# Petition for Writ of Certiorari — Hanes v. Heckler

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 1085

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3144%3A1. Public record. Not legal advice.