Appeal from a judgment entered on an order of the United States District Court for the Southern District of New York, Pierre N. Leval, Judge, affirming a final administrative decision of Secretary of Health and Human Services and granting the Secretary's motion for judgment on the pleadings. The judge agreed with the Secretary that plaintiff-disability benefits claimant had failed to meet the "earnings requirement" of the Social Security Act, 42 U.S.C. § 423(c)(1)(B). Reversed and remanded.
Kaufman, Timbers and Cardamone, Circuit Judges.
The case before us presents a somewhat ironic situation. The failure to employ available procedures, and the resulting nonenforcement of administrative subpoenas, appears to have stemmed not from absence of sympathy to the claimant's position, but from a lack of understanding how to proceed. As the facts indicate, the error of omission led to other procedural infirmities, and ultimately to a deprivation of due process. Accordingly, we reverse and remand.
We set out in some detail the intricate procedural and factual matrix which generated this appeal.
Margaret Treadwell, an illiterate migrant farm worker representing herself, first applied for disability insurance benefits in December, 1973. On February 22, 1974, her application was denied, the Director of HEW's Division of Initial Claim is having determined Treadwell had not demonstrated "insured status," pursuant to the Social Security Act, 42 U.S.C. § 423(c) (1) (B) (i). That provision requires a claimant to establish he or she earned twenty calendar "quarters of coverage" during the forty quarter period ending with the quarter in which the disability is alleged to have arisen.*fn1 Because the Administration's official earnings record evidenced credit for only twelve quarters of coverage during the relevant period, Treadwell had not proved her eligibility for benefits. See id. § 405(c) (4) (B) (absence of entry in Secretary's records as to wages alleged to have been paid considered presumptive evidence of nonpayment).
In response to this initial denial, Treadwell submitted statements to supplement her earnings record and to show she had been employed for a sufficient number of quarters to qualify for disability insurance. She named various employers, in New York and Florida, for whom she claimed to have worked, and who might have failed to report her earnings to the Social Security Administration. Treating her statements as an implied request for reconsideration, the Administration attempted to communicate with the employers she had named. Of those who replied -- and several never did -- the majority failed to substantiate Treadwell's claim of employment. In February, 1977, on reconsideration, the claim was again denied.
In December, 1977, Treadwell, now represented by counsel, was granted a hearing before an Administrative Law Judge. On May 3, 1978, two weeks before the hearing, Treadwell's attorney requested the issuance of administrative subpoenas. Noting that although his client would testify at the hearing, she "can neither read nor write and has no written records from the years in question," counsel asked the ALJ to subpoena eight employers and their payroll and tax records, see 42 U.S.C. § 405(d). The ALJ issued subpoenas requiring production of the documents, but not compelling the employers' appearance at the hearing.*fn2
By the time of the hearing, only two of the eight subpoenaed employers had responded. Daniel Kaduk, a Newburgh, New York resident for whom Treadwell claimed to have performed domestic work, wrote:
Margaret Treadwell, to the best of our recollection, only worked a few days in March and April of 1973 as a domestic. It was never reported because she didn't earn enough to report.
Joseph Rapisardi, owner of a farm in the Newburgh area, did not respond directly. Rather, his son-in-law, Benjamin Gilberti, after indicating Rapisardi was in Europe and would remain unavailable for some months, stated that the farm had been sold more than five years previously, and "as for the records, they were all destroyed in a fire. . . ." Gilberti went on to say that Treadwell had "never been in Mr. Rapisardi's regular employment," although she may have "worked a few days" in place of her daughter, during the latter's illness. No details were given -- if, indeed, Gilberti knew them -- of the daughter's indisposition or the time of its occurrence, nor did Gilberti state the wages Treadwell "may have" earned. Gilberti ended his letter by gratuitously expressing his belief that Treadwell "was perpetrating a fraud" by "claiming disability," a somewhat puzzling assertion since Gilberti does not appear to have possessed any knowledge of the nature of Treadwell's claim.
Of the remaining subpoenaed employers, four were in Florida. At the hearing, after stating he did not expect them to come to New York to testify, the ALJ suggested the administrative record be kept open, and the Floridians be given an opportunity to respond to written questions submitted by Treadwell. Treadwell's attorney acceded to this procedure.*fn3 Regarding the New York employers who had not answered the subpoenas, Noreco Fruit Packing Co. and Marlboro Freezers, counsel registered his request that they be compelled to do so, and noted that despite the specificity of the subpoenas, "[some of] the local people who are just a few miles away . . . say, 'Never worked for me. ' Period." Obviously sympathetic to Treadwell's complaint that the employers' failure to comply with the terms of the subpoenas prejudiced her ability effectively to "confront" them, the ALJ suggested counsel conduct his own investigation. The ALJ did not, however, indicate a readiness to enforce the subpoenas because he was laboring under the belief that the exclusive authority to do so was lodged with the United States Attorney.
Oral testimony taken at the hearing further entangled an already snarled evidentiary web. Treadwell had claimed, via her attorney's introductory remarks, that she would establish the requisite quarters of coverage based upon, inter alia, domestic work for Kaduk and a second employer, one "Gilverte." As it developed, however, she did not testify concerning work performed for Kaduk. She did claim to have worked for Gilverte, although she did not testify to the amount earned. As noted, one Gilberti wrote a letter in response to the subpoena issued to the Rapisardi farm, admitting Treadwell had perhaps been briefly employed there, although denying she had ever been in the regular employ of the farm. Whether Gilverte is Gilberti, and whether Treadwell was claiming to have taken on domestic chores for Mrs. ...