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MOSEY v. CALIFANO

April 12, 1980

Laura A. MOSEY, Plaintiff,
v.
Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant.



The opinion of the court was delivered by: ROSENBERG SENSENICH

SUPPLEMENTAL MEMORANDUM

Laura M. Mosey, the plaintiff, filed this appeal from the decision of Joseph A. Califano, Jr., Secretary of Health, Education and Welfare, after a line of appropriate administrative procedure. The facts of this case are well recited by United States Magistrate Ila Jeanne Sensenich to whom the case was originally referred for inquiry, Report and Recommendation. The Magistrate filed her Report and Recommendation and provided sufficient notice to the parties to file objections to such report and recommendation. None were filed.

 In the Magistrate's report and recommendation, she states that the Administrative Law Judge failed to give his reasons for finding that the plaintiff could return to certain jobs "in light of Dr. Crider's report . . ." She suggested that a more detailed analysis appears to be required by the Court of Appeals. Baerga v. Richardson, 500 F.2d 309, C.A.3, 1974. Furthermore, she notes that the Administrative Law Judge failed to make any finding as to the plaintiff's credibility as required by Kephart v. Richardson, 505 F.2d 1085, 1089-1090, C.A.3, 1974. She notes additionally that the Administrative Law Judge "made no finding that she suffered from diffuse degenerative disc disease of the lumbar spine although this diagnosis was well documented by X-rays. (Tr. 207, 214, 124, 248)." She indicates that he made no finding that "she suffered from chronic irritable bladder syndrome (Tr.124), anxiety neurosis (Tr. 129), spastic bowel syndrome (Tr. 129), and obsessive compulsive phobic reaction (Tr. 237)." She concludes properly that since these matters were not included in his findings nor did he give any reasons in his discussion, that much is left by the Administrative Law Judge to speculation.

 It is unnecessary that I detail the numerous physical ailments and difficulties that the plaintiff underwent in the past many years and the number of doctors she had consulted and from whom she had had treatment, as well as the hospitalizations that she required for help insofar as all her ailments were concerned. In addition to the variety of physical ailments that she suffered, she also suffered the fear of going outside her home, and that this started in 1959 and had continued up to the time of the hearing on April 11, 1978; that her fear kept getting worse and worse; that she testified that she had been treated by Dr. Richard Clark, a psychiatrist who had since died; that his treatment helped her some but that she wanted to get over her problem completely; that she had been unable to get her medical records from Dr. Clark's estate, and that she saw several doctors regarding her phobia and that the other doctors did not believe her. She testified also that she had not been able to afford another psychiatrist.

 The Magistrate also discussed the testimony of Dr. Kenneth F. Rhodes, a psychologist and Dr. Donald B. Crider, a psychiatrist. While the record indicates that the psychologist's report is not too clear, it is obvious that he concluded that the plaintiff demonstrated average intellectual abilities accompanied by acceptable academic achievement patterns with no severe evidence of psychological impairment, and that her social contacts were within the acceptable range. The psychiatrist, Dr. Crider, would not be committed to an opinion because he said the plaintiff's fears could not be documented by a psychiatric interview only. He did indicate from what he had gathered from her statements and those corroborated by her husband, that she suffered from "obsessive compulsive phobic reaction". Thus she appeared to be severely functionally impaired. The inference to be drawn from Dr. Crider's testimony seems to be that a series of psychiatric examinations or more attentive examination is required in order to determine the character and degree of phobic incompetence, if any such exists.

 The Administrative Law Judge concluded, nevertheless, that the plaintiff could perform duties of her usual occupations and therefore is not entitled to supplemental security income. The Appeals Council and the Secretary affirmed and that decision was appealed to this court.

 Within the meaning of the term "disability", the statute provides that

 
"(A) 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 which has lasted or can be expected to last for a continuous period of not less than 12 months . . ." 42 U.S.C. § 423(d)(1).

 Furthermore, the statute provides that "a "physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).

 Thus, we see that not only physical but mental or psychological abnormalities come within impairment or disability for which Congress provided.

 While this plaintiff testified to a long list of physical problems, that she has had hospitalization at the Altoona Hospital from February 17 to March 6, 1976 and before that from August 24 to September 10, 1966, her phobic manifestations commenced in 1959 to such an extent that she has for a long time been unable to walk outside the house and has a fear of leaving the house. It was that which then interfered with her ability for gainful employment as a waitress, her latest and evidently last outside employment.

 The words in the statute ". . . any medically determinable . . . mental impairment . . ." recognize what we all know as painful affliction in varying degrees which may be brought on by fear, apprehensions, fright, and different characterizations of mental anguish. The statute unquestionably includes phobic manifestations and their resultant afflictions. Much of the physical manifestations are supported by the testimony of various doctors. However, since there is no actual contradiction in her testimony, other than the fact that the various doctors in other specialities could not verify or corroborate her phobia to which she testified, if such exists, it is her own testimony and her husband's testimony which stands in a sense, but in reality not contradicted.

 The psychologist's testimony superficially from his examination of the plaintiff dealt only with the plaintiff's personal mental manifestations, since psychology deals only with the science of the mind or mental phenomena and its activities, as well as mental processes or behavior. Webster's Third New International Dictionary, Unabridged, 1971, at page 1833. It is the psychiatrist's conclusions and opinions with which the Administrative Law Judge should have dealt and given serious consideration to its medical impact, since psychiatry is a "branch of medicine that deals with the science and practice of treating mental, emotional or behavioral disorders especially as originating in endogenous causes . . ." Webster's Third New International Dictionary, Unabridged, page 1832. Psychiatry is "that branch of medicine which deals with disorders of the psyche." Dorland's Illustrated Dictionary, 1961, at page 1127. Thus it is noticeable that the psychologist is not a medical doctor as is a psychiatrist as required by Pennsylvania law. It is the medical opinion with which the Administrative Law Judge should be concerned as it relates to physical or emotional pain.

 While it is within the realm of the Administrative Law Judge to determine credibility, such credibility must be basic and the determination of the Secretary in such an action must be sustained if it is supported by substantial evidence. However, such substantial evidence requires that the Secretary's decision be founded on more than a mere scintilla of evidence and must be based on relevant evidence which a reasonable mind might consider adequate to support the conclusion. Memoli v. Califano, 463 F. Supp. 578 (S.D.N.Y.1978). Furthermore, the Secretary's determination cannot disregard the evidence, and if a determination is made, the Secretary must give reasons for his decision based upon adequate evidence which supports his conclusion. Smith v. Califano, 592 F.2d 1235, C.A.4, 1979. This latest requirement confirms what the United States Magistrate has already indicated in her report and recommendation.

 In a previous case I was called upon to consider pain as a possible cause for disability for substantial gainful employment. Lightcap v. Celebrezze, 214 F. Supp. 209 (W.D.Pa.1962). I then inquired into the character of pain as asserted and questioned whether it was real, emotional or malingering. I stated that objective evidence should have been available through medical experts and presented as evidence. Lightcap, supra, at page 215.

 The question of malingering has not been raised here and is therefore neither a matter for the Administrative Law Judge nor this court on appeal. That the plaintiff suffered real physical pain is obvious from the series of spinal ailments, surgery and resulting hospitalization with the attendant medical care which she required. It is logical that a person so suffering from physical being or existence, might have also become emotionally disturbed with the potential for emotional pain. The evidence does not clarify whether or not her phobic affliction came before her physical ailments and disabilities, but whether it did or not, it would not matter much because it is obvious to a person of ordinary common sense that the physical manifestations of pain, as this patient suffered them and detailed them, would aggravate her emotional condition.

 Most people to some extent suffer from some form of phobia like superstition, and with this we are all acquainted by reason of the publicity given to the bad luck when a black cat runs in front of a person, Friday the 13th as a day of which one must be wary, the breaking mirror causing bad luck, walking under a ladder as bringing misfortune, and others with which we are commonly familiar. All these are fears which clutch at a victim with varying degrees of minor agitation to even the severest suffering. This is common knowledge and we need no authority to support these as facts. What the plaintiff in this case testified to as an abnormal fear, frequently reported by other similar sufferers, appears to be not at all unreasonable, as such was corroborated by another witness or two. In any event, there is no substantive medical evidence in the record which in reality contradicts ...


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