Deborah KENT, Appellant, v. Richard S. SCHWEIKER, Secretary, Department of Health and Human Services, Appellee.
No. 82-5230.
United States Court of Appeals, Third Circuit.
June 22, 1983.
Argued Feb. 28, 1983.
Appellant‘s final argument is either that his conviction must be reversed or that his sentence must be vacated because his counsel (not his lawyer on appeal) did not inform him until the day that he changed his plea to guilty that the government was requesting the dangerous special offender classification in this case. Appellant phrases his claim as a violation of section 3575‘s notice requirement. The statute requires only that the government give notice under seal to the court of its intent to request the dangerous special offender classification within a reasonable time before trial or before the court accepts a plea of guilty.
Appellant‘s claim, therefore, is essentially a claim of ineffective assistance of counsel. His argument is that his counsel‘s failure to inform him of the government‘s request prevented him from making a knowing and intelligent decision to change his plea to guilty. Generally, however, appellate courts are unable to consider ineffective assistance of counsel claims on direct appeal because they involve allegations and evidence outside the trial record. United States v. Frankenberry, 696 F.2d 239, 241-42 (3d Cir. 1982); United States v. Sturm, 671 F.2d 749, 750-51 (3d Cir.) (per curiam), cert. denied, — U.S. —, 103 S.Ct. 95, 74 L.Ed.2d 86 (1982); United States v. Rad-O-Lite of Philadelphia, Inc., 612 F.2d 740, 743-44 (3d Cir. 1979); United States v. Garcia, 544 F.2d 681, 684 n. 1 (3d Cir. 1976). In this case, for example, there is no way that we can determine from the record whether appellant‘s lawyer ever discussed the consequences of sentencing under section 3575 with him before the day of the hearing where appellant changed his plea. The record does show, however, that the judge carefully explained those consequences to appellant at the time of his change-of-plea hearing. Supp. app. at 4a-6a, 9a.
Without expressing any opinion on the merits of appellant‘s claim, we decline to review it on direct appeal. Our disposition is without prejudice to appellant‘s ability to pursue his claim in a collateral proceeding pursuant to
III.
For the reasons expressed in this opinion, we will affirm the judgment of sentence.
W. Hunt Dumont, U.S. Atty., James H. Cooper, Lorraine S. Gerson (argued), Asst. U.S. Attys., Newark, N.J., for appellee.
Before ADAMS, WEIS and BECKER, Circuit Judges.
OPINION OF THE COURT
BECKER, Circuit Judge.
Deborah Kent appeals from an order of the district court granting summary judgment for the Secretary of Health and Human Services in this action to review the Secretary‘s final determination denying ap
I. Factual Background
Appellant was employed by the New York City Board of Education as a teacher of the handicapped. On October 14, 1977, appellant was walking with a semi-ambulatory retarded student who grew tired of walking and pulled appellant to the ground. Appellant felt sharp pains in her back and promptly sought medical treatment. Within a week, she was admitted to Montefiore Hospital as an emergency patient. There followed a long course of intensive treatment for low-back problems, which have persisted throughout the timeframe of the record in this case.
Appellant has proffered evidence that, since the time of her injury, she has suffered continuous and disabling pain in her back and has derived no comfort from the continuing medical attention that she has received. In her quest for relief from the pain, appellant has undergone hospitalization (consisting principally of bed rest, traction, and medication), has received nerve blocks and extensive physical therapy, has worn a transcutaneous nerve stimulator, and has taken large dosages of medication. Testifying at the hearing before the ALJ, appellant stated that she is in virtually constant pain; that she uses a cane and can walk only two blocks without pain; that she is comfortable only when lying down; that she is able on a typical day to do nothing but read, watch television, and hook rugs; and that she has only very limited ability to sit, stand, bend, walk, lift, and reach. Appellant, who lives with her mother, also said that she cannot perform even simple housework. She will not use public transportation and is afraid to go outside. She also testified that she takes a great amount of medication that makes her feel “spacey” and disoriented, affecting her ability to think.
Although appellant has had transient periods of remission, and although she possesses a Master‘s Degree in counseling, has an excellent prior work history, and appears to have been quite motivated, she testified that, between the time relevant for the disability determination (June 12, 1979) and the date of the ALJ‘s decision (July 25, 1980), she could not do any kind of work. And she has adduced medical evidence to support this contention: Dr. Irving J. Estrin, a specialist in physical medicine, Dr. David Kaufman, a neurologist, and Dr. Melvin Adler, an orthopedic surgeon, have concluded, in written reports submitted to the Secretary, that appellant‘s low-back condition has rendered her totally unfit to perform any gainful employment.1 These doctors also agree that appellant‘s ability to sit, stand, walk, bend, squat, crawl, or climb is extremely limited and that she cannot frequently lift or carry objects of any substantial weight. Indeed, Drs. Estrin and Adler, the physicians who have seen her most often during the past two years, stated that, in the course of an eight-hour workday, appellant would have the capacity to sit, stand or walk for only two hours each.
Appellant also claims that her physical disorder has caused her to develop a severe emotional impairment for which she has had regular consultation with a psychologist, Dr. Martha Schon. Dr. Schon has stated that appellant “suffers from anxiety and depression, reactive to physical injury which incapacitates her severely.” Appellant asserts that her depression also adversely affects her employability.
II. The Administrative Proceedings
Despite the consensus of medical opinion in appellant‘s favor, the Secretary did not
Notwithstanding the absence of medical evidence supporting the Secretary‘s position, the ALJ concluded that appellant‘s impairments and pain, considered either alone or together, “are not of a level of severity to have prevented the claimant from engaging in substantial gainful activity.” He found that appellant‘s allegation of disabling pain “is not fully credible in view of the physical symptoms and signs accompanying the impairments, claimant‘s range of physical activities, claimant‘s efforts to relieve the alleged pain, and claimant‘s appearance, demeanor, and ability to tolerate the hearing procedure.” Conceding that appellant‘s impairments prevented her from resuming any of her previous work activities, see supra note 1, and that her past relevant work, while skilled, provided no transferable skills, the ALJ nevertheless concluded that appellant was able to engage in sedentary work activity2 and that the Social Security “grid” regulations,
The ALJ‘s underlying analysis and the basis for his ultimate conclusions may be summarized as follows:
- The physicians who had examined appellant did not indicate that she would be incapable of engaging in sedentary work activity; rather, Drs. Estrin and Adler stated that appellant would be able to sit, stand, or walk for two hours each in the course of an eight-hour workday;
- Drs. Estrin and Adler stated that appellant occasionally could lift up to ten pounds;
- There was no evidence that appellant did not retain substantial use of her arms or hands for any activities;
- Appellant‘s condition improved after each hospital stay;
- Appellant‘s receipt of a retirement pension in the amount of $12,000 per year from her former employer “cannot help but cause questioning as to her motivation to return to work“;
- The frequency of appellant‘s visits to physicians for treatment was not consistent with appellant‘s complaints of severe pain;
- The unwillingness of appellant‘s regular physicians to consider a myelogram or surgery suggested that the doctors did not believe appellant‘s condition to be severe enough to require drastic intervention and tended to negate appellant‘s expressions of severe pain;
- “Claimant‘s testimony as to her activities,” as well as “other objective medical evidence of record,” (the ALJ did not explain what he meant by these two phrases) did not indicate disability;
- The periods of time during which appellant was incapable, “based on the objective medical evidence,” of engaging in work activity never lasted for a period “remotely approaching” the continuous period of twelve months required by the Act;
- “Above all,” appellant‘s “appear-
ance and demeanor at the hearing”3 did not support her claim.
Accordingly, the ALJ concluded that, except during periods of exacerbation, appellant retained the residual functional capacity to engage in sedentary work.
The ALJ‘s decision denying benefits was later adopted by the Appeals Council and became the final decision of the Secretary. The district court, after reviewing the administrative record and the parties’ briefs, granted the Secretary‘s motion for summary judgment. This appeal followed.
III. The Absence of Substantial Evidence
As we reiterated in Olsen v. Schweiker, 703 F.2d 751, 753 (3d Cir. 1983), “[t]he process employed to determine whether plaintiff is entitled to benefits involves shifting burdens of proof.”
There is a two-pronged test for social security act disability: (1) determination of the extent of disability; and (2) determination whether that impairment results in inability to engage in substantial gainful activity. A claimant satisfies her initial burden of proof by showing that she is unable to return to her customary occupation. E.g., Stark v. Weinberger, 497 F.2d 1092 (7th Cir. 1974); Baker v. Gardner, 362 F.2d 864 (3d Cir. 1966). Once she has made such a demonstration, the burden of proof shifts to the Secretary to show that the claimant, given her age, education and work experience, has the capacity to perform specific jobs that exist in the national economy. E.g., Lewis v. Weinberger, 541 F.2d 417 (4th Cir. 1976); Hernandez v. Weinberger, 493 F.2d 1120 (1st Cir. 1974). Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979). Appellant here satisfied her initial burden of proof by demonstrating her inability to return to her former job as a teacher of handicapped students, and, as we have noted, the Secretary does not contend that appellant could do so. The burden of proof therefore shifted to the Secretary to show that appellant, given her overall condition, nevertheless retained sufficient capacity to perform specific jobs existing in the national economy.
The ALJ, the Appeals Council, and the district court all appear to have found the Secretary to have met his burden of proof, and we recognize that “[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive....”
It may well be that an educated woman who can use her hands and arms, can lift up to ten pounds occasionally, and can sit, stand, or walk for two hours each in an
The ALJ‘s error is even more apparent in light of the evidence of appellant‘s psychological and orthopedic problems. Without even requesting an examination of appellant, the ALJ disregarded the highly relevant opinions of appellant‘s treating physicians and gave no basis for so doing.5 This course of action is inconsistent with the ALJ‘s duty:
This Court has recognized that there is a particularly acute need for some explanation by the ALJ when s/he has rejected relevant evidence or when there is conflicting probative evidence in the record.... In Kennedy v. Richardson, 454 F.2d 376 (3d Cir. 1972), we vacated and remanded the decision of the ALJ because it failed to afford an explanation why the ALJ rejected medical evidence that supported the claimant which was inconsistent with other medical evidence and the ALJ‘s findings.... In Schaaf v. Matthews, 574 F.2d 157 (3d Cir. 1978), we held that it was error for an ALJ to reject uncontradicted medical evidence without a clear statement of the reasons for doing so.
Cotter v. Harris, supra, 642 F.2d at 706.
Moreover, this Court has also declared that “[t]estimony of subjective pain and inability to perform even light work is entitled to great weight, particularly when it is supported by competent medical evidence,” Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir. 1979), and that an ALJ‘s failure seriously to consider subjective evidence of pain can itself constitute grounds for reversal, see Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 1981). Here, however, the ALJ‘s dismissal of appellant‘s complaints of pain appears to have been solely a function of the ALJ‘s own credibility judgment and of appellant‘s failure to have visited her physicians more frequently. When we recall that appellant has been treated by some eight physicians, that she was taking heavy doses of prescribed medications, and that she was unemployed and hence had limited funds, it becomes evident that the considerations upon which the ALJ relied do not constitute a proper basis for rejecting appellant‘s complaints of pain, especially when we consider that her complaints were supported by medical testimony.
IV. Conclusion
Although we believe that the ALJ‘s decision was not supported by substantial evidence, we do not believe that the record inexorably requires a grant of summary judgment for appellant.6 What obviously gnawed at the ALJ was the failure of both appellant and her physicians seriously to explore the question of surgery—or even myelography—despite the prolonged duration of appellant‘s disabling symptoms. The ALJ apparently was also troubled by the prospect that this highly educated and intelligent young woman who was only thirty-three years old and possessed a master‘s degree in counseling could be rendered totally disabled by a back condition that was diagnosed by most physicians as nothing more than a “possible” herniated disc.7 While these concerns are certainly an insufficient basis upon which to uphold the district court‘s grant of summary judgment for the Secretary, competent medical or vocational evidence might confirm the ALJ‘s judgment that, considering her intellect, education, and training, appellant could perform sedentary work, even given the limited capacities ascribed to her by Drs. Estrin and Adler.8
We therefore will reverse the judgment of the district court and remand the case to the Secretary for further hearings.
ADAMS, Circuit Judge, concurring in the judgment.
I agree that the order of the district court should be vacated and the matter remanded for further proceedings, although my reasons for this disposition differ from those of the majority.
The Secretary does not seem to have met his burden of showing that Kent has the capacity to perform sedentary work, but I am reluctant so to conclude without affording the Secretary an opportunity to explain with greater clarity the decision reached in this matter. The ALJ‘s explanation of his disposition is obscure, and “[i]t would be improper for us to speculate as to [his] reasoning process....” Schaaf v. Matthews, 574 F.2d 157, 160 (3d Cir. 1978). Out of an abundance of caution, therefore, I would vacate the district court‘s grant of summary judgment in favor of the Secretary, rather than reverse.1