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April 17, 1980

Joseph D. MILLER, Plaintiff,
Patricia Roberts HARRIS, Secretary of Health, Education and Welfare, Defendant.

The opinion of the court was delivered by: ROSENBERG SENSENICH


On August 29, 1979, this action was referred to United States Magistrate Ila Jeanne Sensenich in accordance with the Magistrate's Act, 28 U.S.C. § 636(b) (1), and the Local Rules for Magistrates. The Magistrate's Act allows the parties ten (10) days from the date of service to file written objections to a report and recommendation.

 The Magistrate's report and recommendation was filed on March 12, 1980, and recommended that the plaintiff's Motion for Summary Judgment be denied, that the defendant's Motion for Summary Judgment be denied, and that the action be remanded to the Secretary for reconsideration. Service of the report and recommendation was made on plaintiff's counsel on March 13th, and on defense counsel on March 13th. By court order dated March 31st, the parties were allowed until March 31st to file objections. Objections were filed by the defendant on March 31st.

 I have carefully examined the Magistrate's report and recommendation, as well as checked the record for verification of the factual conclusions set forth by the Magistrate. I find these to be specifically and pertinently accurate.

 While the Secretary contradicts the meaning of Lewis v. Califano, 616 F.2d 73, C.A. 3, 1980, and argues that the burden is upon the plaintiff in a case such as this to prove liability on the part of the Secretary, as well as to procure a re-examination in light of additional evidence as may have been presented, I deem the Magistrate's analysis of the evidence as presenting the facts in the case originally and before the Administrative Law Judge to be basic. It is true that the Secretary through the processes of the Administrative Law Judge, the Council and eventually the Secretary giving final approval of the decision, is obligated to determine the credibility of witnesses and whether or not a plaintiff has by appropriate evidence established a right to benefits under the statute. But the law does not rest there; the Administrative Law Judge, the Council and the Secretary must have evidence which supports the findings eventually made by the Secretary, and that the reviewing court is bound by the findings of the Secretary if they are supported by "substantial evidence". Kuykendall v. Celebrezze, 231 F. Supp. 890 (W.D.Ark.1964); Collier v. Celebrezze, 240 F. Supp. 274 (S.D.Idaho, 1965); Baith v. Weinberger, 378 F. Supp. 596 (E.D.Pa.1974). However, the review court also has a legal responsibility.

 Judge Kalodner in Goldman, Administrator of the Estate of Goldman v. B. Folsom, 246 F.2d 776, 778, C.A. 3, 1957, said:

"In discharging that 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."

 It is the duty of the reviewing court to see to it that such a determination is not based upon speculation or surmise. There must be both credible and substantial evidence upon which a finding by the agency is based, otherwise it has no validity in law.

 In the present instance, the Administrative Law Judge stated that the plaintiff's evidence was credible and substantial. The Administrative Law Judge found the plaintiff's testimony of back discomfort and pressure to be credible, but concluded this did not restrict his physical ability to perform sedentary work. I have searched the record to ascertain just where the Administrative Law Judge had any evidence before him which would support such a finding. Thereafter the Administrative Law judge depended upon the testimony of Dr. Karn, the vocational expert, who stated that if the Administrative Law Judge should find that the plaintiff could lift up to "10 pounds occasionally" or "could sit up to an hour and a half", even though he had some anxiety and depression, that there was a "fairly wide range of sedentary jobs" the plaintiff could perform which would include inspector jobs, assembly jobs, checking jobs and the like, production jobs, loading film for developing and processing, preparing orders for mailing, writing up orders, working at a semi-clerical job and packing orders for shipment. These were jobs which were usually performed in a sitting position, although such work did not require a person to sit. However, such an employee would not be able to walk around or leave his work station. All of these jobs exemplified jobs which the plaintiff testified he could not do because of his physical limitations and restrictions. No doctor testified to the fact that the testimony of the plaintiff was incredible, or contrary to medical knowledge. Since such contradictions exist in the record they present a deficiency in any support upon which the findings of fact were based by the Administrative Law Judge and as then were approved by the Council, and eventually the Secretary.

 Under these circumstances, the law will not support the defendant's contention. The law was not intended to deal injustices to a needy petitioner in social security cases. It was intended that the Secretary should look fairly and reasonably upon the basic claims as made by those who suffer pain and inability. It is for the Secretary to examine credibility and set forth the facts specifically, so that the district court on appeal might be able to see the true facts of the case for a fair and just determination.

 Under these circumstances, the Report and Recommendation of the Magistrate will be respected and adopted together with this Supplemental Memorandum as the opinion of this Court. The case will be remanded for reconsideration by the Secretary in accordance with the Report and Recommendation of the Magistrate and this Supplemental Memorandum of this court.

 March 12, ...

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