SSR 70-56c: SECTIONS 216(i) and 223. -- DISABILITY INSURANCE BENEFITS -- ABILITY TO ENGAGE IN SUBSTANTIAL GAINFUL ACTIVITY -- CESSATION BASED ON DEMONSTRATED ABILITY TO WORK

20 CFR 404.1532, 404.1534, 404.1536, and 404.1539

SSR 70-56c

KUTCHMAN v. COHEN, 425 F.2d 20 (7th Cir., 1970)

MORGAN, District Judge : Upon plaintiff's petition for review,

filed under the provisions of Section 205(g) of the Social Security Act,

as amended, 42 U.S.C. 405(g), the court below entered summary judgment

affirming the decision of the Secretary denying plaintiff's applications

to establish a period of disability and for disability insurance benefits.

Plaintiff appeals from that judgment.

There is no factual dispute. Plaintiff suffered poliomyelitis as a child,

as a result of which she has since suffered from partial paralysis. She

has no use of her left arm. Her left leg is seriously affected by

paralysis.

She completed high school. Thereafter, with the exception of certain

periods of unemployment because of injury and for other reasons, she was

employed in various sedentary, or semi-sedentary, occupations during a

period of some twenty years and until May 28, 1964. Her employment was

terminated at that time because of difficulties with her left leg. Shortly

thereafter she endured a long period of hospitalization for therapeutic

procedures, including fusion of her left ankle.

She filed an application for the establishment of a period of disability

and disability benefits in December, 1964. In September, 1965, the

Secretary determined that she was entitled to a period of disability,

commencing in May, 1964, and to disability benefits. A factor deemed

significant by the Secretary at that time was the fact that plaintiff,

because of her physical condition, could not use public transportation in

going to and from work.

of disability

and disability benefits in December, 1964. In September, 1965, the

Secretary determined that she was entitled to a period of disability,

commencing in May, 1964, and to disability benefits. A factor deemed

significant by the Secretary at that time was the fact that plaintiff,

because of her physical condition, could not use public transportation in

going to and from work.

On April 25, 1966, plaintiff obtained employment as a receptionist in the

Personnel Department at the Lutheran Deaconess Hospital in Chicago. She

did all the work that her predecessor in employment had done, except

typing, and except for the fact that she worked a three-day week. After

three months at Lutheran, she terminated her employment because the work

and difficulties of travel to work proved too strenuous for her.

Thereafter, in October, 1966, plaintiff obtained employment at Norwegian

American Hospital in Chicago. She was still engaged in that employment at

the time of the hearing before the Hearing Examiner in February, 1968. Her

work entailed the answering of phones, taking messages for doctors,

handling mail, selling and distributing newspapers, and issuing visitors

passes. Much of her work is done at her desk, though the job does require

considerable walking on the main floor of the hospital. At the time of

that hearing, she was working an average of thirty-six hours per week. Her

take-home pay was approximately $79.00 bi-weekly.

Though her superior at Norwegian stated that plaintiff was totally

disabled, she also stated that no special conditions are arranged for

plaintiff, that she was hired on her merit because she could do the work

required, and that her employment would be terminated if she were not able

to do the work which her job requires.

s per week. Her

take-home pay was approximately $79.00 bi-weekly.

Though her superior at Norwegian stated that plaintiff was totally

disabled, she also stated that no special conditions are arranged for

plaintiff, that she was hired on her merit because she could do the work

required, and that her employment would be terminated if she were not able

to do the work which her job requires.

In June, 1967, the Secretary terminated plaintiff's period of disability

and disability benefits upon the ground that she was working substantially

full time for wages and that she was therefore able to engage in

substantial gainful activity. Following a hearing before a Hearing

Examiner, held at plaintiff's request, the Examiner found that plaintiff

was under a disability from May, 1964, until April, 1967, and that, under

the applicable statutes, her entitlement to disability insurance benefits

ended in June, 1967.

No new medical evidence was introduced at that hearing.

The Hearing Examiner found that there had been no substantial change in

plaintiff's physical condition since the date of the prior disability

determination. He also found that the fact of her employment in a position

in the competitive labor market demonstrated her ability to engage in

substantial gainful

activity. [1]

The judgment below must be affirmed. It is apparent from the

administrative record that the Secretary's finding that plaintiff is able

to engage in substantial gainful activity is supported by substantial

evidence. That determination exhausts the limits of our power of review.

42 U.S.C. 405(g); Workman v. Celebrezze , 7 Cir., 360 F.2d 877, 878; Jones v. Celebrezze , 7 Cir., 331 F.2d 226, 227; Degner v.

Celebrezze , 7 Cir., 317 F.2d 819, 820-821.

e

administrative record that the Secretary's finding that plaintiff is able

to engage in substantial gainful activity is supported by substantial

evidence. That determination exhausts the limits of our power of review.

42 U.S.C. 405(g); Workman v. Celebrezze , 7 Cir., 360 F.2d 877, 878; Jones v. Celebrezze , 7 Cir., 331 F.2d 226, 227; Degner v.

Celebrezze , 7 Cir., 317 F.2d 819, 820-821.

The thrust of plaintiff's argument for the opposite result rests upon the

assertion that the evidence as to the amount of plaintiff's earnings,

alone, supports the Secretary's determination. She asserts that the

original medical evidence, including evidence of her pain, and the finding

that her physical condition has not changed substantially since 1964,

refutes the presumption of her ability to engage in substantial gainful

activity. [2] Principal reliance

to support that argument is based upon the decisions in Leftwich v.

Gardner , 4 Cir., 377 F.2d 287, Hanes v. Celebrezze , 4 Cir., 337

F.2d 209, and Yarborough v. Gardner , E.D.N.C., 283 F.Supp. 814.

Since disability claims invoke a factfinding process upon the basis of

the evidence presented in support of the particular claim, it is always

questionable whether the invasion by a court of the bog of comparative

case analysis serves any useful purpose. Extended analysis of those cases

is not, therefore, undertaken. If it is sufficient to observe that Leftwich involved politically-created employment activity in a job

which the claimant was not physically capable of performing, 377 F.2d at

289. The critical issue in both Hanes , 337 F.2d at 215, and Yarborough , 283 F.Supp. at 820, 822, 823, was the absence of a

finding by the Secretary that "substantial gainful activity" was involved.

In each of the latter two cases it appeared that only a few hours per

month were devoted to the activity from which compensation was derived.

not physically capable of performing, 377 F.2d at

289. The critical issue in both Hanes , 337 F.2d at 215, and Yarborough , 283 F.Supp. at 820, 822, 823, was the absence of a

finding by the Secretary that "substantial gainful activity" was involved.

In each of the latter two cases it appeared that only a few hours per

month were devoted to the activity from which compensation was derived.

Of more pertinency to this case are statements by courts that proof of

the fact of engagement in substantial gainful activity supports the denial

of disability benefits, though the medical evidence, standing alone, would

have led to the opposite conclusion. Marshall v. Gardner , S.D.W.

Va., 298 F.Supp. 542, 545, aff'd per curiam, 4 Cir., 408 F.2d 883; Simmons v. Celebrezze , 4 Cir., 362 F.2d 753, 755.

The Hearing Examiner noted in his findings that the medical evidence

sustained a period of disability for plaintiff commencing in 1964, and

that there was no medical evidence that her physical condition had

thereafter substantially changed. He also noted that plaintiff had been

working in a competitive labor market upon substantially a full-time

basis, having gained and retained her employment by virtue of her ability

to perform the work required in a satisfactory manner without assistance

or special conditions created for her. She had a perfect work attendance

record at Norwegian at the time of the hearing. In sum, those factors,

together with the amount of her earnings in excess of $140 per month, are

adequate to support the Secretary's determination that she was no longer

disabled within the meaning of the Act. 20 C.F.R.

404.1532(b).(c).404.1533.404.1534.

t assistance

or special conditions created for her. She had a perfect work attendance

record at Norwegian at the time of the hearing. In sum, those factors,

together with the amount of her earnings in excess of $140 per month, are

adequate to support the Secretary's determination that she was no longer

disabled within the meaning of the Act. 20 C.F.R.

404.1532(b).(c).404.1533.404.1534.

Admiration for plaintiff's courage and determination in the face of

serious physical limitations cannot be permitted to influence the

disposition of this case. Nor can the fact that she worked despite

frequent pain have any bearing. In that regard, courts have stated that

the existence of pain is evidence which the Secretary must consider. E.g. Page v. Celebrezze , 5 Cir., 311 F.2d 757, 762-763; Butler

v. Fleming , 5 Cir., 288 F.2d 591, 595; Ber v. Celebrezze , 2

Cir., 332 F.2d 293. In the latter case the court said that the Secretary

had to consider the existence of pain, subjectively, and if it was shown

to preclude the particular claimant from engaging in substantial gainful

activity such claimant was disabled. 332 F.2d at 298-301. Each of those

cases involved an initial determination as to whether disability, within

the statutory definition, existed. These were claims by persons not

employed who cited the existence of pain as evidence of disability. In

this case, despite pain, plaintiff has resumed remunerative employment in

the competitive labor market. Significantly, she had not been absent from

work for a single day from October, 1966, until February, 1968. The

evidence that she did suffer pain was not ignored, but it was weighed

against the undisputed evidence of her employment record beginning in

1966.

evidence of disability. In

this case, despite pain, plaintiff has resumed remunerative employment in

the competitive labor market. Significantly, she had not been absent from

work for a single day from October, 1966, until February, 1968. The

evidence that she did suffer pain was not ignored, but it was weighed

against the undisputed evidence of her employment record beginning in

1966.

Plaintiff had the burden of proving her claim of disability. E.g.,

Workman v. Celebrezze; supra; Jones v. Celebrezze, supra; Degner v.

Celebrezze, supra . The Secretary found that plaintiff was engaged in

substantial gainful activity. We may not disturb that finding which the

evidence of record substantially supports.

The judgment is AFFIRMED.

[1] Plaintiff was still unable

to use public transportation. She used private transportation provided by

a friend, or taxi service when necessary.

[2] "* * * An individual's

earnings from work activities averaging in excess of $125 a month [now

$140] shall be deemed to demonstrate his ability to engage in substantial

gainful activity in the absence of evidence to the contrary." 20 C.F.R.

404.1534(b).