SSR 81-3c: Rescinded 1982

20 CFR 404.1529 [*]

SSR 81-3c

KEEF v. WEINBERGER, 404 F. SUPP. 1193 (D. Kan 1975)

The claimant applied for disability insurance benefits in September 1972.

She alleged that she became unable to engage in substantial gainful

activity due to an accident on November 11, 1969 when a pipe struck her

head causing nerve damage which progressed into neuralgia and arthritis of

the spine. The claimant testified that these impairments and the pain

resulting from them prevented her from working. As a result of injury to

the neck, two cervical vertebrae were surgically fused in January 1970.

The claimant was treated on several occasions for pain attributed to the

injuries she sustained in the accident. However, tests revealed neither

significant joint motion limitation nor other findings indicating a

substantial limitation in strength, exertional tolerance, or manipulative

abilities. All of the physicians who examined the claimant considered her

capable of performing light work, for which she was vocationally

qualified. A basis for disabling pain was not found. The Social Security

Administration (SSA) considered all of the evidence submitted, including

the opinions of the physicians and testimony of the claimant regarding the

pain caused by her condition. Faced with a conflict between the medical

evidence and the claimant's testimony, SSA relied heavily on the medical

findings and conclusions in denying the claimant's application. In its

review, the district court held (1) that there was not sufficient

evidence to support the claimant's allegations that her pain was disabling

and (2) that SSA's finding that the claimant was able to engage in

substantial gainful activity was supported by substantial evidence.

ROGERS, District Judge:

ily on the medical

findings and conclusions in denying the claimant's application. In its

review, the district court held (1) that there was not sufficient

evidence to support the claimant's allegations that her pain was disabling

and (2) that SSA's finding that the claimant was able to engage in

substantial gainful activity was supported by substantial evidence.

ROGERS, District Judge:

This proceeding was instituted by plaintiff against the Secretary of

Health, Education and Welfare as authorized by Section 205(g) of the

Social Security Act, 42 U.S.C. §405(g), for the purpose of obtaining

judicial review of a final decision of the Secretary denying her

application for disability insurance benefits under 42 U.S.C. §416(i),

423. Both parties in this action have submitted motions for summary

judgment together with briefs in support of their respective positions. By

waiving oral argument, the parties have indicated the case is ready for

summary disposition.

The plaintiff filed her application to establish a period of disability

on September 5, 1972, as provided in 42 U.S.C. §, and for disability

insurance benefits, as provided under 42 U.S.C. §The plaintiff, the

claimant below, alleged that she became unable to engage in substantial

gainful employment due to a work-related accident on November 11, 1969,

when a pipe struck her on the head causing her nerve damage which

progressed into neuralgia and arthritis of the spine. Initially, the claim

was denied in reliance upon a finding that her physical examination

remained essentially normal and that no significant motion limitation due

to the alleged arthritic involvement had been documented. Record at 117.

This finding was based upon the medical report supplied by Dr. Samuel

Petrie. On September 18, 1973, the Administrative Law Judge held a hearing

regarding the claimant's application at which the claimant, her attorney

and a favorable witness were present

sentially normal and that no significant motion limitation due

to the alleged arthritic involvement had been documented. Record at 117.

This finding was based upon the medical report supplied by Dr. Samuel

Petrie. On September 18, 1973, the Administrative Law Judge held a hearing

regarding the claimant's application at which the claimant, her attorney

and a favorable witness were present. After medical reports from four (4)

doctors, the University of Kansas Medical Center, and a psychiatrist were

submitted for consideration by the Administrative Law Judge, the decision

denying plaintiff's application was filed on March 24, 1974. The Appeals

Council upheld the decision of the Administrative Law Judge; consequently

his decision became the final decision of the Secretary on October 7,

1974.

In his evaluation of the evidence and statement of his rationale, the

Administrative Law Judge found that the claimant would meet the special

earnings requirements for purposes of receiving disability benefits to and

including September 30, 1973. He also found that while the claimant

established the existence of a medically determinable physical impairment,

she had failed to establish that by reason of the impairment, she was

unable to engage in substantial gainful activity. The Administrative Law

Judge felt that in light of the medical evidence the claimant could

perform the relatively non-demanding work of a clerk in a bakery or work

as a domestic, work she had performed at some time during her working

years.

inable physical impairment,

she had failed to establish that by reason of the impairment, she was

unable to engage in substantial gainful activity. The Administrative Law

Judge felt that in light of the medical evidence the claimant could

perform the relatively non-demanding work of a clerk in a bakery or work

as a domestic, work she had performed at some time during her working

years.

[1] The claimant filed this action on December 6, 1974, which was exactly

sixty days after the Administrative Law Judge's decision became final. 42

U.S.C. §405(g). In reviewing the Secretary's decision, the Congress is

charged with the limited function of determining whether the findings of

fact are supported by substantial evidence and the inferences reasonably

drawn therefrom. If there is such support, the reviewing court is

precluded from disturbing the findings. Trujillo v. Richardson , 429

F.2d 1149 (10th Cir. 1970); Adams v. Richardson , 336 F. Supp. 983

(D. Kan. 1972). In Branch v. Finch , 313 F. Supp. 337 (D. Kan. 1970)

(Templar J.), the district court judge clarified the standard for review

in the following manner:

Substantial evidence has been defined as 'such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.' Stated

in a different manner, the evidence must be such, if the trial went to a

jury, as would justify a refusal to direct a verdict when the conclusion

sought to be drawn from it is one of fact for the jury. If there is only a

slight preponderance of the evidence on one side or the other, the

Secretary's finding should be affirmed. Branch v. Finch, supra at

341.

support a conclusion.' Stated

in a different manner, the evidence must be such, if the trial went to a

jury, as would justify a refusal to direct a verdict when the conclusion

sought to be drawn from it is one of fact for the jury. If there is only a

slight preponderance of the evidence on one side or the other, the

Secretary's finding should be affirmed. Branch v. Finch, supra at

341.

The key question in this case is whether there is substantial evidence to

sustain the finding that the claimant was not unable to engage in

substantial gainful activity by reason of her medically determinable

physical impairment. To properly analyze the finding of the Administrative

Law Judge, it is necessary to review the purpose of the Social Security

Act, the standards applicable to the related administrative proceedings,

the steps the claimant must follow and the evidence that should be

considered.

[2, 3] The purpose of the Social Security Act is to ameliorate some of

the rigors of life for those who are disabled or impoverished. Dvorak

v. Celebrezze , 345 F. 894 (10th Cir. 1965). To accomplish this goal,

the Act must be construed liberally. Since the district court is bound by

the findings made by the Administrative Law Judge if they are supported by

substantial evidence, it is precluded from trying the case de novo. This,

however, does not abrogate the court's traditional function of

scrutinizing the entire record to determine whether the conclusions made

by the Secretary are rational. Mitchell v. Weinberger , 404 F. Supp.

1213 (D.Kan. 1975). If the Court should determine that reliance has been

placed upon one portion of the record in disregard of overwhelming

evidence to the contrary, it is obligated to modify or reverse the

Secretary's findings with or without remanding the case for a rehearing. Branch v. Finch , 313 F. Supp. 337 (D.Kan. 1970).

The statutory definition of disability, as set forth in 42 U.S.C.

§423(d), is an

If the Court should determine that reliance has been

placed upon one portion of the record in disregard of overwhelming

evidence to the contrary, it is obligated to modify or reverse the

Secretary's findings with or without remanding the case for a rehearing. Branch v. Finch , 313 F. Supp. 337 (D.Kan. 1970).

The statutory definition of disability, as set forth in 42 U.S.C.

§423(d), is an

(1)(A) Inability to engage in 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 . . . .

(2)(A) For purposes of paragraph (1)(A)—an individual . . . shall

be determined to be under a disability only if his physical or mental

impairment or impairments are of such severity that he is not only unable

to do his previews 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 be hired if he applied for

work . .

(3) For purposes of this subsection, a 'physical or mental impairment' is

an impairment that results from anatomical, physiological, or

psychological abnormalities which are demonstrable by medically acceptable

clinical and laboratory diagnostic techniques.

The Act places the burden of establishing the existence of a disability

on the claimant. 42 U.S.C. 423(d)(5).

applied for

work . .

(3) For purposes of this subsection, a 'physical or mental impairment' is

an impairment that results from anatomical, physiological, or

psychological abnormalities which are demonstrable by medically acceptable

clinical and laboratory diagnostic techniques.

The Act places the burden of establishing the existence of a disability

on the claimant. 42 U.S.C. 423(d)(5).

[4] For a claimant to gain disability benefit insurance, he must first

establish that he meets the special earnings requirement of the Act. 42

U.S.C. §416(i)(3)(B); 423(c)(1)(B). Then the claimant must sustain his

burden of proof under 42 U.S.C. §423, which establishes the bifurcated

test that (1) he has a medically determinable physical or mental

impairment and (2) by reason there he is unable to engage in substantial

gainful activity. Even when the claimant fails to overcome these hurdles,

the burden of proof shifts to the Secretary to establish that if the

claimant can engage in substantial gainful activity such activity exists

in the national economy, regardless of whether such work exists in the

immediate area in which he lives, whether a specific job vacancy exists

for him or whether he would be hired if he applied to work. 20 C.F.R.

§404.1502; contra, Gardner v. Smith , 368 F.2d 77 (5th Cir. 1966).

If the Administrative Law Judge determined that the claimant can return to

his previous employment, it is deemed sufficiently established that such

work exists in the national economy. Branch v. Finch , 313 F.Supp.

337 (D. Kan. 1970).

b vacancy exists

for him or whether he would be hired if he applied to work. 20 C.F.R.

§404.1502; contra, Gardner v. Smith , 368 F.2d 77 (5th Cir. 1966).

If the Administrative Law Judge determined that the claimant can return to

his previous employment, it is deemed sufficiently established that such

work exists in the national economy. Branch v. Finch , 313 F.Supp.

337 (D. Kan. 1970).

[5] In terms of this case, the claimant was able to establish she met the

special earnings requirements of the Act and that she had a medically

determinable physical impairment; however, in the opinion of the

Administrative Law Judge, she failed to establish that her physical

impairment precluded her from engaging in substantial gainful employment, i.e. , working as a domestic or a bakery clerk. In determining

whether there is substantial support in the record for the Secretary's

denial of benefits, four inter-related types of proof are to be

considered: (1) objective medical facts; (2) expert medical opinion; (3)

subjective evidence of pain and disability; and (4) claimant's present

age, educational background and work history. Adams v. Richardson ,

336 F.Supp. 983 (D.Kan. 1972). As in many cases which are appealed to the

district court, the conflict arises between the expert medical opinion, a

form of subjective evidence, and the subjective evidence of pain. While

each of these items of consideration may be supported by objective pain,

they are previously the types of evidence whose weight and credibility is

to be determined by the Administrative Law Judge as the finder of fact and

this Court may not reweigh such evidence or substitute its opinion for

that of the Secretary when supported by substantial evidence.

subjective evidence of pain. While

each of these items of consideration may be supported by objective pain,

they are previously the types of evidence whose weight and credibility is

to be determined by the Administrative Law Judge as the finder of fact and

this Court may not reweigh such evidence or substitute its opinion for

that of the Secretary when supported by substantial evidence.

[6] The record in this case discloses that at the time of the hearing the

claimant was approximately 52 years of age, had a high school education

and had many non-skilled employment experiences, although many were of

short duration due to the transitory nature of her first husband's

occupation. Her first husband divorced her in 1964 and she remarried in

1967. Her present husband was then under treatment at the Veterans's

Hospital for an alcohol problem, psychological problems and war-related

injuries. Due to the care he required, he frequently stayed with his

brother. This relationship was deemed a cause of the claimant's chronic

anxiety and tension by one of the examining doctors. Except for uterine

disorders, the claimant had apparently been in good health until November

11, 1969, when she was struck on the head by a metal pipe while at work in

a grocery store. The claimant testified that she had previously worked in

a bakery, as a farmer's wife substituting as a hired hand, stocker and

checker in a grocery store which required lifting boxes of up to forty

ors. Except for uterine

disorders, the claimant had apparently been in good health until November

11, 1969, when she was struck on the head by a metal pipe while at work in

a grocery store. The claimant testified that she had previously worked in

a bakery, as a farmer's wife substituting as a hired hand, stocker and

checker in a grocery store which required lifting boxes of up to forty

(40) pounds and as a waitress who worked standing all day. She asserted

that the accident led to several impairments which made it impossible for

her to engage in substantial gainful activity, to wit: neuralgia,

arthritis of the spine, nerve damage and the pain which resulted

therefrom. The claimant's personal physician diagnosed her condition as

acute cervical strain and prescribed muscle relaxants and physical

therapy. The physical therapy was not completed, for instead the claimant

underwent myelogram studies and subsequently two of her cervical vertebra

were fused in January of 1970. Since that time the claimant has had

continuing complaint of pain in her neck and her hands and arms.

At the hearing before the Administrative Law Judge, the claimant produced

the following additional evidence, (Record at 28-69):

In the summer of 1970, Dr. Kozikowski informed her she could not return

to her checking job at the grocery store, but released her with permission

to do light work. She, however, felt she was unable to do housework and

she couldn't lift her right arm without pain. Nevertheless she tried to

find employment. Most employers would not consider employing her because

of her spinal problem. The state employment security division sent her on

interviews but these were not successful until the summer of 1971, when

she obtained employment as a tour guide. She held that job for

approximately four weeks until she stained her back while decapitating a

chicken for cleaning purposes

to

find employment. Most employers would not consider employing her because

of her spinal problem. The state employment security division sent her on

interviews but these were not successful until the summer of 1971, when

she obtained employment as a tour guide. She held that job for

approximately four weeks until she stained her back while decapitating a

chicken for cleaning purposes. She was taken by ambulance to the Kansas

University Medical Center where she was treated for about a week and then

released. The claimant made subsequent attempts at working as a cafeteria

server and as an attendant to an elderly shut-in. Both these efforts ended

when the claimant developed leg or chest pains assertedly caused by the

strain the work placed on her back and neck. In 1972 Dr. Samuel C. Petrie

determined that the plaintiff was developing arthritis in the spine and

prescribed a back brace. When she resisted wearing the back brace she was

told that without the brace her condition would progress to the point that

she could no longer walk erect. However, when she wore the brace for

prolonged periods, the next day her knees would not support her due

apparently to the effect the brace had on her lower back. The claimant

also testified that by October 1972, the pains in her shoulder had

expanded to her neck and facial region. As to her degree of disability,

the claimant testified that if she stood very long, she got pains in her

legs and that if she sat very long, she got pains in her hips and upper

legs. The pain, which had its focal point in her shoulder, had progressed

to the point that she could no longer lift things with her hands nor was

her grip strong enough to hold objects. In addition, she testified that

once every two or three weeks she was bedridden for several days because

of the pain

pains in her

legs and that if she sat very long, she got pains in her hips and upper

legs. The pain, which had its focal point in her shoulder, had progressed

to the point that she could no longer lift things with her hands nor was

her grip strong enough to hold objects. In addition, she testified that

once every two or three weeks she was bedridden for several days because

of the pain. Finally the claimant stated that beyond her own physical

disabilities, the fact that the doctors at the Veterans' Hospital wanted

her husband to enter the psychiatric ward at the facility was exacerbating

her condition. Finally her sister-in-law testified as to the claimant's

difficulties arising from the industrial accident which included the

claimant's need for assistance in doing her housework.

Counterbalancing this evidence, the Administrative Law Judge had to

consider the medical evidence submitted by the claimant and that which was

submitted by his order. In October 1970, Dr. Ivan W. Cain attributed the

claimant's symptomatology of pain in the lateral aspect of the right upper

arm and the fingers to the fusion of her discs at C5- C6 level. He

concluded that there was a 35 percent permanent partial disability to the

body as a whole as a result of the injuries sustained in the accident at

work on November 11, 1969, and that the claimant was not physically able

to do the work that she did prior to the accident. Record at

150-53. On July 20, 1971, the claimant was treated at the Kansas

University Medical Center for low back pain. Although medication and local

heat were prescribed, examination reports indicated a full range of

motion, straight leg raising tests were negative, backward and sideward

bending motions were good and flexion was 20 degrees soon after she was

released. In August 1972, Dr. Samuel C. Petrie conducted several tests to

which claimant demonstrated a normal masters two step and laboratory and

urinalysis studies were essentially normal

rescribed, examination reports indicated a full range of

motion, straight leg raising tests were negative, backward and sideward

bending motions were good and flexion was 20 degrees soon after she was

released. In August 1972, Dr. Samuel C. Petrie conducted several tests to

which claimant demonstrated a normal masters two step and laboratory and

urinalysis studies were essentially normal. His diagnosis was of

musculoskeletal pain secondary to arthritis, which was aggravated by her

underlying chronic anxiety and tension. He also opined that the plaintiff

was not disabled. Record at 120. Based upon this report, the Social

Security Administration denied the claimant's initial application for

disability benefits. Dr. Ben M. Kozikowski performed the spinal fusion and

released the claimant for light work. When he treated the claimant again

in March of 1973, his diagnosis was thoracic sprain, sub-acute,

superimposed on increased lumbar lordotic curvature. He opined that the

claimant should be as active as possible but should not attempt activities

which involve strenuous bending or lifting, i.e. , disabled for

heavy activities only. Record at 132. Dr. J. Michael Boles, the claimant's

personal physician, treated her on several occasions from the date of the

accident to just prior to the administrative hearing. His diagnosis was a

mild, generalized osteoarthritis and neck and back pain of undetermined

etiology. Record at 149. After the hearing was conducted, the

Administrative Law Judge ordered that the claimant undergo a psychiatric

examination. See 20 C.F.R. §404.1527. The psychiatrist, Dr. Charles

Glazzard, concluded that her thought processes and associations were

normal. He noted no evidence of extreme depression or emotional reactions

which would be incompatible with occupational activity. Record at 163.

fter the hearing was conducted, the

Administrative Law Judge ordered that the claimant undergo a psychiatric

examination. See 20 C.F.R. §404.1527. The psychiatrist, Dr. Charles

Glazzard, concluded that her thought processes and associations were

normal. He noted no evidence of extreme depression or emotional reactions

which would be incompatible with occupational activity. Record at 163.

The Administrative Law Judge, stating he had "carefully considered all of

the testimony at the hearing, the arguments made, and the exhibits

described in the list of exhibits attached to [his] decision," noted that

the claimant had continued to complain of pain in her neck and in her

hands and arms but also noted that "[n]one of the doctors have been able

to find the reason for Claimant's continuing severe symptomatology."

Record at 14-15. He went on to conclude that "[i]t is the opinion of the

examining doctors that she has some osteoarthritis in the area of the neck

but no where do the doctors suggest that this arthritis results in severe

limitation of motion or that it might properly be considered to be of the

degree of severity required by the Statute." The record discloses that the

range of impairment of bodily functions was 20 to 35 percent. Finally he

concluded that the medical evidence failed to establish that this

impairment would preclude her from performing the relatively non-demanding

work of a clerk in a bakery or as a domestic.

on or that it might properly be considered to be of the

degree of severity required by the Statute." The record discloses that the

range of impairment of bodily functions was 20 to 35 percent. Finally he

concluded that the medical evidence failed to establish that this

impairment would preclude her from performing the relatively non-demanding

work of a clerk in a bakery or as a domestic.

In Dvorak v. Celebrezze , 345 F.2d 894 (10th Cir. 1965), the Tenth

Circuit Court of Appeals addressed the issue of a claimant's right to

relief because of subjective symptoms of pain which were not sustained by

objective findings. As noted there, the problem in such cases is the

difficulty of disproving by evidence a claimant's subjective statement of

inability to work because of pain and that precedence is of little

assistance because of the unique factual situation raised by each

claimant's assertion of an inability to work. However, an analysis of

prior cases may be beneficial in directing the reviewing court toward a

proper evaluation of the Administrative Law Judge's determination of the

weight to be given conflicting evidence.

In Dvorak, supra , the only evidence the claimant presented in

support of his claim was his testimony that he was suffering such severe

pain that it was impossible for him to engage in substantial gainful

employment. None of the doctors who submitted reports were of the opinion

that Dvorak's lower back pain was severe enough to meet the statutory

standard. The Tenth Circuit noted that while pain of such severity may

preclude someone from engaging in substantial gainful activity, subjective

symptoms must be evaluated with due consideration for credibility,

motivation and medical evidence of impairment. Unlike the Dvorak

case , the record under consideration does not raise the issue on the

claimant's credibility or motivation

ory

standard. The Tenth Circuit noted that while pain of such severity may

preclude someone from engaging in substantial gainful activity, subjective

symptoms must be evaluated with due consideration for credibility,

motivation and medical evidence of impairment. Unlike the Dvorak

case , the record under consideration does not raise the issue on the

claimant's credibility or motivation. While a negative inference could be

drawn from the fact that the administrative Law Judge ordered the claimant

to submit to a psychiatric examination, the opinion denying the claimant's

application stresses only the evidence submitted by the medical doctors.

None of the doctors who submitted reports in the case at bar were of the

opinion that the claimant's impairment precluded her from fulfilling the

duties of an employee required to do only light work.

In Adams v. Richardson , 336 F.Supp. 983 (D. Kan. 1972), the

district court judge was asked to review the denial of benefits to a 65-

year-old woman who had been injured in a fall. She experienced pain in the

back of her hip which radiated down her left leg causing numbness. She had

recurring periods of dizziness on account of the pain and felt unable to

work, to do her housework, or to care for herself. Her ability to walk was

impaired to the extent that she utilized a walking stick. However, a

majority of the doctors who had examined the claimant would not agree that

the severity of the injuries was such as would cause the considerable pain

claimed by the claimant. In fact, repeated X-rays and diagnostic tests

were essentially negative. The court affirmed the denial of benefits after

stating, "Subjective descriptions of pain unsupported by objective

clinical and laboratory findings do not automatically disqualify a

claimant

ant would not agree that

the severity of the injuries was such as would cause the considerable pain

claimed by the claimant. In fact, repeated X-rays and diagnostic tests

were essentially negative. The court affirmed the denial of benefits after

stating, "Subjective descriptions of pain unsupported by objective

clinical and laboratory findings do not automatically disqualify a

claimant. Pain which results in a person being unable to engage in any

gainful occupation suited to his training and experience may be the basis

for an award, provided the pain results from a medically determinable

physical or emotional impairment." Adams v. Richardson, supra at

985. The only difference the court can discern between the facts in the Adams case and those in the case at bar is that the evidence of

impairment there presents a more compelling basis for awarding disability

benefits. However, the Court does not have before it the findings of the

Administrative Law Judge in the Adams case and thus can not

evaluate how fully he considered the evidence in each of the interrelated

categories.

The final case to be compared is Longo v. Weinberger , 369 F. Supp.

250 (E.D. Pa. 1974). The district court reversed the denial of benefits

because the Administrative Law Judge had erroneously rejected the medical

opinions of the examining physicians as merely subjective in nature.

Referring to the medical opinions as subjective evidence, the court held

that, "[t]he reports of the doctors as to various ailments of the

claimant, while not objective, are certainly evidence which meets the

standards of the Act and the regulations. Subjective evidence alone is

sufficient to establish a disability." The court, however, qualified this

by indicating that the claimant had the burden of proving that the

subjective symptoms of pain were supported by some abnormal findings. See

20 C.F.R. Subpart P, App. §1.00

claimant, while not objective, are certainly evidence which meets the

standards of the Act and the regulations. Subjective evidence alone is

sufficient to establish a disability." The court, however, qualified this

by indicating that the claimant had the burden of proving that the

subjective symptoms of pain were supported by some abnormal findings. See

20 C.F.R. Subpart P, App. §1.00. The case involved a 52-year- old woman

claiming disability due to bursitis and a trigger finger. She was a

nineteen-year employee as a tailor which required speed and dexterity with

her hands. Although her overall claim included physical, emotional and

mental symptoms, her most distinct ailment involved pain in her shoulder

area and a tingling and numbness in her hands with the consequent

impairment of her ability to grip objects. The claimant lived with her

husband who had a terminal illness and who was receiving disability

benefits from the date he stopped working which coincidentally was the

date the claimant asserted she too became disabled. The claimant had

undergone operations on her hand and wrist which disclosed no arthritis

but two other restrictive diseases. She was also treated for tension state

with numerous psychosomatic manifestations exacerbated by her husband's

illness. The attending physician was of the opinion that the claimant had

reached the point where she was no longer able to work. Due to the

district court's disposition of the case, they placed primary emphasis

upon the physician's report.

but two other restrictive diseases. She was also treated for tension state

with numerous psychosomatic manifestations exacerbated by her husband's

illness. The attending physician was of the opinion that the claimant had

reached the point where she was no longer able to work. Due to the

district court's disposition of the case, they placed primary emphasis

upon the physician's report.

These three cases were selected from the multitude of cases reported on

the issue of whether substantial evidence exists to support the findings

of the Administrative Law Judge in a Social Security hearing because they

reflect many of the factors courts have considered in fulfilling their

judicial function of reviewing the determinations of the Administrative

Law Judge. In each of the cases, the Administrative Law Judge was faced

with the task of evaluating subjective evidence, i.e. , opinions by

medical personnel and testimony by the claimant regarding his or her pain

caused by some condition frequently of undocumented etiology. In each case

cited, the district court, after ensuring that the Administrative Law

Judge had not abdicated his duty to consider all the evidence

submitted in the case, relied heavily upon the opinions of the reporting

doctors. This reliance was particularly heavy when there was a conflict

between the medical testimony or evidence and the claimant's testimony.

For the Court to apply the standard for review of the findings of the

Administrative Law Judge in this case, two approaches can be utilized.

First, the Court can simply evaluate whether there is substantial evidence

to sustain the findings of the Administrative Law Judge. Second, the Court

can determine whether there is such overbalancing evidence that the

plaintiff's pain precluded her from engaging in substantial gainful

employment that the findings should be modified

Law Judge in this case, two approaches can be utilized.

First, the Court can simply evaluate whether there is substantial evidence

to sustain the findings of the Administrative Law Judge. Second, the Court

can determine whether there is such overbalancing evidence that the

plaintiff's pain precluded her from engaging in substantial gainful

employment that the findings should be modified. The first question is

easily answered by noting that all doctors who submitted reports in this

case were of the opinion that the claimant should be able to engage in

light work which, the Administrative Law Judge concluded, would include

her previous work as a domestic or as a bakery clerk. While the claimant's

attorney challenges the finding that the claimant could work as a

domestic, no such attack is made in the pleadings upon the finding that

she could work as a bakery clerk. This Court feels from the evidence

included in the record on appeal that the plaintiff could work as a bakery

clerk and could, if the duties were light, serve as a domestic. If

reliance is placed upon the doctors' reports, this portion of the findings

is supported by substantial evidence since the doctors all directly or by

implication opined that the claimant was able to engage in light work. In

fact, the only evidence contrary to the plaintiff's ability to work is the

plaintiff's testimony and that of her sister-in-law. Cf. Branch v.

Finch , 313 F.Supp. 337 (D.Kan. 1970). As to the second approach, Branch v. Finch, supra , contains the following analysis:

antial evidence since the doctors all directly or by

implication opined that the claimant was able to engage in light work. In

fact, the only evidence contrary to the plaintiff's ability to work is the

plaintiff's testimony and that of her sister-in-law. Cf. Branch v.

Finch , 313 F.Supp. 337 (D.Kan. 1970). As to the second approach, Branch v. Finch, supra , contains the following analysis:

[W]hether that impairment and accompanying pain are so severe that the

claimant is unable to engage in any substantial gainful activity is mainly

a subjective determination. This Court is well aware of the fact that pain

can be so severe as to be disabling in itself, with or without objective

symptoms. . . . The test is not whether the impairment, subjective or

objective, would be disabling to a theoretical person but instead whether

the subjective complaint independently or together with other impairments

is disabling to this particular claimant. . . . Subjective symptoms should

be evaluated with due consideration for credibility, motivation, and

medical evidence of impairment. . . . That burden of proving disability

under the Social Security Act is with the claimant, . . . and this burden

need not be carried beyond a reasonable doubt." Branch v. Finch,

supra at 346 (citations omitted).

In light of the statement by the Administrative Law Judge that he

considered all the evidence and the absence of overwhelming evidence supportive of the claimant's complaints of pain, the second

approach also leads this Court to the result that the Secretary's decision

can not be disturbed.

need not be carried beyond a reasonable doubt." Branch v. Finch,

supra at 346 (citations omitted).

In light of the statement by the Administrative Law Judge that he

considered all the evidence and the absence of overwhelming evidence supportive of the claimant's complaints of pain, the second

approach also leads this Court to the result that the Secretary's decision

can not be disturbed.

[7] The Secretary's determination is final if supported by substantial

evidence and the inferences to be drawn therefrom. When the Administrative

Law Judge is faced with the task of weighing two conflicting types of

evidence, both of which are subjective in nature, his decision must be

affirmed even if there is only a slight preponderance of evidence on one

side or the other. While if this case were one of first impression the

Court might have decided the issue of the degree of the claimant's

disability differently, Hofacker v. Weinberger , 382 F.Supp. 572

(S.D.N.Y. 1974); it can not displace the Administrative Law Judge's

finding when supported by the evidence and when the Administrative Law

Judge had the advantage of evaluating the claimant's demeanor at the

administrative hearing. Suffice it to say, this was a matter on which

there was a conflict in evidence and that conflict has now been resolved

by the trier of fact. Arkansas Louisiana Gas Company v. Right of Way 80

Feet in Width , No. 74-1534 (10th Cir., 1975) (review of administrative

finding by land commission).

Law

Judge had the advantage of evaluating the claimant's demeanor at the

administrative hearing. Suffice it to say, this was a matter on which

there was a conflict in evidence and that conflict has now been resolved

by the trier of fact. Arkansas Louisiana Gas Company v. Right of Way 80

Feet in Width , No. 74-1534 (10th Cir., 1975) (review of administrative

finding by land commission).

After carefully examining the record on appeal and the briefs submitted

by the parties to this review, the Court has concluded that the findings

by the Secretary are supported by substantial evidence. This Court is

convinced that the record fails to disclose that the plaintiff's

impairment is of sufficient severity as to be disabling within the meaning

of the Social Security Act at the times in question. The Court would note,

however, that arthritis is a progressive disease and may so impair the

claimant's ability to engage in substantial gainful employment in the

future, that she can establish her right to disability benefits under the

guidelines of the Act at a later date. For the above reasons, the Court

must affirm the findings of the Secretary that the claimant's impairment

does not preclude her from engaging in substantial gainful employment

within the meaning of the Act.

It is so ordered.

[*] and blindness under title II

of the Social Security Act were recodified effective August 20, 1980. 45

Fed. Reg. 55566-55621 (1980) (to be codified in 20 CFR 404.1501-404.1598).

Section 404.1529 is a new regulation added as part of the recodification

to explain how pain and other subjective symptoms are evaluated. The

regulations cited in this Ruling have been renumbered and rewritten as

part of the recodification, but not substantively changed.