehearing be, and the sa..e is hereby,

DENIED.

31

42 uscS 416 Social Security Act

(i) Disability--Period of disability. Except

for purposes of sections 202(d), 202(e),

202(f£), 223, and 225 (42 USCS Section 402(d),

(e), (£), 423, 425), the term “disability”

means (A) 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 has lasted or can be expected to

last for a continuous period of not less

than 12 months, or (B) blindness; and the

term "blindness" means central visual acuity

of 20/200 or less in the better eye with the

use of a correcting lens. An eye which is

accompanied by a limitation in the fields of

vision such that the widest diameter of the

visual field subtends an angle no greater

than 20 degrees shall be considered for

purposes of this paragraph as having a

central visual acuity of 20/200 or less. The

provisions of paragraphs (2)(A), (3), (4),

and (5) of section 223(d) (42 USCS section

423(d)(2) (A), (3)-(5)) shall be applied for

purposes of determining whether an individual

is under a disability within the meaning of

the first sentence of this paragraph in the

same manner as they are applied for purposes

of paragraph (1) of such section. Nothing in

this title shall be construed as authorizing

the Secretary or any other officer or

employee of the United States to interfere in

any way with the practice of medicine or with

relationships between practitioners of

medicine and their patients, or to exercise

any supervision or control over the

administration or operation of any hospital.

(2)(A) The term “vneriod of Disability"

means a continuous period (beginning and

ending as hereinafter provided in the

subsection) during which an individual

was under a disability (as definded in

paragraph (1)), but only if such period

32

is of not less than five full calendar

months' duration or such individual was

entitled to benefits under section 223

(42 USCS section 423) for one or more

months in such period.

(B) No period of disability shall begin

as to any individual unless such

individual files an application for

disability determination with respect to

such period; and no such period shall

begin as to any individual after such

individual attains the age of 65. In the

case of a deceased individual, the

requirement of an application under the

preceding sentence may be satisfied by an

application for a disability

determination filed with respect to such

individual within 3 months after the

period in which he died.

(C) A period of disability shall begin--

(i) on the day the disability began,

but only if the individual satisfies

the requirements of paragraph(3) on

such day; or

(ii) if such individual does not

satisfy the requirements of paragraph

(3)on such day, then on the first day

of the first quarter. thereafter in

which he satisfies such requirements.

33

INSURANCE BENEFITS 42 USCS 423

423. DISABILITY INSURANCE BENEFIT PAYMENTS

(a) Disability insurance benefits.

(1) Every individual who--

(A) is insured for disability insurance

benefits (as determined under subsection

(c)(1)),

(B) has not attained the age of sixty-five,

(C) has filed application for disability

insurance benefits, and

(D) is under a disability (as defined in

subsection (d)),

shall be entitled to a disability insurance

benefit (i) for each month beginning with the

first month after his waiting period (as

defined in subsection (c)(2)) in which he

becomes so entitled to such insurance

benefits, or (ii) for each month beginning

with the first month during all of which he

is under a disability and in which he becomes

so entitled to such insurance benefits, but

only if he was entitled to disability

insurance benefits which terminated, or had a

period of disability (as defined in section

216(i) (42 USCS Section 416(i))) which

ceased, within the 60-month period preceding

the first month in which he is under such

disability, and ending with the month

preceding whichever of the following months

is the earliest: the month in which he dies,

the month in which he attains age 65, or the

third month following the month in which his

disability ceases. No payment under this

paragraph may be made to an individual who

would not meet the definition of disability

in subsection ({d) except for paragraph (1) (B)

thereof for any month in which he engages in

substantial gainful activity, and no payment

may be made for such month under subsection

(b), (c), or (da) of section 202 (42 USCS

Section 402(b), (c), or (d)) to any person on

the basis of the wages and self-employment

34

income of such individual. In the case of a

deceased individual, the requirement of

subparagraph (C) may be satisfied by an

application for benefits filed with respect

to such individual within 3 months after the

month in which he died.

(d) Definition of disability.

(1) The term “disability” means--

(A) 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; or

(B) in the case of an individual who has

attained the age of 55 and is blind (within

the meaning of "blindness" as defined in

section 216(1i)(1) (42 USCS Section

416(i)(1))), inability by reason of such

blindness to engage in substantial gainful

activity requiring skills or abilities

comparable to those of any gainful activity

in which he has previously engaged with

some regularity and over a substantial

period of time.

(2) For purposes of paragraph (1) (A)--

(A) an individual (except a widow, surving

divorced wife, or widower for purposes of

section 202(e) or (f£) (42 USCS Section

402(e) or (f))) shall be determined to be

under a disability only if his physical or

mental impairment or impairments are of

such severity that he is not only unable to

do his previous work but cannot,

considering his age, education, and work

experience, engage in any other kind of

substantial gainful work which exists in

the national economy, regardless of whether

such work exists in the immediate area in

which he lives, or whether a specific job

vacancy exists for him, or whether he would

35

be hired if he applied for work. For

purposes of the preceding sentence (with

respect to any individual), “work which

exists in the national economy” means work

which exists in significant numbers either

in the region where such individual lives

or in several regions of the country.

(B) A widow, surving divorced wife, or

widower shall not be determined to be under

a disability (for purposes od awxrion

202(e) or (£) ((42 USCS Section 402(e) or

(£))) unless his or her physical or mental

impairment or impairments are of a level of

severity which under regulations prescribed

by the Secretary is deemed to be sufficient

to preclude an individua] from engaging in

any gainful activity.

(3) For purposes of this subsection, a

"physical or mental impairment" is an

impairment that results from anatomical,

physiological, or spychological

abnormalities which are demonstrable by

medically acceptable clinical and

laboratory diagnostic techniques.

(4) The secretary shall by regulation

prescribe the criteria for determining when

services performed or earnings derived from

services demonstrate an individuals'

ability to engage in substantial gainful

activity. Notwithstanding the provisions

of paragraph (2), an individual whose

services or earnings meet such criteria

shall, except for purposes of section

222(c) (42 USCS Section 222(c)), be found

not to be disabled.

(5) An individual shall not be considered to

be under a disability unless he furnishes

such medical and other evidence of the

existence thereof as the Secretary may

require.

36

NO. 84-

IN THE

SUPREME COURT OF THE UNITED STATES

KENNETH D. HANES,

Plantiff-Petitioner

V.

MARGARET HECKLER, SECRETARY,

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Defendant-Respondent.

NOTICE OF FILING

Mr. Michael S. O'Connell

Assistant U.S. Attorney

219 South Dearborn Street

Chicago, Illinois 60603

Office of the Solicitor General

U.S. Department of stice

Main Justice Building

Washington, D.C. 20530

PLEASE TAKF NOTICE that on the 25th day of

May, 1984, I filed with the Clerk of the

United States Supreme court for presentation

to

the Judges the Petition for Writ of

Certiorari on behalf of Plaintiff-Petitioner,

KENNETH HANES.

JOHN C. AMBROSE

AMBROSE & CUSHING, P.C.

Attorneys for Plaintiff

‘ South Dearborn Street

Chicago, Illinois 60603

(312) 726-1470

37

STATE OF ILLINOIS )

) SS:

COUNTY OF COOK )

AFFIDAVIT OF MAILING

I, JOHN C. AMBROSE, after first being duly

sworn upon oath depose and say:

1. That I am the Attorney of Record for the

Plaintiff-Petitioner, KENNETH HANES in the

Petition for Writ of Certiorari;

2. That pursuant to the Rules of Practice

of the Supreme Court of the United States, I

certify the forty-five (45) copies of the

Petition for Writ of Certiorari and Appendix

were mailed to the Clerk of the United States

Supreme Court on May 25, 1984 to be filed as

of May 25, 1984;

3. That pursuant to the Rules of Practice

of the Supreme Court of the United States, I

certify that three (3) copies of the Petition

for Writ of Certiorari and Appendix were

mailed to:

(a) Mr. Michael S. O'Connell

Assistant U.S. Attorney

219 South Dearborn Street

Chicago, Illinois 60603

(b) Office of the Solicitor General

U.S. Department of Justice

Main Justice Building

Washington, D.C. 20530

on May 25, 1984 by placing the same in an

envelope with the above-mentioned names and

addresses and depositiong said envelopes in

the U.S. Mail in Chicago, Illinois on May 25,

1984.

JOHN C. AMBROSE

SUBSCRIBED and Sworn to before me this 25th

day of May, 1984.

NOTARY PUBLIC