pain provoked by ephermeral causes on haphazard days.
The plaintiff has given evidence of his inability to perform construction work even as a foreman. He has produced evidence of his inability to perform very light work even around the house. But even his statement reported to the Hearing Examiner that he felt he could do light work on some days, as a fact in itself, would not prevent his eligibility for disability insurance benefits. Intermittent, sporadic or infrequent activity does not constitute ability to engage in substantial, gainful activity precluding establishment of disability under this chapter of the Act. Campbell v. Flemming, D.C.Ky., 1961, 192 F.Supp. 62; Randall v. Flemming, D.C.Mich., 1961, 192 F.Supp. 111. In other words, substantial gainful activities precluding establishment of disability within this chaper means performance of substantial service with reasonable regularity in some competitive employment and does not contemplate complete helplessness. Campbell v. Flemming, supra; Roop v. Flemming, D.C.Va.1960, 190 F.Supp. 820; Ellerman v. Flemming, D.C.Mo., 1960, 188 F.Supp. 521. Substantial gainful employment is not to be taken to mean total, absolute, complete full-time activity for hire or compensation. It means a significant quantity of fairly constant physical, mental or mixed physical and mental service productive of value or benefit. It means employment that has substance.
It is not the burden of the plaintiff to introduce evidence which negatives every imaginative job open to men with his impairment, and for his age, experience and education. It is enough if he offers evidence of what he has done, and that he no longer has the ability to do that kind of work for specific reasons, and of his lack of experience or education for doing other jobs which, if any, are available to him in the area, and for which he is suitable. It is then the burden of the defendant to produce evidence from which a finding can be made that the plaintiff can do some kind of work. Ellerman v. Flemming, supra; Parfenuk v. Flemming, D.C.Mass., 1960, 182 F.Supp. 532. The claimant's burden is merely to prove that as the result of his medically determined impairment, he is no longer capable of performing a substantial amount of work commensurate with his training, education and experience, or that he lacks ability to do any amount of the kind of work he has done, or for which he had been trained. Parfenuk v. Flemming, supra.
Under the term 'disability' in the Social Security Act, the term has the definite meaning of '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 to be of long-continued and indefinite duration.' Farley v. Ribicoff, 203 F.Supp. 721, W.Pa.D.C., 1962.
On review this Court has the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying or reversing the decision of the Secretary with or without remanding the case for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence shall be conclusive. 42 U.S.C.A. § 405(g). The Court is not free to substitute its inferences for those of the referee provided they are supported by substantial evidence. Livingstone v. Folsom, 234 F.2d 75 (3rd Cir., 1956). In examining the record then this Court looks to whether or not the determination by the Secretary is supported by substantial evidence that the plaintiff has not the ability to 'engage in any substantial gainful activity' because of the impairment of which he complains, which impairment is of such character that it 'can be expected to result in death or to be of long-continued and indefinite duration', and what is extremely important, whether there was substantial evidence to support the Secretary's finding of 'medically determinable physical or mental impairment'?
It is significant that the doctors did not personally testify before the Hearing Examiner, and that he relied upon their written reports which were meager for the most part. These leave much to questioning and speculation. The pivotal problem before the Secretary was that concerning the pain of the plaintiff. The Examiner, in fact, recognized this.
In the opinion, the Examiner concluded that the ability or disability to perform gainful employment depended in greater part, upon the severity of the pain endured. There is no question here as to whether pain existed. The question here before the Examiner was how much pain existed. The Examiner has accepted the existence or quantitative physical impairment in the cervical areas, but not being clear on the qualitative physical impairment, the Examiner abandoned its determination by rejecting it altogether.
The earnest and frankly open admission by the Examiner that medical evidence was 'not clear' may not be shrugged off by saying (Examiner's Opinion, Page 8, Record Page 13), 'such objective findings in the opinion of the Examiner does not warrant and conclude that a severe physical impairment exists'; because (1) it is not the function of the Examiner to ascertain that a 'severe' physical impairment exists, but rather that such physical or emotional impairment does or does not exist which prevents the applicant from substantial gainful employment for an indeterminable or long-continued period of time, and (2) because also, the evidence of 'objective findings' was lacking to the Examiner to support his decision. Neither is the statement and finding of the Examiner (Examiner's Opinion, Page 9, Record Page 14) warranted that 'he (plaintiff) has indicated his willingness to accept any vocational rehabilitation program offered to him, and it may well be that he would be wise to surrender any desire to return to the high wage opportunities of a heavy equipment operator on construction work. That choice, however, is his to make.' So while the Examiner's premise
is almost correct, his conclusion is not.
The plaintiff's case alone would support an award on disability, but the defense of quantitative and qualitative 'malingering' could, if proven, defeat an award. This then is the issue.
It is the opinion of this Court that the plaintiff has met his burden of proof sufficiently enough not to be foreclosed from any insurance rights which he may actually have, except upon substantial evidence as may properly support a contradiction of the plaintiff. This should be based upon evidence and findings of the Secretary as to medically determinable, physical or emotional impairment which can be expected to be of long-continued and indefinite duration, as it relates to the ability of the plaintiff to engage in any substantial gainful employment. But it must not be a conclusion or mere speculation.
Nor can the argument by the defense attorney that the term 'whiplash' injury is a lay term minimize the testimony produced by the plaintiff. The term 'whiplash' injury has come to be used quite frequently by doctors, and has come to indicate a specific kind of injury. In fact, even the statement that it is a lay term may well be disputed.
Within the experience of this Court in cases involving related neck and spine injuries, the term has invariably been used for the most part by doctors who testify as expert witnesses.
Since the basic question is whether the plaintiff's pain is of such maximal degree, as claimed by the plaintiff, or is of such minimal degree, as admitted by the defendant, or as may have been commented upon by the Examiner, it was essential that a determination be made of its character, the extent and possible continuance, in the realm of the dispute between that accepted by the defendant and of that complained by the plaintiff, so as to bring it within or exclude it from the meaning of disability for substantial gainful employment, pursuant to the provisions of the Social Security Act. It would seem then that this must rest on the question of whether the disputed pain is real, emotional or malingering. It is the expression of experts that emotional pain can be as disabling as organic pain, when the one who suffers it feels it as if it were real pain.
In such a case, disability would result and could disable such a person from substantial gainful employment within the meaning of the Social Security Act.
In this day of scientific and medical achievement, there are numerous medical experts in the field who may examine and test a complaining person objectively and determine with reasonable accuracy the reality and genuineness of a person's subjective complaints, and as well, if any pain exists, its character and extent.
Although as between organic and emotional pain, certain instances may not be tested to determine which may be causing the pain, nevertheless, the pain in both may be as real and as disabling. If the plaintiff in this action is malingering qualitatively, medical tests and objective findings should have been available through medical experts, and should have been presented as evidence. Failing this, the Secretary lacks substantial evidence to support his decision.
Is there any indication of what causes the plaintiff's pain? Is the pain organically caused or emotionally caused, or is it an admixture of both? Evidence should give first substantial indication, medically determinable, of the character and extent of any physical or emotional impairment which can be expected to be of long-continued and indefinite duration, as relating to disability on the part of the plaintiff for substantial gainful employment. If disabling pain does occur, as is quantitatively admitted by the defendant, then its degree should be established, so that, after subtracting the disability, an indication might be had of whatever ability then remains as may be translated into gainful employment. This should be further supplemented by an example of what gainful employment would consist and whether this gainful employment is available as competitive opportunity in the area in which the plaintiff labored and lives.
In giving consideration to the record in this case, this Court is mindful of what Judge Kalodner of the Third Circuit in Goldman, Administrator of the Estate of Goldman v. B. Folsom, 246 F.2d 776, 778, 1957, said:
'In discharging that the duty we must keep in mind, as adjured by the Supreme Court, that 'courts must now assume more responsibility for the reasonableness and fairness' of decisions of federal agencies 'than some courts have shown in the past' and 'Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function.' Universal Camera Corp. v. National Labor Relations Board, 1951, 340 U.S. 474, (475) 490, 71 S. Ct. 456, 466, 95 L. Ed. 456.'
Pursuant then to the provisions of the Social Security Act, Section 405(g), this case is remanded to the Secretary with orders to take additional testimony, and after hearing, make findings of fact and decisions thereon, and further to file with this Court, such additional record and findings of fact and decisions as then made.