presented at the hearing before the ALJ held February 2, 1981. The ALJ concluded that the record did not contain any medical evidence prior to September 30, 1973, which would establish that Mrs. Musgrove had an impairment as of that time which would have prevented her from returning to her former job as a power sewing machine operator.
As discussed in the section of this memorandum concerning SSI benefits, Mrs. Musgrove, in 1973, was classified as disabled by the Commonwealth of Pennsylvania. On August 31, 1973, one month before the date on which Mrs. Musgrove was last insured for SSA purposes, the Pennsylvania Department of Public Welfare (DPW) moved to place her in the DPW "Aid to Disabled" category and the claim was processed and finalized on December 14, 1973. The ALJ gave no evidentiary weight to the state's determination of Mrs. Musgrove's disability in making his decision that she was not disabled before September 30, 1973. In addition, since the hearing the claimant has come into possession of summaries of certain records of the DPW which she was unable to previously obtain and which provide some insight into Mrs. Musgrove's condition before September 1973.
The Third Circuit has made clear that "[a]lthough findings by other agencies are not binding on the Secretary, they are entitled to weight and must be considered." Fowler v. Califano, 596 F.2d 600, 603 (3d Cir. 1979) (emphasis added); Charlton v. Schweiker, No. 81-2121, slip op. at 2 (E.D. Pa. Sept. 28, 1981).
Because the ALJ in this case did not take into consideration the prior evaluation of disability by the DPW and because newly-discovered evidence sheds light on Mrs. Musgrove's condition before September 30, 1973, the case must be remanded for further evaluation of Mrs. Musgrove's eligibility for SSA benefits. An order follows.
ORDER (June 18, 1982)
Upon consideration of the cross-motions for summary judgment submitted by claimant Flora Musgrove and the Secretary of Health and Human Services (Secretary), together with supporting and opposing memoranda of law and argument presented at a hearing on the motions, it is hereby ordered that:
(1) the motion of the claimant for judgment as to Supplemental Security Income (SSI) benefits is granted and judgment is entered in her favor;
(2) the motion of the claimant for judgment as to Social Security Disability benefits (SSA) is denied;
(3) the motion of the Secretary for judgment is denied;
(4) the decision of the Administrative Law Judge upholding termination of Supplemental Security Income (SSI) benefits is reversed and the case remanded to the Secretary for calculation of benefits due claimant and the payment of such benefits;
(5) the matter of SSA benefits is remanded to the Secretary for further determination and proceedings consistent with this opinion; including consideration of the prior determination of disability by the Pennsylvania Department of Public Welfare and an opportunity afforded claimant to present the records of the Pennsylvania Department of Public Welfare concerning its determination in 1973 of her disability.
ON MOTION FOR RELIEF FROM JUDGMENT
On June 18, 1982, I issued a memorandum opinion and order in this action which reversed the decision of the Secretary of Health and Human Services (Secretary) terminating claimant Flora Musgrove's Supplemental Security Income (SSI) benefits.
See Musgrove v. Schweiker, 552 F. Supp. 104 (E.D. Pa. 1982). In my decision I concluded, inter alia, that in a "termination" or "cessation" of benefits situation the burden of showing a disability remains on the claimant. If, however, a valid prior determination of disability was made by the Secretary, in the absence of any evidence amounting to a showing either of improvement in claimant's condition or a clear prior error in the prior determination of disability, the claimant is entitled to a presumption of disability.
At the time of my decision, the Court of Appeals for the Third Circuit had not yet addressed the issue of the appropriate legal standard to be applied in cessation or termination cases. In my decision, I relied in large measure on a recent decision of the Court of Appeals for the Ninth Circuit, Patti v. Schweiker, 669 F.2d 582 (9th Cir. 1982). See Musgrove, supra, slip op. at 3-4.
Following my decision of June 18, 1982, the Third Circuit issued its opinion in Torres v. Schweiker, 682 F.2d 109 (3d Cir. 1982). The Secretary has moved for relief from the June 18 judgment, asserting that my prior decision is inconsistent with Torres. For the reasons which follow, the motion of the Secretary will be denied.
The crux of the Secretary's argument is that the effect of the rule of law set forth in my earlier decision is to shift the burden of proof to the Secretary, a result expressly held in Torres to be impermissible. While the Court's opinion in Torres does at first glance appear to cast doubt on the validity of my prior ruling, I conclude that the two decisions are not inconsistent.
In Torres, the claimant argued that a prior determination of disability by the Secretary in and of itself makes out a prima facie case of continuing disability and entitlement to benefits, thereby shifting the burden of proof to the Secretary to show that the claimant is no longer disabled. Torres, supra, 682 F.2d at 111.
The Torres Court rejected such a shifting of the burden of proof in a termination proceeding and set forth three grounds in support: (1) language of the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 339, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976);
(2) the broad language of 42 U.S.C. § 423(d) (5) (1976)
"supportive of a reading . . . that would place the burden of proof as to the medical basis of a finding of disability on the claimant at all times"; Torres, supra, 682 F.2d at 111; and (3) the burden of proof in an initial application for benefits as set forth in a prior Third Circuit opinion, Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979).
The specific language of the Torres holding provides the proper starting point for analysis: "We hold that in a termination proceeding the claimant has the burden of proving that she is unable to return to her customary occupation." Torres, supra, 682 F.2d at 112. While the Secretary concedes that my prior opinion expressly held that the burden of proof in a termination proceeding was on the claimant, the Secretary argues that the imposition of a presumption of disability when there is an absence of any evidence to show improvement or error in the prior determination has the effect of impermissibly shifting the burden of proof to the Secretary. Such a view misconstrues the effect of a presumption.
"Presumptions are rules of law requiring the assumption of one fact upon proof of another in the absence of satisfactory evidence." Sowizral v. Hughes, 333 F.2d 829, 833 (3d Cir. 1964); see W. PROSSER, LAW OR TORTS § 38 at 209 (4th ed. 1971):
They place upon the adverse party the "burden" of going forward and offering further evidence, in the sense that a verdict will be directed against him if he does not; but they do not affect the ultimate burden of proof, as to the preponderance of the total evidence required, once all the evidence is in. When persuasive evidence to the contrary is introduced, the occasion for the presumptions, as rules of law, is gone, and they simply cease to exist, "like bats of law flitting in the twilight, but disappearing in the sunshine of actual facts." All that remains is whatever inference from ordinary experience is to be drawn from the facts, which has whatever probative value the facts may justify.
Id. (footnotes omitted) (emphasis added); Sowizral, supra, 333 F.2d at 833, quoting Prosser on Torts, § 41 at 197 (2d ed. 1955).
Had the Secretary come forward with any "persuasive evidence" as to improvement in Mrs. Musgrove's condition or error in the prior determination, the presumption of disability would have ceased to exist. No such evidence was offered by the Secretary. See Musgrove, supra, slip op. at 11.
By contrast, in Torres the administrative law judge made a specific finding of "marked improvement" in claimant's condition following the initial determination of disability, which was supported by the record. Torres, supra, 682 at 112.
The cases cited by the Torres Court as supporting the view that the burden of proof in a termination proceeding remains on the claimant are also consistent with my holding in the previous Musgrove decision. See Crosby v. Schweiker, 650 F.2d 777, 778 (5th Cir. 1981) (per curiam) and Myers v. Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972).
In Crosby, the Court of Appeals for the Fifth Circuit stated that its holding did not conflict with a previous Fifth Circuit decision in which it had held that "once evidence has been presented which supports a finding that a given condition exists it is presumed in the absence of proof to the contrary that the condition has remained unchanged." Crosby, supra, 650 F.2d at 778, quoting Rivas v. Weinberger, 475 F.2d 255, 258 (5th Cir. 1973) (emphasis added by Crosby Court). In Crosby, the evidence supported the ALJ's finding of improvement in claimant's condition.
In Myers, the Court of Appeals for the Sixth Circuit concluded that the Secretary may determine in a single hearing issues of the fact of claimant's initial disability as well as whether such disability has terminated. Myers, supra, 471 F.2d at 1267. In addition to resolving that issue in the affirmative, the Court also concluded that the burden of proof in both initial determination and termination proceedings is on the claimant. Id. The Secretary found that claimant Myers had been disabled for a certain period of time, but that the disability had terminated. Id. at 1266. Implicit in Myers is the finding by the Court that there was on the record evidence upon which the Secretary could have determined that claimant's condition had improved:
The appellant concedes in his brief that the medical testimony in regard to the extent of the appellant's disability and the period of time for which he was disabled is in conflict. As previously stated it is for the Secretary to resolve issues of fact and while a court might reach a different conclusion on the same evidence it is without the power to do so. We conclude that there was substantial evidence of the termination of appellant's disability to sustain the findings of the Secretary.