SSR 79-3c: SECTION 205(b) (42 U.S.C. 405(b)) HEARINGS AND APPEALS -- SELECTION OF HEARINGS EXAMINERS

20 CFR 404.921

SSR 79-3c

SCHWIDDER v. CALIFANO, 1A Unempl. Ins. Rep., ¶ 15,660 (N.D. Iowa,

11-21-77)

McMANUS, Chief District Judge:

This matter is before the court on claimant's unresisted September 26,

1977, motion to remand to the Secretary of Health, Education and Welfare

for the taking of additional evidence concerning claimant's alleged

disability and defendant's motion for summary judgment.

After a hearing on December 18, 1975, the administrative law judge denied

disability benefits. On June 23, 1976, the Appeals Council of the Social

Security Administration affirmed that decision making it the final

decision of the Secretary. On April 26, 1977, the defendant moved for

summary judgment.

In support of her motion to remand, claimant submitted a letter from her

physician dated September 12, 1977, restating a previous report on her

condition and adding information concerning new medical problems

afflicting claimant. There is no indication that these problems existed at

the time of the claimed disability. The new evidence may be grounds for a

new disability application; however, this court cannot now order the

Secretary to consider evidence which was never part of the record and

which in fact seems to be based on a malady which did not exist at the

time of hearing. Cf. Kemp v. Weinberger , 522 F.2d 967 (9th Cir.

1975).

Defendant moved for summary judgment asserting that the hearing examiner

and appeals council decisions were based on "substantial evidence." See Richardson v. Perales , 402 U.S. 389, 402 (1971); Roark v.

Califano , No. 77-1557 (8th Cir., October 13, 1977); Reams v.

Finch , 313 F. Supp. 1272 (N. D. Ia.

1970). [1] If the court agrees

that there is substantial evidence to support the decision, it must

affirm. Claimant bears the burden of proving by substantial evidence that

she is disabled. Easttam v. Secretary of Health, Education, and

Welfare , 364 F.2d 509, 511 (8th Cir.

1966)

k v.

Califano , No. 77-1557 (8th Cir., October 13, 1977); Reams v.

Finch , 313 F. Supp. 1272 (N. D. Ia.

1970). [1] If the court agrees

that there is substantial evidence to support the decision, it must

affirm. Claimant bears the burden of proving by substantial evidence that

she is disabled. Easttam v. Secretary of Health, Education, and

Welfare , 364 F.2d 509, 511 (8th Cir.

1966). [2] This court will not

balance the evidence or enter into de novo review.

The record in this case indicates that though significant evidence may

lie with claimant, there is substantial evidence to support the

Secretary's findings that despite serious gastrointestinal disorders,

recurrent spells of weakness and nausea, and complaints of swelling,

claimant's impairments were "not so severe so as to preclude all

competitive work activity for any continuous 12-month period." The hearing

examiner concluded that Mrs. Schwidder had the mental and physical

capacity to engage in substantial gainful activity and that jobs for which

she was suited existed in substantial numbers in the State of Iowa.

Specifically the record indicates that after an operation for a duodenal

ulcer and a subsequent reconstructive procedure in 1969, the claimant has

had gastrointestinal problems varying in degree from mild to serious. She

was evaluated at the Mayo Clinic in Rochester, Minnesota, in May 1975

where Dr. A. J. Cameron reported tests showed no ulcers. He stated that

she should be treated for dumping syndrome and could "return to any work

she feels able to tackle."

Her own physician, Dr. J. L. Powers, reports that she is "precluded from

any gainful employment in my medical opinion."

Dr. A. E. Montgomery reported that the claimant's prognosis was

essentially good "if properly motivated."

Claimant testified she becomes sick after doing housework and that her

spells of vomiting, swelling and weakness have been getting worse, and

that she suffers from constipation.

cian, Dr. J. L. Powers, reports that she is "precluded from

any gainful employment in my medical opinion."

Dr. A. E. Montgomery reported that the claimant's prognosis was

essentially good "if properly motivated."

Claimant testified she becomes sick after doing housework and that her

spells of vomiting, swelling and weakness have been getting worse, and

that she suffers from constipation.

From this record we cannot upset the Secretary's decision denying

benefits.

The claimant raises the unique argument that selection of hearing

examiners out of rotation prejudiced her claim. In conclusory manner, she

states that some administrative law judges (ALJ) have been excluded from

sitting on social security disability cases, thus violating her due

process rights. [3] Claimant

requests the court's permission to subpoena witnesses to testify regarding

the procedures for assigning ALJ for social security cases in Iowa. She

cites Ramspeck v. Trial Examiners Conf. , 345 U.S. 128 (1953) rehearing denied , 345 U.S. 931 for the proposition that regulations

relating to rotation must be clear and definite in putting the power of

assignment beyond the control or suggestion of litigating agencies. That,

however, would seem to be the theme of Justice Black's

dissent. [4]

The majority noted with approval that even within certain agencies,

examiners were classified as to expertise and competence and assigned to

different type cases. Id . at 134-135. It is not for the courts to

specify which examiners should sit in particular cases. That function is

"committed to the experience and expertise of the Civil Service Commission

. . ." Id . at 137.

Ensuring objectivity and freedom from the potential tyranny of agency

assignments is primarily the responsibility of the legislative and

administrative branches. Absent a showing that the ALJ's conclusions were

arbitrary or capricious, the court finds no reason to delve further into

administrative procedures.

e experience and expertise of the Civil Service Commission

. . ." Id . at 137.

Ensuring objectivity and freedom from the potential tyranny of agency

assignments is primarily the responsibility of the legislative and

administrative branches. Absent a showing that the ALJ's conclusions were

arbitrary or capricious, the court finds no reason to delve further into

administrative procedures.

There being no substantial factual issues, it is therefore ORDERED

1. Claimant's motion for remand for further hearings is denied.

2. Defendant's motion for summary judgment granted.

3. Claimant's request for hearings on her due process claim denied.

[1] In relevant part, 42 U.S.C.

405(g) (1976) provides:

"The findings of the Secretary as to any fact, if supported by

substantial evidence, shall be conclusive, . . ."

[2] 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. 42

USC § 423(d)(5).

[3] In relevant part 5 USC §

3105 (1966) provides that:

". . . Hearing examiners shall be assigned in rotation so far as

practicable . . . ."

[4] Justice Black,

dissenting:

In fact, the Administrative Procedure Act appears to contemplate that all

examiners employed by a particular agency stand on equal footing in regard

to service and pay. A central objective was to prevent agency heads from

using powers over assignments to influence cases. Unlimited discretion in

assignment would lead to subservient examiners, it was thought. 345 U.S.

at 145.