plaintiff was not entitled to disability benefits. There is evidence in the hospital record that the plaintiff has joint involvement throughout his body accompanied by pain. Yet, the ALJ found that this was not sufficient to establish a disabling impairment function. As noted in Bittel v. Richardson, id. 1195, the Secretary's regulations, 20 C.F.R. 405.1502(a), require the determination of disability must be made from "all the facts". This necessarily includes subjective factors as well as clinically observable findings.
The plaintiff established that he could no longer perform his former employment, thus the burden of going forward to establish that the plaintiff could perform other employment shifted to the Secretary.
While we are limited in our review to a determination of whether or not the record as a whole contains substantial evidence to support the decision of the Secretary, Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971), we cannot escape our duty to scrutinize the record as a whole to determine whether the conclusion reached by the Secretary has a reasonable basis in law. Hicks v. Gardner, 393 F.2d 299, 302 (4 Cir. 1968).
At no time during the hearing or in the written decision of the ALJ did he find that the plaintiff was not a credible or believable witness. None of the plaintiff's complaints of pain are contradicted by any of the medical evidence, and there is no evidence from which the ALJ could find that the plaintiff was exaggerating his inability to sit or walk for any appreciable period of time.
The ALJ, in his hypothetical question to the vocational witness, asked him to assume that the combination of all of the plaintiff's impairments would not medically contra-indicate light or sedentary work activity.
From this assumption, the vocational witness stated that the plaintiff had a background which would qualify him for work in small appliance repairs, vending machine parts repairs, telephone field repairs; or he could work in a distribution area with an electronics related firm as a salesman, parts man, or counter man in the area.
In another hypothetical question, the vocational witness was asked to assume that all of the plaintiff's medical symptoms could be medically demonstrated from the record. It was the opinion of the vocational witness that the plaintiff would not be able to perform any of the jobs previously listed because they require at least seven and one-half (7-1/2) and eight (8) hour endurance per day on a five (5) day basis. He could only perform such jobs in a sheltered employment where he could work for two (2) hours and nap for two (2) hours. (tr. 115, 116).
The three-fold test for determining disability requires: (1) a medically determinable physical or mental impairment which has or will last at least twelve (12) months; (2) inability to engage in any substantial gainful activity; and (3) the inability must be by reason of the impairment. Garrett v. Richardson, 471 F.2d 598, 599-600 (8 Cir. 1972). Before reaching a conclusion that the plaintiff can perform any substantial gainful activity, it is important that common sense be applied to the facts as well as the regulations of the Secretary. Substantial gainful activity is that which is both substantial and gainful and within the plaintiff's capability, realistically judged by his education, training and experience. Yawitz v. Weinberger, 498 F.2d 956, 959-60 (8 Cir. 1974). It cannot be doubted that the plaintiff in this case is theoretically qualified to perform (by his training as an electrician) many of the positions found by the vocational witness to be available to the plaintiff. However, there is not a scintilla of evidence in this record to support the conclusion that the plaintiff has the capability to stand, walk or sit for any appreciable length of time, or that he can grasp a tool with the strength necessary to perform the repair jobs enumerated by the vocational witness. His frequent hospitalizations and blackouts all militate against regular employment.
The mere fact that he has made an admirable attempt to rehabilitate himself by attending college in spite of his many impairments and under the most distressing circumstances, should not be held against him as indicating his unavailability to work.
The very course of study he is pursuing, Rehabilitative Counseling, indicates plaintiff is attempting to help himself and others similarly situated. The college situation is an elective activity being pursued by the plaintiff whereby he does not have to stand or sit for more than an hour and fifteen (15) minutes, and cannot be compared with any employment situation where the plaintiff would not have the freedom of choice to leave after such a brief interval of work. The plaintiff has demonstrated that he possesses an abundance of vocational motivation. Brinker v. Weinberger, 522 F.2d 13 (8 Cir. 1975). The fact that he is seeking vocational rehabilitation should inure to his benefit and not to his detriment. Alexander v. Weinberger, 536 F.2d 779 (8 Cir. 1976).
In summary, the combination of the medical evidence and the plaintiff's subjective symptomatology all support his claim that he is totally disabled and unable to perform any substantial gainful activity. Yawitz v. Weinberger, supra.
Accordingly, we make the following
Now, this 19th day of September, 1977, IT IS RESPECTFULLY RECOMMENDED that the plaintiff's motion for summary judgment should be GRANTED, and the defendant's motion for summary judgment should be DENIED.
RICHARD A. POWERS, III UNITED STATES MAGISTRATE