SSR 73-23c: Rescinded 1982

20 CFR 404.927, 404.928, and 404.1502(b)

SSR 73-23c

Young v. Secretary, U.S.D.C., E.D. Mich, S. Div., Civ. No. 35001

(1/12/72) (CCH, U.I.R., Fed. Par. 16,549)

Plaintiff, age 45, with eight years schooling, had worked principally as a

sawmill laborer, spot welder, and machine operator until injured in June

1968. In addition to testimony by vocational counselor received at

administrative level, a comprehensive workshop evaluation was obtained by

Secretary to determine residual employability. Plaintiff contended that

such evaluation was inconclusive and erroneous since it relied upon

secondhand information, and no opportunity was afforded to cross examine

source of information; even if facts were true, conclusion that

significant number of jobs exists is erroneous. Held, (1) evidence

gathered by Secretary in course of own investigation can properly furnish

basis for his decision, and fact that information may be secondhand does

not preclude its consideration in reaching a decision. (2) Where sampling

by a vocational workshop of jobs an individual can perform reveals

substantial evidence to support decision that jobs in which individual

could engage exist in "significant numbers."

GUBOW, District Judge:

This is a civil action brought pursuant to Title 42, Section 405(g) of the

United States Code. The plaintiff seeks review of a final decision of the

Secretary of Health, Education, and Welfare, which decision denied the

plaintiff's request for disability benefits provided for by Section 216(i)

[sic, §223] of the Social Security Act, Title 42 U.S.C.A. Section 416(i)

[sic, §423].

The defendant filed a motion for summary judgment and the plaintiff has

filed a cross motion for summary judgment. The Court has heard oral

argument and must now reach a decision on the matters before it.

The plaintiff, John E. Young, was born on October 25, 1927. He completed

eight years of schooling and now possesses a limited ability to read and

write.

A. Section 416(i)

[sic, §423].

The defendant filed a motion for summary judgment and the plaintiff has

filed a cross motion for summary judgment. The Court has heard oral

argument and must now reach a decision on the matters before it.

The plaintiff, John E. Young, was born on October 25, 1927. He completed

eight years of schooling and now possesses a limited ability to read and

write.

Mr. Young was first employed as a laborer in a sawmill, carrying lumber.

After ten years, Mr. Young went to work as a spot welder on radiators.

After working for two years at this job, the plaintiff became a spot

welder at the Chrysler Corporation. One year later, he was laid off and

was employed by Borin Building Supply for six years as a machine operator.

His duties included the taking of blocks off machines and placing them on

a rack. He was again laid off at which time he was employed by Real Block

as a machine operator, where he picked up blocks and placed them on racks.

He worked there for nine years and his employment terminated in June 1968

when he was injured. In January 1969 and March 1969, Mr. Young attempted

to return to work, and did, in fact, work three hours one time and four

hours the other. However, his injuries prevented him from performing his

job and each time Mr. Young was forced to quit. He has made no attempt to

find work since.

The plaintiff received Workmen's Compensation benefits from July 1968 to

January 1969, which were terminated for the reasons that Mr. Young was

considered able to return to work. He is now appealing that decision. As a

married man and a father of nine children, Mr. Young is receiving Two

Hundred and Sixty-one Dollars ($261.00) biweekly in ADC benefits.

ade no attempt to

find work since.

The plaintiff received Workmen's Compensation benefits from July 1968 to

January 1969, which were terminated for the reasons that Mr. Young was

considered able to return to work. He is now appealing that decision. As a

married man and a father of nine children, Mr. Young is receiving Two

Hundred and Sixty-one Dollars ($261.00) biweekly in ADC benefits.

The injury which the plaintiff suffered occurred when he was caught in a

feedbox on a machine which caused him to fall back into a concrete beam

and land on a concrete floor. As a result of this accident, Mr. Young

fractured his right leg and ankle which necessitated the insertion of two

screws to heal the broken bones. Mr. Young has also complained of

headaches, loss of grip in his left hand, and a sore back. Mr. Young has

recovered from the bone fractures but complains that the headaches, the

loss of grip, and the back pains persist.

At the hearing, the hearing examiner received testimony from Mr. Young.

Mrs. Beatrice Young (his wife), and Dr. Robert E. Wurtz, a vocational

counselor. Moreover, the hearing examiner had the opinion of several

doctors on which to base his opinion as to Mr. Young's physical condition.

The result was that "[a]fter consideration of the medical evidence in the

light most favorable to the claimant, the Hearing Examiner [found] that

his work activities [were] restricted with respect to strenuous back

movements and possibly prolonged standing or walking."

e hearing examiner had the opinion of several

doctors on which to base his opinion as to Mr. Young's physical condition.

The result was that "[a]fter consideration of the medical evidence in the

light most favorable to the claimant, the Hearing Examiner [found] that

his work activities [were] restricted with respect to strenuous back

movements and possibly prolonged standing or walking."

In support of its motion for summary judgment, the government argues that

the burden of proving the existence of a disability is upon the plaintiff.

The government contends that in the present case "there is a wealth of

vocational evidence showing that despite this impairment the plaintiff yet

retains the capacity and aptitude to do various jobs which are compatible

until [sic] his background." (Government's brief P. 5) Moreover, the

government asserts that the evidence furnished by the hearing examiner in

support of his decision meets the "substantial evidence" test. Rose v.

Cohen, 406 F. 2d 753 (6th Cir. 1969).

Clearly, the burden of establishing entitlement to disability benefits is

upon the plaintiff. Rose v. Cohen, supra. However, in Garret v.

Finch, 436 F. 2d 15 (6th Cir. 1970) Judge O'Sullivan noted:

Under a rule of this and other circuits, an applicant makes a prima facie

case by showing that he is unable to work at his usual occupation. The

burden then shifts to the Secretary to produce evidence that will justify

a finding that there is available some other kind of 'substantial gainful

employment' applicant is able to perform. Id at 18.

Consequently, in such cases, the burden is upon the Secretary to show by

substantial evidence that there in fact exists available employment

opportunities to a person with the claimant's specific characteristics and

impairments and which the claimant is capable of performing. Baltimore

v. Gardner, 271 F. Supp. 273 (W.D. Va. 1967).

nful

employment' applicant is able to perform. Id at 18.

Consequently, in such cases, the burden is upon the Secretary to show by

substantial evidence that there in fact exists available employment

opportunities to a person with the claimant's specific characteristics and

impairments and which the claimant is capable of performing. Baltimore

v. Gardner, 271 F. Supp. 273 (W.D. Va. 1967).

Here it is clear that the plaintiff has made a prima facie case by showing

that he is unable to work at his usual occupation. The hearing examiner

found that "[t]he claimant was unsuccessful in his attempts to return to

his former job. This is not surprising in view of the strenuous work he

performed." In light of these words, the burden then shifted to the

Secretary to show by substantial evidence that a significant number of

jobs in the Detroit area were available to the claimant.

In denying Mr. Young disability benefits and in attempting to satisfy his

burden of proof, the hearing examiner found:

"However, the test under the disability provisions of the Social Security

Act is not whether an individual can perform his usual work but whether he

has the capacity to engage in any substantial gainful activity. The

comprehensive workshop evaluation at Goodwill Industries clearly

establishes that he has such capability. Some 223 light and 57 sedentary

jobs were selected from the Dictionary of Occupational Information after

considering work limitations in excess of these established by the medical

evidence. Information furnished by the Michigan Employment Service

indicates approximately 1200 bench assembly jobs were available in the

Detroit Metropolitan Area. This sampling alone is convincing evidence that

work exists in significant numbers in the region where the claimant

resides."

onal Information after

considering work limitations in excess of these established by the medical

evidence. Information furnished by the Michigan Employment Service

indicates approximately 1200 bench assembly jobs were available in the

Detroit Metropolitan Area. This sampling alone is convincing evidence that

work exists in significant numbers in the region where the claimant

resides."

The plaintiff attacks the hearing examiner's decision on two grounds.

First, the plaintiff argues that the information received from Goodwill

Industries of Greater Detroit was inconclusive and erroneous since the

information received was secondhand and since the plaintiff never had the

opportunity to cross-examine the source of the information, a Mrs. M. Jane

Weber. Second, the plaintiff argues that, even if the facts obtained from

Mrs. Weber are verified as true, the examiner erred in his conclusion that

1200 bench assembly jobs was a "significant" number of jobs existing in

the region where the claimant resides. Therefore, the plaintiff asks that

his motion for summary judgment be granted.

Judicial review of a final decision of the Secretary of Health, Education

and Welfare is provided for, and limited by, Title 42 U.S.C.A., Section

405(g) which provides in part that "the findings of the Secretary as to

any fact, if supported by substantial evidence, shall be conclusive . . ."

Consequently, although the burden of proving that the plaintiff was able

to engage in substantial gainful employment was upon the hearing examiner,

this Court's review of his decision is limited to a determination of

whether or not the examiner's decision is supported by "substantial

evidence". If it is, then his decision must be affirmed. Bailey v.

Gardner, 368 F.2d 841 (6th Cir. 1967).

Consequently, although the burden of proving that the plaintiff was able

to engage in substantial gainful employment was upon the hearing examiner,

this Court's review of his decision is limited to a determination of

whether or not the examiner's decision is supported by "substantial

evidence". If it is, then his decision must be affirmed. Bailey v.

Gardner, 368 F.2d 841 (6th Cir. 1967).

The plaintiff's first contention, that the evidence upon which the hearing

examiner based his decision was inconclusive and erroneous because the

plaintiff was not afforded the opportunity of cross-examination and

because it was secondhand information, is without merit. Section 405(b) of

Title 42, specifically provides that the Secretary is "authorized, on his

own motion, to hold such hearings and to conduct such investigations . . .

as he may deem necessary and proper. . ."

Here, the hearing examiner, finding that the testimony of the vocational

expert furnished insufficient evidence upon which to base a decision,

found it necessary to conduct his own investigation. The examiner

contacted Goodwill Industries which informed the examiner that some 1200

jobs of the type which the plaintiff could perform were available in the

area. Clearly, Title 42 U.S.C.A. Section 405(b) authorizes such an

investigation by the examiner and the evidence which is gathered in the

course of the investigation can properly furnish a basis upon which to

found a decision.

Finally, the Court finds that the hearing examiner's decision that jobs in

which the plaintiff could engage existed in significant numbers in the

region where the claimant resides is based upon substantial evidence. As

the hearing examiner indicated, a sampling of jobs which plaintiff can

perform revealed that 1200 such jobs were available in the area. This

sampling alone furnished substantial evidence upon which the hearing

examiner could base a decision that such jobs were available in

significant numbers.

icant numbers in the

region where the claimant resides is based upon substantial evidence. As

the hearing examiner indicated, a sampling of jobs which plaintiff can

perform revealed that 1200 such jobs were available in the area. This

sampling alone furnished substantial evidence upon which the hearing

examiner could base a decision that such jobs were available in

significant numbers.

It is interesting to note that at the conclusion of his workshop

evaluation, Mrs. Weber reported that Mr. Young stated that he felt better

working and being on a strict routine; that his headaches were not as bad

as they had been at the beginning and expressed a willingness to go back

to work if suitable employment could be found.

Here the record is clear and the hearing examiner did find that the

plaintiff is impaired to some extent but his impairment is not such as

would preclude him from engaging in any substantial gainful activity.

For the above reasons, the Court concludes that there is substantial

evidence in the record to support the findings of the Secretary (Hearing

Examiner). The Motion for Summary Judgment of the plaintiff is DENIED and

GRANTED as to the defendant.

IT IS SO ORDERED.