Appeal from a judgment entered in the United States District Court for the Southern District of New York, Abraham P. Sofaer, District Judge, dismissing appellant's complaint seeking reversal of an administrative determination of the Secretary of Health, Education, and Welfare denying appellant disability benefits. Reversed and remanded to the Secretary.
Before Kaufman and Meskill, Chief Judges, and Brieant, District Judge.*fn*
We reverse the judgment below and remand to the Secretary for further proceedings consistent with this opinion.
Nathaniel Singletary appeals from a judgment of the district court affirming on the administrative record, the Secretary's denial of disability benefits based on a finding that Singletary was not "disabled" within the meaning of 42 U.S.C. § 423(d)(1) on or before March 31, 1974, his last entitlement date. That finding is not supported by substantial evidence. Indeed, although the record is not as clear as it might be as to when the disability arose, the evidence of total disability in this case is overwhelming, and warrants further consideration of the issue of whether it relates back as far as 1974.
"In assessing a claim of disability, four factors are to be considered: (1) objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain and disability testified to by the claimant; and (4) the claimant's educational background, age, and work experience."
Marcus v. Califano, 615 F.2d 23 at 26, n. 2 (2d Cir. 1979), and cases therein cited.
Claimant, born at Kingstee, South Carolina in 1925, received an eighth grade education there. He was employed as a race track groom for at least five years, until 1969, when he stopped working, believing himself physically unfit to continue. Prior to this time he was employed at a gasoline station and a foundry.
Singletary suffers from several ailments. He has complained of dizzy spells since he was kicked in the head by a racehorse in 1969. An old leg fracture also began to cause him pain in 1969. He complains of "foot problems" which make him unable to stand or walk for significant periods. He is and has been an alcoholic, afflicted for a long time with cirrhosis of the liver.
As is usual in such cases, claimant appeared pro se at the administrative level, aided by his son, a non-lawyer. The Administrative Law Judge ("ALJ"), although opening the evidentiary hearing by telling claimant that "(I) will help you in every way I can to bring out the facts that have a bearing on your claim," failed, on balance, to further the remedial purposes of the Act. The ALJ offered to get in touch with claimant's physician and in fact did so. An "attorney-advisor" to the ALJ telephoned Dr. McCollester on February 4, 1977 and ascertained that the Doctor had treated the claimant from June 1972 to August 1975 on a regular basis. Dr. McCollester diagnosed Singletary as having an alcoholic cirrhosis of the liver, which was confirmed as early as June 1972 by elevated serum globulin and bilirubin tests, weight loss, and an enlarged liver. In 1972 Dr. McCollester noted that Mr. Singletary could not work due to the chronic nature of his condition. Dr. McCollester's prognosis was that "this condition will continue to degenerate, ending in death in ten years." Peripheral neuropathy was noted for the first time in August 1975 by Dr. McCollester.
Instead of following up on this information which strongly suggested that Mr. Singletary was disabled as a result of his alcoholism as early as 1972, the ALJ discounted the Doctor's statement, finding that "although such diagnosis (of alcoholic cirrhosis of the liver) was supported by laboratory data, the condition did not result in other end-organ damage or physical limitation. In addition, the claimant was advised many times to stop drinking, but only did so periodically."
The district court found that "Dr. McCollester's oral report leaves a suspicion that petitioner was a chronic alcoholic in 1972, but it fails to establish that fact. His conclusion that petitioner "could not work' is ambiguous; it may only represent his report on what petitioner claimed." If there was any doubt as to the meaning of Dr. McCollester's report, a further inquiry by the ALJ was in order.
The ALJ also had before him a report from Dr. S. Courtney, a podiatrist, dated January 26, 1977, which shows that claimant "suffers from multiple foot disorders, has generalized osteoarthritis bilaterally, severe plantar and digital keratotic lesions in his feet, which make even moderate amounts of ambulation exquisitely painful." Dr. Courtney also found paresthesis secondary to alcoholic neuropathy and sever dermatophytosis in both feet. He concluded that "in my estimation Mr. Singletary is not a good candidate for work." The ALJ should have regarded this circumlocution by Dr. Courtney as equivalent to a statement that Mr. Singletary is totally disabled, at least as of January 26, 1977, and probably for some time prior thereto. Although Mr. Singletary conceded that his foot problems were not as severe in 1974 as they are now, this condition, when considered with his other ailments, did not warrant the outright dismissal of Mr. Singletary's claim.
An examination of claimant for the Secretary by Richard Woronoff, M.D. on January 6, 1976, shows that claimant gave a case history then consistent with his present assertions. Dr. Woronoff found that claimant was then 6 feet 1 inch tall, weighing 154 lbs. with a blood pressure of 1 30/90 . Although he found claimant normal and unremarkable in most aspects, he did confirm a tenderness of the proximal third of the shaft of the left tibia and concluded that Mr. Singletary had a liver disease, probably secondary to use of alcohol, syncopal episodes, possibly related to a post-concussion syndrome, arthralgias, and myalgias of right and left feet, and low muscle back strain.
In addition to the medical evidence, claimant testified, without contradiction, that he did not work following the race track injury because he suffered dizziness, sometimes two or three times a week, in addition to his foot condition. He said he was so dizzy he could not read the newspapers. The claimant's son attempted to testify concerning claimant's alcoholism and inability to work; however, the ALJ rejected his testimony because he is not a doctor and he is the claimant's son. While possible bias is undoubtedly a factor which would go to the weight of the son's testimony, the son had first hand knowledge of claimant's alcohol intake and life style. The testimony of lay witnesses has always been admissible with regard to drunkenness. Rule 701, F.R.Evid.; People v. Eastwood, 14 N.Y. 562, 566 (1856).
The critical date for determination of disability is March 31, 1974. The treating physician, Dr. McCollester, reported that claimant's condition between 1972 and 1975 was chronic and that "he could not work due to it." We have repeatedly stated, recently in Eiden v. Secretary of HEW, 616 F.2d 63 (2d Cir. 1980) and cases therein cited, that "when "no contradictory evidence is presented, a treating physician's expert opinion is binding on the Secretary'." Id. at 64, quoting from Alvarado v. Califano, 605 F.2d 34, 35 (2d Cir. 1979) (per curiam). There is no contradictory evidence to the effect that Mr. Singletary is now able to engage in any available employment. All of the testimony is to the contrary.
Denial of benefits was premised on the narrow ground that as of March 31, 1974, the alleged impairments did not reach a level of severity to be disabling. We cannot agree that this determination is supported by "substantial evidence." 42 U.S.C. § 405(g). Chronic conditions of this sort do not arise overnight. There was competent evidence of disability at least in 1974 and 1976, and a condition which was chronic and disabling in 1975 may well have been chronic and disabling when claimant last worked. His own testimony supports this conclusion, as does the brief report of Dr. McCollester. Mr. Singletary does show a life history of hard labor performed under demanding conditions over long hours. His work record shows employment by nationally known racing stables. These animals, both trotters and pacers, are very valuable. Their care is not entrusted to malingerers or goldbricks. His prior work history justifies the inference that when he stopped working he did so for the reasons testified to.
The totality of this record would compel any fair-minded person to conclude that Singletary cannot work, could not work, and probably will never work again. It was the intention of this remedial legislation that such persons receive the benefits provided by law.
In its review of the Secretary's determination, the district court declined to reach the applicability of the Secretary's Regulation, 20 C.F.R. § 404.1507, denying disability where an alcoholic failed to stop drinking if instructed to do so by a physician. This was appropriate, because the ALJ's denial of benefits did not rely on the Regulation. Accordingly, we need not discuss whether alcoholism is a moral issue or a disease, a point on which there is much disagreement. Physical damage done by prior overindulgence in alcohol is a disability for purposes of the Act, and, apart from his current drinking problem, Singletary is clearly totally disabled at present.
We would remand with a direction to award benefits, except we believe there may be some difficulty in determining whether disability existed as of March 31, 1974. Accordingly, we reverse and remand to the Secretary for proceedings consistent with this opinion.
I respectfully dissent. In my view both the reversal of the judgment below and the remand to the ...