Applying the medical-vocational tables ("grid") (Table No. 1, Appendix 2, Subpart P Regulations No. 4), the ALJ concluded that the plaintiff's disability ended in November, 1981.
In determining who has the burden in cessation of benefits cases, the court in Torres v. Schweiker, 682 F.2d 109 (3d Cir.1982) held that the burden of proof remains with the claimant to prove that she is unable to return to her customary occupation. However, applying the rule in Rossi v. Califano, 602 F.2d 55 (3d Cir.1979), the court in Torres recognized that information as to the availability of jobs in the national economy is more easily obtained by the Secretary than the claimant. Therefore, in consideration of fairness and policy, the Secretary should bear the risk of non-persuasion on elements of disability that are easier for her to prove. Further, the Secretary must come forward with any persuasive evidence as to improvement in the claimant's condition or error in the prior determination. Then the presumption of disability will cease to exist. Musgrove v. Schweiker, 552 F. Supp. 104, 105 (E.D.Pa.1982). In Torres, there was a finding of improvement in claimant's condition, but no such finding was made in Musgrove or in the instant case. Without substantial evidence showing improvement or error in the initial determination, the determination by the Secretary to terminate benefits has no basis. Because no such evidence was adduced by the ALJ in the case before the court, the burden remains on the Secretary.
The ALJ, in determining that plaintiff is no longer disabled, based his conclusion upon the medical evidence of the consulting physicians, Dr. Cohen and Dr. Fewell both of whom concluded that the impairment was mild to moderate. Although the ALJ acknowledged the medical report submitted by plaintiff's physician in his evaluation of the evidence, the ALJ neglected to state why he rejected it.
In Cotter v. Harris, 642 F.2d 700 (3d Cir.1981) the court held that the ALJ must show evidence that supports his decision, as well as an adequate explanation concerning the evidence which is contrary to the ALJ's findings. The treating physician's report in the case sub judice clearly states that Mrs. Coia is disabled. [Exhibit 13]. The ALJ did not reconcile this evidence with his findings.
Finally, the ALJ reviewed the plaintiff's subjective complaints of severe shortness of breath upon minimal exertion. He found her testimony not credible with regard to the severity of the symptoms. Subjective pain, unaccompanied by objective medical data, may support a claim of disability benefits. Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir.1971). A claimant's assertion of pain must be given serious consideration. Smith v. Califano, 637 F.2d 968, 972 (3d Cir.1981). The ALJ noted that the plaintiff had a "noticeable stridor or wheezing in her conversation," but stated that he could not detect any signs of acute respiratory distress. (Tr. 9) Later, the ALJ concluded that the condition is not of the severity alleged by claimant and certainly does not constitute a disabling factor. (Tr. 10) We believe that these statements demonstrate that the ALJ did not give proper consideration to the claimant's subjective testimony of pain. See Kent v. Schweiker, 710 F.2d 110 (3d Cir.1983).
The conclusion of the ALJ that the claimant does not have a severe disability, does not appear to fully take into account her subjective testimony and all of the evidence, especially her doctor's report. The ALJ further fails to determine how, given the evidence regarding plaintiff's inability to sustain activity, that factor bears on placing the plaintiff into the category of having the residual functional capacity to perform sedentary work. Also, there was no indication in the ALJ's findings that plaintiff's condition had improved or that there had been an error in the initial determination of plaintiff's disability. We therefore remand this case for the purpose of making findings consistent with this Memorandum Opinion and for reconsideration of the ALJ's conclusion.