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June 23, 1982

William F. BRENNAN
Richard S. SCHWEIKER, Secretary of Health and Human Services

The opinion of the court was delivered by: TROUTMAN


The applicable legal standard guiding our decision is not disputed: our duty is confined to a determination of whether the Secretary's decision is supported by substantial evidence, 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971). Substantial evidence is evidence which a reasoning mind would accept as sufficient to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir. 1979); Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1972). Plaintiff bears the burden of proof. 42 U.S.C. § 423(d)(5); Mihalsky v. Schweiker, 540 F. Supp. 671 (E.D.Pa. 1982); Warhola v. Harris, 509 F. Supp. 1236, 1238 (E.D.Pa.1981). Upon an examination of the entire record, including particularly the medical record, plaintiff's testimony and that of a vocational expert and the various exhibits, we conclude that the Administrative Law Judge's (ALJ) finding is not supported by substantial evidence and that plaintiff's motion for summary judgment should be granted.

 The evidence discloses that the plaintiff, a former automobile mechanic, has a left upper arm which is "practically useless" (Tr. 204), and that it cannot be used at all for lifting, grasping, pushing, pulling or fine manipulation (Tr. 206). In view of these objective medical findings and upon consideration of the testimony of the vocational expert, the ALJ found that plaintiff had a "serious manipulative impairment" which only permitted use of the left hand as an "assistive device" (Tr. 20). We agree with the ALJ's conclusion as to limitations which plaintiff suffers as the result of an essentially nonfunctioning arm.

 We part company with the ALJ, however, on the issue of whether plaintiff, a "compulsive drink(er)" (Tr. 234) and "known alcoholic" (Tr. 207, 208), a characterization which the ALJ apparently accepted (Tr. 17), suffers a disability within the meaning of the Act.

  The test for determining whether an alcoholic is entitled to disability benefits requires consideration of whether the plaintiff is "addicted to alcohol and as a consequence has lost voluntary ability to control its use". Adams v. Weinberger, 548 F.2d 239, 244 (8th Cir. 1977). There is no real dispute as to the propriety and correctness of this standard. Ferguson v. Schweiker, 641 F.2d 243, 248-49 (5th Cir. 1981) (citing cases); Hicks v. Califano, 600 F.2d 1048, 1051 (4th Cir. 1979); Gray v. Califano, 448 F. Supp. 1142, 1145 (S.D.Cal.1978). See also, Veal v. Califano, 610 F.2d 495, 497 (8th Cir. 1979) and Griffis v. Weinberger, 509 F.2d 837, 838 (9th Cir. 1975).

 In the case at bar, plaintiff's treating physician, Dr. DiNicola, opined that alcohol and medical problems have resulted in a "complete inability" on plaintiff's part to "retain employment" (Tr. 208). The reason assigned in support of his conclusion is plaintiff's "recurrent self destruction via the alcohol route" (Tr. 208).

 Dr. DiNicola's findings are supported by a report of Dr. Heistand who found that the combination of diseases and limitations which plaintiff suffers results in a "physical inability to take care of himself" (Tr. 266). Hence, the doctor concluded claimant is "unable to engage in any productive endeavor" (Tr. 266).

 An examining psychiatrist, Dr. Nicholls, apparently did not disagree. She termed plaintiff's drinking as "compulsive", but observed that it is not "impossible for him to interpret his realities" (Tr. 234).

 The ALJ, in a lengthy and thoughtful decision, reviewed the relevant testimony and exhibits (Tr. 9-24). In so doing he made two somewhat related findings, neither of which is supported by the record. Moreover, one also apparently misapprehends the proper legal standard. Specifically, the ALJ found:

18. The claimant's alcoholism has not produced any secondary psychiatric or emotional disorders which would interfere with the claimant's ability to work; from a psychiatric standpoint, the claimant is able to carry out those daily activities he wishes to endeavor in. (Exhibit 43).
19. The claimant's alcoholism is not of a severity such that it has become involuntary or irremediable nor has it reached the extent that it prevents the claimant from voluntarily controlling his consumption of alcohol including also his power to seek and use means of rehabilitation. (Exhibit 43).

 (Tr. 23)

 We now examine those two findings. In support of finding number 18, the ALJ cited Exhibit 43. On the strength of that exhibit, the ALJ found that plaintiff's alcoholism "has not produced any ... emotional disorders which ... interfere with (his) ability to work". See, supra. Exhibit number 43, however, evidences just the opposite. The five-page document (Tr. 232-236) contains a form filled out by the psychiatrist, Dr. Nicholls. Question six thereon concerns plaintiff's ability to "sustain work". The doctor's response is that "(alcohol) use can and according to history has interfered with work attendance" (Tr. 235) (emphasis added).

 Finding 18, which supports the ALJ's decision, also appears to consider the wrong legal standard in determining plaintiff's assertion of disability. It states that plaintiff is "able to carry out ... daily activities". See, supra. The question before the ALJ was whether plaintiff can engage in substantial gainful employment. 42 U.S.C. § 423(d)(1)(A). Plaintiff's ability to carry out his "daily activities" is of limited legal relevance. Smith v. Califano, 637 F.2d 968, 971-72 (3d Cir. 1981) (disability is not equated with "(vegetating) in a dark room(,) excluded from all forms of human and social activity". Therefore, "shopping" and "hunting twice" does not preclude an award of benefits); Yawitz v. ...

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