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GRETH v. CALIFANO

October 28, 1977

DONALD E. GRETH
v.
JOSEPH A. CALIFANO, JR., Secretary of Health, Education and Welfare



The opinion of the court was delivered by: LUONGO

 Plaintiff, Donald E. Greth, brought this action pursuant to 42 U.S.C. ┬ž 405(g), seeking review of the denial by the Secretary of Health, Education and Welfare of his claim for disability insurance benefits. Before me for approval is the United States Magistrate's Report and Recommendation, *fn1" which concludes that summary judgment should be entered in favor of the plaintiff. For the reasons stated in this opinion, I am unable to approve the Magistrate's Recommendation, and I will instead remand the case to the Secretary for certain additional findings of fact.

 Plaintiff's initial application for benefits was denied. A hearing was then held before an Administrative Law Judge in August, 1975. At that hearing, plaintiff testified that he suffers from various infirmities, including diabetes, obesity, loss of vision in one eye, high blood pressure, degenerative disc disease, arthritis, and nervousness. Report and Recommendation at 2. In particular, plaintiff testified that he is unable to sit for more than ninety minutes and that he is unable to stand for one hour. Id. At a later point in the hearing, the ALJ posed two hypothetical questions to the vocational expert who testified at the hearing. First, the expert was asked to assume that Greth had diabetes and loss of vision in one eye, and that medium, heavy, or very heavy work was therefore medically contraindicated, but that light or sedentary work was not contraindicated. Transcript of Hearing at 71, Administrative Record at 107. Based on these assumptions, the expert responded that Greth was capable of performing light or sedentary work. Id. 72, Administrative Record at 108. Then, the ALJ asked the vocational expert to "assume that the claimant's total presenting symptoms as described by him" were medically demonstrable. Id. 78-79, Administrative Record at 114-15. On the basis of these assumptions, the expert stated that Greth was incapable of performing even light or sedentary work. Id. 79, Administrative Record at 115. He pointed out that Greth was capable of performing sheltered employment "where a person could work for two hours and nap for two hours," id. 80, Administrative Record at 116, but, as the ALJ noted, sheltered employment does not constitute substantial gainful employment.

 The ALJ found that plaintiff was capable of substantial gainful employment, and was therefore ineligible for benefits. Decision of ALJ at 17-18, Administrative Record at 23-24. The Magistrate now urges in his Report that (1) the ALJ found plaintiff to be a credible witness, (2) plaintiff's testimony, if credited, showed that he was incapable of performing even light or sedentary work, and (3) plaintiff is therefore entitled to summary judgment. I cannot accept this conclusion, for I am not persuaded that the ALJ ever resolved the issue of plaintiff's credibility. Only a single opaque paragraph in the ALJ's decision adverts to plaintiff's credibility:

 
"The undersigned does not doubt the claimant has some pain. The quality, duration and severity of the discomfort are, of course, known only to the claimant. However, while the allegation that there is an impairment cannot be disputed, nevertheless, the remaining functional capacities demonstrated by medical findings of record, adequately negate a finding of significant physical limitation due to structural change and/or significant pain and discomfort. Pain alone is not the anatomical, physiological or psychological evidence required to support vocational incapacity at the statutory level, lacking persuasive indications that the pain results from 'anatomical, physiological or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.' 20 C.F.R. 404.1501(c)." Decision of ALJ at 15, Administrative Record at 21.

 This language could be taken to mean that the ALJ declined to pass on plaintiff's credibility, acting on the (erroneous) premise that undocumented subjective reports of even severe pain or discomfort, however credible, are by themselves insufficient to demonstrate entitlement to disability benefits. See generally Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir. 1971); Parsons v. Secretary of HEW, No. 76-2619, slip op. at 6-7 (E.D. Pa. Sept. 28, 1977); Rusnak v. Mathews, 415 F. Supp. 822, 824 (E.D. Pa. 1976). I am reluctant to address the merits of this case in the absence of an express finding by the ALJ on the credibility of plaintiff's subjective reports of pain and discomfort. See generally, e.g., Roberts v. Califano, 439 F. Supp. 188, slip op. at 3-5 (E.D. Pa. 1977). Accordingly, I will remand this matter for the entry of appropriate findings of fact.

 ALFRED L. LUONGO / J.

 ORDER

 This 28th day of October, 1977, it is

 ORDERED that the record is Remanded to the Secretary for further proceedings in accordance with this Opinion.

 ALFRED L. LUONGO / J.

 APPENDIX A

 REPORT -- RECOMMENDATION

 September 19, ...


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