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January 18, 1979

Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare

The opinion of the court was delivered by: DITTER


This is an action brought under section 205(g) of the Social Security Act, 42 U.S.C. ┬ž 405(g), seeking review of a final decision by the Secretary of Health, Education and Welfare which denied plaintiff's claim for a period of disability and disability benefits. Both parties have moved for summary judgment. After reviewing the record on appeal and the briefs of counsel for claimant and for the government, I find that the Secretary's decision was not supported by substantial evidence, that both motions must be denied, and that the case must be remanded to the Social Security Administration for further proceedings.

 Claimant is now 56 years of age. He has a 10th grade education, and he has worked in the past as a welder, a forklift operator, a mechanic, and a construction laborer. His application for disability insurance benefits stated that he had been unable to work since January 16, 1974, because of nerves, a back problem, and a depressive neurosis. He also claimed that he had suffered from disabling pain in the left shoulder since January of 1975.

 Relying on these ailments, claimant first applied for benefits on February 11, 1975. After initial denials, claimant requested a hearing before an Administrative Law Judge. Significantly, Mr. Warmijak waived his right to appear and failed to offer any witnesses on his behalf. Thus, the Administrative Law Judge considered the case solely on the available documentary evidence, and issued a decision denying benefits on November 4, 1976. At no time during the administrative process was claimant represented by counsel.

 Claimant also complained of blackouts and dizzy spells, and a hospital record of October 6, 1975, indicates that he did indeed blackout. This problem, however, was not thought to be associated with exertion. Rather, the treating physician was of the opinion that Warmijak's blackout was an emotional reaction to his impending discharge. The hospital records also contain diagnoses of depressive neurosis and alcoholism with its attendant physical deterioration. Finally, the Administrative Law Judge noted that claimant had been an active participant in group and individual therapy sessions, that he was relating well to staff and residents, and that he was faithful to his machine shop assignment as well as his personal hygiene routine.

 On the basis of these records, the Administrative Law Judge concluded that Mr. Warmijak's alleged physical and emotional problems, singly or in combination, were not of such severity as to have prevented his working for a continuous period of twelve months. In my view, the present record provides an insufficient basis for such a conclusion.

 It is true that a claimant for Social Security Benefits has the burden of proving his disability. Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1972); Valentine v. Richardson, 468 F.2d 588 (10th Cir. 1972). Nevertheless, an Administrative Law Judge is not without responsibility for developing a complete and accurate factual record, particularly where, as here, the claimant is not represented by counsel. *fn1"

 In Hess v. Secretary of Health, Education and Welfare, 497 F.2d 837 (3d Cir. 1974), the claimant arrived at his hearing unaccompanied by counsel and unable to produce either physicians or medical reports on his behalf. As in the instant case, the medical evidence consisted solely of hospital records. Acknowledging the claimant's burden, the Court of Appeals stated, nevertheless, that in light of the "beneficent purposes" underlying the Social Security Act, a "more tolerant standard" should be employed in these administrative proceedings than that applicable in a court of law which operates under the adversarial system. Hess v. Secretary of Health, Education and Welfare, supra, 497 F.2d at 840. While it would not always be the Administrative Law Judge's duty to secure current medical evidence, the Court stated that "some lesser effort might be employed, such as advising the claimant of the importance of this information and suggesting that it be submitted at a later date." 497 F.2d at 841. The panel further noted that "after remand the Social Security Administration might avail itself of its right to have an examination by a physician of its own selection." Id. at 841.

 The instant case cries out for the "lesser effort" spoken of by the Hess court. Mr. Warmijak lacked the benefit of counsel, and he could produce neither the testimony nor the reports of physicians on his behalf. Moreover, he waived the right to appear at his hearing. Instead, he sent the Administrative Law Judge a letter, stating that he wished to offer further evidence in the form of a personal diary in which he had chronicled the symptoms of his ailments on a daily basis for a period of about one month.

 This is especially true in light of the fact that the most recent hospital records before the Secretary covered a period which ended more than a year before the Administrative Law Judge rendered his decision in this case. Thus, the hospital records were not only sparse, they were also outdated, and it was incumbent upon the Secretary at least to advise the claimant that he should amplify the medical evidence offered in support of his claim. *fn2"

 There are other reasons as well to doubt that the Secretary's conclusions regarding claimant's vocational abilities were supported by substantial evidence. The Administrative Law Judge made a specific finding that "(t)he claimant retained the physical capacity before September 30, 1976 to return to his former types of employment." Finding of Fact No. 4, Tr. at 10. First, it is difficult to see how the hospital records could possibly support such a conclusion when the latest hospital report available covered a period ending on October 23, 1975.

 Secondly, what little evidence existed in the record apart from the hospital reports seems to contradict the Secretary's finding. The claimant's "former types of employment" included welder, forklift operator, mechanic, and construction laborer. It was apparently undisputed that his last employment occurred during the month of July in 1974. At that time, he worked as a construction laborer ...

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