numb when he stands (tr. 37-38); his hips and legs hurt when he sits (tr. 38); his side hurts (tr. 40); he falls from fainting (tr. 41); his memory is poor (tr. 42); and he sleeps poorly (tr. 40). Plaintiff's physician has concluded that he is not able to work. Tr. 114.
The ALJ very mechanically applied Regulation 404.1513, Rule 201.23, table 1 of Appendix 2, Subpart P, Regulation No. 4 and Regulation 416.913, Rule 201.23, table 1 of Appendix 2, Subpart I, Regulation No. 16, Title 20 C.F.R. 404.1513 and 416.913 in finding that plaintiff was "not disabled." Both of these regulations provide, however, that a finding of "disabled" is not precluded in the plaintiff's category for an individual who does not meet all of the criteria of a specific rule, and who does not have the ability to perform a full range of sedentary work. In this case, due to the inability of the plaintiff to travel, he cannot perform the full range of work defined as sedentary. This is a subjective test as opposed to an objective or "general person" test as applied by the ALJ.
The plaintiff established a prima facie case of disability in that he could not perform his prior work. The plaintiff's physician stated that he could not work, and the one-time examining physician for the Secretary made no conclusion whatsoever on the question of whether plaintiff could work. When there is evidence of an expert medical opinion of the treating physician that the plaintiff is unable to work, a contrary finding by an ALJ in the absence of conflicting medical opinion is in the realm of speculation. Walston v. Gardner, 381 F.2d 580 (6th Cir. 1967). Once the plaintiff made a prima facie case of disability with his physician's testimony, in order to rebut this evidence there must be expert medical opinion as to whether or not the plaintiff is capable of working and as to what he can do. Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir. 1979); Rossi v. Califano, 602 F.2d 55 (3d Cir. 1979). Not only did the ALJ substitute his own opinion for that of a qualified physician, but no vocational expert was ever called to testify in this case. Where the plaintiff testifies that he cannot do his former work, the burden of producing a vocational expert must rest with the ALJ, and is essential to support the affirmance of the ALJ's findings. Garrett v. Richardson, 471 F.2d 598 (8th Cir. 1972). In this case, the only competent medical testimony which goes directly to the question of the plaintiff's capacity to work is to the effect that he cannot work at all.
While the ALJ found that the plaintiff showed no distress at the hearing, he makes no mention of the fact that at the end of the hearing the plaintiff asked if he could take a pill. Tr. 40. In addition, there was no finding of fact as to the effect of the plaintiff's pain, which even unaccompanied by objectively observable symptoms may nevertheless be very real and intense as to be disabling and will support a claim for disability benefits. Bittel v. Richardson, 441 F.2d 1193 (3d Cir. 1971).
The Secretary has failed to carry her burden of proof and there is no substantial evidence of the possibility of alternative employment. Rossi v. Califano, supra, 602 F.2d at 59.
Accordingly, we make the following
Now, this 21st day of April, 1980, IT IS RESPECTFULLY RECOMMENDED that the plaintiff's motion for summary judgment should be GRANTED, and the Secretary's motion for summary judgment should be DENIED.