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March 10, 1981

Seymour DEUTSCH, Plaintiff,
Patricia HARRIS, Secretary, Department of Health and Human Services, Defendant

The opinion of the court was delivered by: SAND

This is an action under § 205(g) of the Social Security Act (the "Act"), as amended, 42 U.S.C. § 405(g), to review the decision of the Secretary of Health and Human Services ("Secretary") denying plaintiff Seymour Deutsch disability insurance benefits. Both parties have moved for judgment on the pleadings.

The Facts

Plaintiff was born in Czechoslovakia on July 29, 1929. He emigrated to the United States in 1948. He attended one year of school. He is able to read, but cannot write English.

 From 1964 through 1973, the plaintiff was involved in the manufacture of fur coats. He cut, stretched and sewed fur. However, he left the business because it was unstable and he did not receive steady orders. In 1974, he became a carpenter and "houseman". In March of 1975 while working on a building, he fell from a scaffold, which was fifteen or sixteen feet from the ground. As a result of the accident, he injured his back and spine and he has suffered severe back pains. He has been confined to his home since the accident. Occasionally, he visits his daughter and goes to the doctor. He has not driven a car for the past three years, having his wife drive him to see his daughter and to visit the doctor. He is unable to sit in the same position steadily.

 Plaintiff's application for disability benefits was denied. A hearing was held before an Administrative Law Judge ("ALJ") on February 1, 1979. The ALJ concluded the plaintiff was "not disabled" under Regulation § 404.1513 *fn1" and Rule 201.20, Table No. 1 of Appendix 2, Subpart P, Regulation 4, a decision that was based on his findings as to claimant's maximum sustained work capacity, age, education, and work experience. The ALJ's decision was affirmed by the Appeals Council, making it the final decision of the Secretary. Plaintiff brought suit in this Court seeking review of the decision, Section 205(g), 42 U.S.C. § 405(g).


 In order for an individual to be entitled to disability insurance benefits, he must prove that he is disabled, defined in the Act as an "inability to engage in any substantial gainful activity by reason of any medically determined physical impairment which can be expected to result in death or can be expected to last for a continuous period of more than 12 months;" Section 223(a)(1)(A), 42 U.S.C. § 423(d)(1)(A). An individual is disabled if his "impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education and work experience, engage in any other kind of substantial gainful work." Section 223(d)(2)(A), 42 U.S.C. § 423(d)(2)(A).

 The burden of persuasion is on the individual seeking the disability benefits, to prove that he is unable to work at his former employment due to his impairment, Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). After the claimant proves his inability to work at his former job, the burden of producing evidence shifts to the Secretary, who must demonstrate the existence of available employment compatible with the claimant's impairment. Id. The availability of compatible employment must be shown to be real and not merely theoretical. Kerner v. Flemming, 283 F.2d 916, 921 (2d Cir. 1960); Maldonado v. Mathews, 424 F. Supp. 301, 305-06 (E.D.N.Y.1976). In Kerner, the court required the Secretary to inquire: "(W)hat can the applicant do and what employment opportunities are there for a man who can do what the applicant can do?" Kerner, 283 F.2d at 921.

 The Secretary has recently adopted regulations setting forth rules reflecting the major functional and vocational patterns to be applied in showing what other employment opportunities are available to a claimant who is not engaged in substantial gainful activity, not qualified as disabled on medical considerations alone (see 20 C.F.R. § 404.1526) and not able to return to his "vocationally relevant" past work because of a medically determined impairment (see 20 C.F.R. § 404.1520(f)). 20 C.F.R. § 404.1569 and Appendix 2. The operation of the rules is described as follows:

"They also reflect the analysis of the various vocational factors (i. e., age, education and work experience) in combination with the individual's residual functional capacity (used to determine his or her maximum sustained work capability for sedentary, light, medium, heavy or very heavy work) in evaluating the individual's ability to engage in substantial gainful activity other than his or her vocationally relevant past work. Where the findings of fact made with respect to a particular individual's vocational factors and residual functional capacity coincide with all of the criteria of a particular rule, the rule directs a conclusion as to whether the individual is disabled or not disabled. However, each of these findings of fact is subject to rebuttal and the individual may present evidence to refute such findings. Where any one of the findings of fact does not coincide with the corresponding criterion of a rule, the rule does not apply in that particular case and, accordingly, does not direct a conclusion of disabled or not disabled. In any instance where a rule does not apply, full consideration must be given to all of the relevant facts of the case in accordance with the definitions of each factor in the appropriate sections of the regulations." Rule 200.00 of Appendix 2, Subpart P, Regulation No. 4.

 See also, Figurroa v. Secretary of Health and Human Services, Slip op., No. 79-5018 (S.D.N.Y. Sept. 23, 1980).

 There is no dispute that the plaintiff is unable to return to his former employment. Thus, the finding of disability turns on whether the Secretary has met her burden of producing evidence with respect to the availability of other employment opportunities for the plaintiff. See, Kerner, supra. Plaintiff asserts that the defendant failed to meet her burden of producing evidence at the hearing, because the ALJ failed to call a vocational expert and failed to show in what, if any, substantial gainful employment the plaintiff could engage. The defendant asserts that the decision of the Secretary that plaintiff was not under a disability is supported by substantial evidence and therefore requires an affirmance of the Secretary's decision.

 We find that the Secretary's decision, which was based on application of the new regulations, was not supported by substantial evidence. The evidence with respect to plaintiff's ability to perform sedentary work was insufficient. In particular, the ALJ failed to deal with medical evidence which indicated that the plaintiff must alternate sitting and standing, a fact which makes it unclear whether the plaintiff can perform sedentary work within the meaning of the regulations. We remand the case so that further evidence can be taken concerning plaintiff's ability to do sedentary work. Also, we direct that the ALJ make more detailed findings as to the transferability of the plaintiff's work skills. Therefore, we do not reach the issue on whether a vocational expert is required. *fn2"

 Under § 205(g) of the Act, 42 U.S.C. § 405(g), the Secretary is given the initial responsibility for making findings of fact and decisions regarding the merits of the claim of disability. Federal courts must accept as conclusive any findings of fact made by the Secretary if supported by substantial evidence. Substantial evidence has been defined as " "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S. Ct. 206, 216, 83 L. Ed. 126 (1938)). See Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978); Flores v. Dept. of H.E.W., 465 F. Supp. 317 (S.D.N.Y.1978). In determining whether there is substantial evidence, a court considers all the evidence on the record, including "(1) the objective medical facts; (2) diagnoses or medical opinions ...

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