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KATTES v. CALIFANO

June 27, 1980

Adolph KATTES
v.
Joseph A. CALIFANO, Secretary of Health, Education and Welfare



The opinion of the court was delivered by: SHAPIRO

MEMORANDUM AND ORDER

This action is an appeal under 42 U.S.C. ยง 405(g) from a final decision of the Secretary of Health, Education and Welfare ("Secretary") denying plaintiff's request to reopen a period of disability. Cross motions for summary judgment are now before the court.

 Between February, 1975 and January, 1977, the plaintiff received Social Security disability benefits and Supplemental Security Income based on a finding by the Secretary that he had suffered a cerebrovascular accident which prevented plaintiff from engaging in substantial gainful activity. (Tr. p. 27). His last employment prior to this disability was as a school custodian; before that he worked for more than twenty years as a laborer and a construction worker.

 In November of 1976, plaintiff was examined by Samuel P. Ivins, M.D., a specialist in psychiatry and neurology who served as a consultant to the Secretary. The purpose of the examination was to determine whether plaintiff continued to be eligible for disability benefits. Dr. Ivins found that the plaintiff then suffered from a cataract of the left eye, retinal edema of the right eye with constriction of the arteries, diminished motor strength in the left hand and arm, hyperactive deep reflexes on the left side and downgoing plantar reflexes on the right side. He recommended that plaintiff be placed in a vocational rehabilitation program and that his condition be reevaluated one year later. (Tr. p. 77). Based on this examination, the Secretary found that plaintiff's condition had improved to the point where he was able to engage in substantial gainful activity and therefore his disability ceased as of November 6, 1976. (Tr. p. 27).

 On December 21, 1976, plaintiff filed a request for hearing on the termination of his benefits. Upon reconsideration the Secretary refused to reinstate the benefits and plaintiff thereafter filed a request for review before an Administrative Law Judge ("ALJ"). (Tr. p. 31). Plaintiff was granted a hearing for the purpose of determining whether he was then able to engage in substantial gainful activity.

 Plaintiff waived his right to appear in person, or by representative at the hearing *fn1" and requested that a decision be made on the basis of the evidence in the record. The ALJ found that while claimant has diminished strength in his left extremity, these limitations, although precluding him from returning to his former work, did not preclude all substantial gainful activity on his part. Entitlement to benefits was denied as of January, 1977. It is that decision which is on appeal before us.

 In reviewing a denial of disability benefits the court must utilize a two-step process. First, it is necessary to determine the extent of the claimed physical or mental impairment; second, it must be determined whether that impairment results in an inability to engage in substantial gainful activity. Only then can it be decided whether the findings and conclusions of the ALJ are supported by substantial evidence on the record. Baker v. Gardner, 362 F.2d 864 (3d Cir. 1966); Rossi v. Califano, 602 F.2d 55 (3d Cir. 1979).

 A claimant for Social Security Act disability benefits satisfies his initial burden of proof by showing that he is unable to return to his customary occupation. Once such a showing has been made, the burden shifts to the Secretary to show that the claimant, given his age, education and work experience, has the capacity to perform specific jobs existing in the national economy. If there is no finding as to availability of that alternative employment which claimant is able to perform, a denial of disability benefits can only be sustained if there is medical evidence in the record that claimant's impairment did not prevent him from engaging in his former occupation. Rossi v. Califano, supra at 57.

 Dr. Rubin's report was not based on an examination of plaintiff but on a set of written hypothetical questions posed to Dr. Rubin by the ALJ. In response to these questions, Dr. Rubin stated that plaintiff was not able to perform any of those jobs which he had previously held. He also listed certain occupations in the area of light and sedentary work which might be available to one capable of performing those types of jobs. (Tr. p. 94).

 It is not enough for the Secretary to show that there are jobs which the claimant might be able to perform. To satisfy the government's burden of proof the Secretary must make a detailed inquiry to determine whether there exists a reasonable possibility that the impaired wage earner can compete with other workers for the jobs for which he is qualified. Baker v. Gardner, supra.

 In response to two questions Dr. Rubin described the abilities a person must have to perform light and sedentary work. Sedentary work he defined as:

 
"Lifting 10 pounds maximum and occasionally lifting and/or carrying such articles as dockets, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of standing and walking is often necessary in carrying out job duties. Jobs are sedentary if walking and ...

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