Natalie F. Smith, Widow of Dennis A. Smith, Deceased v. Patricia Harris, Secretary of Health, Education and Welfare, 644 F.2d 985, 3rd Cir. (1981)

644 F.
2d 985
Natalie F. SMITH, Widow of Dennis A. Smith, Deceased,

Appellant,
v.
Patricia HARRIS, Secretary of Health, Education and Welfare,
Appellee.
No. 80-1923.
United States Court of Appeals,

Third Circuit.
Submitted under Third Circuit Rule 12(6) Dec. 2, 1980.
Decided March 23, 1981.
Joel N. Kreizman, Evans, Koelzer, Marriott, Osborne & Kreizman, Red

Bank, N. J., for appellant.
Maryanne T. Desmond and Lorraine S. Gerson, Asst. U. S. Attys., Robert
J. Tufo, U. S. Atty., Newark, N. J., for appellee.
Before ALDISERT, HUNTER and HIGGINBOTHAM, Circuit Judges.
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.
Dennis A. Smith claims he was entitled to disability insurance benefits under

42 U.S.C. 223(d) for a disability period under 42 U.S.C. 216(i) of the Social
Security Act (the Act).1 Smith's claim for disability was denied by the
Administrative Law Judge (ALJ) in an opinion after a hearing at which Smith
waived his right to counsel. The district court ruled that the ALJ's decision was
supported by substantial evidence. On this appeal, the issue is whether under
the facts of this case it was reversible error for the district court to have failed to
remand this claim to the Secretary of Health, Education and Welfare (the
Secretary) when it found that the ALJ inadequately considered claimant's pain.
We conclude that the district judge was in error and will vacate the judgment
with direction to the district court to remand this case to the ALJ for further
consideration.
I.
2
Dennis A. Smith was a 53 year old male who alleged he was disabled as of
November 11, 1977 due to "otological impairments, bundle block of the heart,
cataracts in eye, (and) blindness in one eye." Claimant met the insured status
requirements of the Act. The record shows that claimant completed the eighth
grade and received training as a boiler operator in trade school. He was
employed for fifteen years as head custodian in a school. In this capacity, he
performed numerous maintenance tasks.
In various interviews for his disability benefits, claimant stated that in 1975,
subsequent to a tonsillectomy, he developed a hearing problem. He asserted that
he experienced a "hissing and pulsating tinnitus in his left ear."2 Furthermore,
he alleged that he ceased to work in February of 1976 because the noise was
"too annoying to work under." Smith complained of "almost constant deafening
noise" and he claimed that "all sounds (were) greatly magnified the hum of a
refrigerator motor (was) a roar."
In January of 1977, claimant was examined by Dr. Robert Peterson. At that

time, Smith suffered from hazy vision and had trouble reading. Dr. Peterson
stated that claimant had "light reception" in his left eye only and that, due to an
incipent cataract, vision in his right eye was deteriorating. However, though Dr.
Peterson expected Smith's vision to deteriorate and recommended surgery, he
nonetheless believed that vision in Smith's right eye was correctable to 20 over
30. On November 27, 1977, and November 19, 1978, Dr. Richard H. Demaree,
a general practitioner, examined Smith and diagnosed severe tinnitus (ringing,
buzzing, roaring sounds) in the left ear and a bundle block in the heart.
In his last interview, in his Report of Continuing Disability, Smith commented

that "I anticipate my vision problem will be corrected by surgery on August
17th, but my main problem (the ringing and hissing in his ears) has not
improved at all." In addition, he indicated that his main complaint was "not loss
of equilibrium but almost constant deafening noise (hissing, ringing and
magnified sounds.)" Finally, claimant alleged this constant deafening noise
made "me unable to concentrate on anything else."
On January 26, 1978, Dr. Jay Kern, a gastroenterologist, examined Smith and
he found impaired vision and an inability to tolerate high noise levels.
On June 15, 1978, Dr. Julio T. Noquera, an otolaryngologist, examined the

claimant. On the basis of diagnostic tests he concluded that Smith had a loss of
hearing in both ears and diagnosed the ringing sound in Smith's ears as a
hearing loss related to an inability to hear high frequencies. He noted, however,
that Smith's capacity to hear speech was normal.
8
Mr. Bernard Orr, a vocational expert, stated in the record that "if Smith's
complaints were true, there were absolutely no jobs he could perform."
However, he stated that if Smith retained the residual functional capacity to
perform sedentary and light work, he had the residual vocational capacity to
perform jobs including bench assembler, ticket taker, cashier, and front desk
clerk, since all of these jobs are performed in relatively quiet areas.
II.
9
On November 11, 1977, claimant applied for disability insurance benefits. The
application was denied both initially and upon reconsideration. Smith requested
a hearing before an ALJ and a hearing was scheduled for November 7, 1978.
No one appeared for or represented Mr. Smith at the administrative hearing.
The circumstances under which he did not appear are unclear. It is established
that Mr. Smith did request a hearing, but on November 2, 1978 he requested a
postponement on a form provided by the Social Security Administration stating
he was "under doctor's care urinary problems plus not released from eye
surgeon from surgery on Aug. 17, 1978." There is a letter in the file from Mr.
Smith to the hearing examiner stating that following a telephone conversation
with "Edna Wood from your office I wish to advise you that I waive my right to
attend a hearing." There is no indication in the record as to what was said in the
conversation with Edna Wood, but it is clear that Mr. Smith was persuaded to
alter his prior postponement request. Whether or not an attorney would have
permitted such waiver or would have allowed Mr. Smith to be persuaded to
withdraw his postponement request is conjectural.
10
The ALJ considered the case de novo without any oral testimony, and on
January 15, 1979, found that Smith retained the residual functional capacity to
perform light and sedentary jobs existing in substantial numbers in the local and
national economy, and ruled that he was not disabled within the meaning of the
Act. On March 5, 1979, Smith died, seven weeks after the ALJ's decision. The
ALJ's ruling became the Secretary's final decision on June 18, 1979. Thereafter,
pursuant to 205(g) of the Act, Natalie F. Smith, widow of Dennis G. Smith,
appealed to the district court for review of the Secretary's final determination,
seeking the disability benefits allegedly due her deceased husband under
204(d) of the Act, 42 U.S.C. 404(d). The district court found that the
Secretary's ruling was supported by substantial evidence even though the ALJ
had inadequately considered the claimant's pain, and as a consequence,
affirmed the Secretary's decision.

III.
11
In a thoughtful opinion, the learned district judge noted all of the proper
precepts as to the standard of review of the Secretary's finding. Since so much
has been written noting the restraints on and the standards for both district
judges and courts of appeals in reviewing the Secretary's findings, these
precepts need not be repeated here. See generally Cotter v. Harris, 642 F.2d
700, No. 80-2027 (3d Cir. February 20, 1981); Smith v. Califano, 637 F.2d 968
(3d Cir. January 13, 1981); Livingston v. Califano, 614 F.2d 342 (1980);
Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir. 1979); Hargenrader v.
Califano, 575 F.2d 434 (3d Cir. 1978).
12
The district court recognized that pain by itself can be a disabling condition.
Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974), cert. denied, 420 U.S.
931, 95 S.Ct. 1133, 43 L.Ed.2d 403 (1975). Further, it found that the ALJ
"inadequately addressed Smith's subjective complaints of pain." Indeed, the
court stated that "(o)rdinarily, this would necessitate a remand but such an order
would be futile in this case because the death of Smith has made further fact
finding impossible." Id. at App. 8. The district judge's statement that it would
be futile to remand because of Smith's death is predicated on the assumption
that it is impossible to present subjective evidence of pain when the original
claimant is deceased. While, of course, ALJ's do not have the power to
resurrect the dead, nevertheless they can receive evidence from third parties
and particularly doctors, family members and health personnel when the
complaints of a deceased claimant and acts of the claimant corroborate the
inference of subjective pain. In fact, in Baerga, this court observed as follows:
13 addition to objective medical facts and expert medical opinions, the Hearing
In
Examiner must consider the claimant's subjective evidence of pain and disability, as
corroborated by family and neighbors ; and all of these factors must be viewed
against the applicant's age, educational background and work experience."
14
500 F.2d at 312 (Emphasis added) (quoting Mode v. Celebrezzi, 359 F.2d 135,
136 (4th Cir. 1966)). When the plaintiff in personal injury cases is deceased,
the trial court routinely receives evidence from family, doctors and neighbors
as a basis for damage awards for the pain and suffering which a party endured
prior to death. We see no reason why the widow of a claimant would have any
less rights before an ALJ or have a less sympathetic fact finder than one
encounters routinely in a trial court in personal injury cases.
15
As Judge Adams recently noted in Dobrowolsky v. Califano, 606 F.2d at 406-7:
16 court has ... emphasized (on numerous occasions) that the special nature of
This
proceedings for disability benefits dictates extra care on the part of the agency in
developing an administrative record and in explicitly weighing all evidence. We
have pointed out that "(a) hearing on an application for benefits is not an adversary
proceeding. The applicant is confronted with no adversary in the usual sense of that
term. The Social Security Administration provides an applicant with assistance to
prove his claim."
17
(footnotes omitted). Accordingly, "(i)t is incumbent upon the examiner to make

specific findings the court may not speculate as to findings." Id. at 409.
Similarly, a district judge may not speculate as to the findings which an ALJ
would make when appropriate and relevant evidence is presented.
18
In fact, should the ALJ fail to make comprehensive findings, his holding must
be reversed and remanded for further findings. Hargenrader v. Califano, 575
F.2d 434 (3d Cir. 1978). In Baerga v. Richardson, 500 F.2d at 312-13, this court
observed as follows:
19
In our view an examiner's findings should be as comprehensive and analytical

as feasible and, where appropriate should include a statement of subordinate
factual foundations on which ultimate factual conclusions are based, so that a
reviewing court may know the basis for the decision .... It is incumbent upon
the examiner to make specific findings the court may not speculate as to his
findings. Williams v. Celebrezze, 359 F.2d 950 (4th Cir. 1966). "We think it is
not too much to require that an administrative decision that a claimant is not
eligible ... be supported by explicit findings of all facts that are essential to the
conclusion of ineligibility." Choratch v. Finch, 438 F.2d 342, 343 (3rd Cir.
1971).
20
The ALJ's duty, therefore, is critical in this context since
21
consistent
with the legislative purpose, courts have mandated that leniency be shown
in establishing the claimant's disability, and that the Secretary's responsibility to
rebut it be strictly construed. We declared in Hess that "(a)lthough the burden is
upon the claimant to prove his disability, due regard for the beneficent purposes of
the legislation requires that a more tolerant standard be used in this administrative
proceeding than is applicable in a typical suit in a court record where the adversary
system prevails."
22
Dobrowolsky v. Califano, 606 F.2d at 407 (citing Hess v. Secretary, 497 F.2d
22
Dobrowolsky v. Califano, 606 F.2d at 407 (citing Hess v. Secretary, 497 F.2d
at 840). Particularly where the claimant is unrepresented by counsel, the ALJ
has a duty to exercise "a heightened level of care" and "assume a more active
role." Id.
23
In this case, the record clearly reveals Smith's subjective statements of pain.
Moreover, the record indicates that Smith's doctor diagnosed his problem as
"severe vertigo tinnitus."3 The district court found that "the ALJ inadequately
addressed Mr. Smith's subjective complaints of pain." The ALJ should seek to
corroborate this evidence by considering the testimony of others such as
Smith's family members, neighbors and personal physicians.
IV.
24
For the reasons stated above, therefore, we will vacate the district court's order
of summary judgment and direct that the matter be remanded to the Secretary
for a further hearing.
25
ALDISERT, Circuit Judge, concurring.
26
I join in parts I, II, and IV of the majority opinion. I do not join in that portion
of part III that relies on Hargenrader v. Califano, 575 F.2d 434 (3d Cir. 1978).
As more particularly set forth in my dissent, id. at 438-39, I have problems with
that case. My concerns would have been alleviated had this court required only
that the ALJ set forth his narrative or historical findings of fact (basic facts).
Basic facts underlie determinations of ultimate facts, which are mixtures of fact
and law.1 Although judicial review of basic facts is limited to the substantial
evidence standard, a review of ultimate facts entails an examination for legal
error of the legal components of those findings.
27
I believe that both the Secretary of Health and Human Services and the district
courts would have better understood our directions in Hargenrader and Baerga
v. Richardson, 500 F.2d 309, 312-13 (3d Cir. 1974), if the court had
distinguished basic facts, for which detailed findings are necessary, from
ultimate facts, for which a less detailed explication is sufficient.
The Act defines disability as an "inability to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment
which ... can be expected to last for a continuous period of not less than 12
months." 42 U.S.C. 423(d)(1)(A). Furthermore, the Act states as follows:
(A) individual ... shall be determined to be under a disability only if his physical
or mental impairment or 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 which
exists in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
Id. 423(d)(2)(A).
2
Gray's Attorney's Textbook of Medicine, Par. 84.62 (3rd Ed. 1978) describes
severe vertigo tinnitus as "a subjective sensation of ringing or buzzing in the
affected ear."
A National Institute of Health survey, reported in Health Sciences Center

News, Vol. 5, No. 8, Aug. (1976), stated that for 7.2 million sufferers "tinnitus
is so severe as to be debilitating."
Basic facts are those narrative or historical facts elicited at trial from the
testimony and evidence presented by witnesses. An ultimate fact is usually
expressed in the language of a standard enunciated by case-law rule or by
statute, e. g., an actor's conduct was negligent; the injury occurred in the course
of employment; the rate is reasonable; the company has refused to bargain
collectively. "The ultimate finding is a conclusion of law or at least a
determination of a mixed question of law and fact". It is the province of the fact
finder the jury, the judge in non-jury cases, or the administrative agency to
"find" the basic fact, or that part of an ultimate finding that rests on narrative or
historical facts.... (O)nce basic facts have been found, they are seldom
dislodged
R. Aldisert, The Judicial Process 694 (1976) (quoting Helvering v. Tex-Penn
Oil Co., 300 U.S. 481, 491, 57 S.Ct. 481, 573, 81 L.Ed. 755 (1937)).

Natalie F. Smith, Widow of Dennis A. Smith, Deceased v. Patricia Harris, Secretary of Health, Education and Welfare, 644 F.2d 985, 3rd Cir. (1981)

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Natalie F. Smith, Widow of Dennis A. Smith, Deceased v. Patricia Harris, Secretary of Health, Education and Welfare, 644 F.2d 985, 3rd Cir. (1981)

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644 F.

Natalie F. SMITH, Widow of Dennis A. Smith, Deceased,

United States Court of Appeals,

Joel N. Kreizman, Evans, Koelzer, Marriott, Osborne & Kreizman, Red

Dennis A. Smith claims he was entitled to disability insurance benefits under

In January of 1977, claimant was examined by Dr. Robert Peterson. At that

In his last interview, in his Report of Continuing Disability, Smith commented

On June 15, 1978, Dr. Julio T. Noquera, an otolaryngologist, examined the

affirmed the Secretary's decision.

As Judge Adams recently noted in Dobrowolsky v. Califano, 606 F.2d at 406-7:

(footnotes omitted). Accordingly, "(i)t is incumbent upon the examiner to make

In our view an examiner's findings should be as comprehensive and analytical

The ALJ's duty, therefore, is critical in this context since

ALDISERT, Circuit Judge, concurring.

The Act defines disability as an "inability to engage in any substantial gainful

A National Institute of Health survey, reported in Health Sciences Center

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