Lewis, Mamie A. v. Califano, Joseph, Jr., Secretary of the United States Department of Health, Education and Welfare (d.c. Civil No. 78-0861)
616 F.2d 73
3rd Cir.
1980
Check Treatment

*2 ALDISERT, VAN Bеfore DUSEN HUNTER, Judges. Circuit THE COURT OPINION OF DUSEN, Judge. Circuit VAN Senior challenges Mamie Lewis appeal, judg grant summary of district court’s defendant, including holding ment its for not qualify that her beliefs do to decline reme good for her decision cause 404.1507 dial under 20 C.F.R. § Depart the conclusion Health, ment of Education and Welfare (HEW) she is not disabled within 416(i)(1) 423(d) meaning of U.S.C. §§ (1976)1 1381a. Lewis’ claim and U.S.C. § was denied an benefits (ALJ) opin judge administrative law in an hearing at which Lewis was ion after a represented ruling by counsel. ALJ became the final decision the Secre approved by when it was tary HEW severity only Disability not an “ina- ments are of such he is is defined statute as cannot, bility any gainful рrevious engage work substantial activ- unable to do his but education, ity by any medically considering age, ex- determinable and work reason physical impairment any perience, engage mental which . other sub- or kind of period expected gainful can to last for continuous which in the na- stantial work exists regardless economy, 42 U.S.C. less than months.” of whether tional 423(d)(1)(A) It is limited as further § work immediate area in which exists lives, job vacancy specific follows: he or whether him, he be hired exists or whether would individual shall be deter- “[A]n applied if for work.” disability only if his to be under a mined Id., 423(d)(2)(A). impairment impair- physical or mental Appeals request HEW’s on Lewis’ concerning daily Council testified routine to the doing for review. Lewis then filed suit effect that she became exhausted light par- housework and had reduced her authority district court under the of 42 events, ticipation in although church 405(g), seeking reversal of HEW’s U.S.C. § was still in the choir. agency decision or a remand to the for an *3 hearing additional in order that further evi repeatedly Claimant had been by advised developed. dence could be After par both surgi- doctors the tumor could be summary ties had moved for judgment, the cally removed and that she would be cured district court referred the case tо a magis if she a hysterectomy. underwent The ALJ trate, grant who recommended the of sum found that the condition was remediable mary judgment for the defendant Secre surgery. with tary. opinion, In a the district separate consistently Claimant has refused to un- adopted court the magistrate’s opinion and dergo surgery due to her independently stated its reasons for such belief in healing. faith Claimant is a de- grant of summary judgment for the de vout member of the Church of God. Her fendant. The case ap comes before us on accompanied minister her to the hearing peal under 28 U.S.C. 1291. We vacate the before the ALJ and concerning testified district court order and remand the case to Church’s tenets and Lewis’ beliefs. The entry district court for of an order explained minister that the Church had no remanding Secretary the case to the against resorting surgery, tenet but that further evaluation and consideration. willing pray he was with claimant to achieve her cure. minister stated that FACTS supported he her decision to rely on divine (claimant) years

Lewis is 55 old. She healing. Claimant testified that she be- clerk-typist worked as a for the Common- lieved divine because she had wealth of Pennsylvania from 1955 until been relieved aof back ailment in 1967 1967, when she left рrob- work due to back without the aid of medical science. She lems. From 1969 until February 1977 she power attributed this cure to the prayer. was employed as a cafeteria assistant for The ALJ stated that claimant indi- “[t]he Harrisburg District, working School ap- hearing cated at the that she is reluctant to proximately per 2!/2 hours day preparing undergo surgery as a result of her religious frozen cleaning up lunches and after lunch. Although beliefs.” defendant does not challenge belief as the cause of The medical by evidence examined claimant’s refusal of surgery for a condition ALJ reports consisted of mediсal from sev- surgery,” “remediable with neither the ALJ eral doctors. These reports indicated that Appeals nor the specific Council made a claimant has had a massive uterine tumor finding that claimant was sincere in her since 1967. A 1974 report medical noted religious objection stated on her difficulty moving claimant had (Ap. 15). abdomen breathing because of pressure created 14— by April tumor. An letter of The ALJ also noted claimant’s physical Dr. Charles Delone stated that the tumor appearance part of the evidence availa- was larger than a full-term July fetus. A determining ble for disability. The ALJ 14, 1977, report Clayton, of Dr. S. who hearing appeared stated that “[a]t works for the Dauphin County Board of healthy questions to be and answered the Assistance and saw claimant at request clearly intelligently. She was soft- authorities, of the welfare concluded that spoken, pleasant very woman who did not claimant could not work as a result of her appear to be disabled.” This was the final condition. piece of the ALJ. evidence noted hearing

Claimant testified at the that she evidence, After reviewing the ALJ had pain, substantial weakness and short- concluded that the claimant was not dis- ness (Ap. 31-33). of breath Claimant also abled. The ALJ stated that: of Dr. who was age, report Clayton, mitted claimant’s

“Having considered the As- County Board of Dauphin hired education, experience, and work whether claimant was to determine sistance reports testimony, medical light of her obtaining welfare to her regard disabled opinions, it is Adminis- and doctor’s claimant Clayton Dr. found that benefits. that the Judge’s trative Law conclusion the find- This doctor made “cannot work.” problem Her claimant not disabled. agency, and ing government for another it ‍‌‌​‌​‌‌​​​​​​‌​​​​‌‌‌​‌​‌‌​‌​‌​​‌​‌​​‌​‌‌​​​‌‌‌​‍severe that would significantly not so weight. finding is entitled to substantial working. from The condition prevent her evidence, has Clearly, from this surgery. Therefore in is remediable to prove carried her burden disabili- initial light of facts it is this Administra- these ty. tive Judge’s Law conclusion Secretary claimant is not entitled to in- shifts The burden now supplemental no security non-disability. surance benefits or ALJ offers prove *4 rejected Clayton’s Dr. explanation why he income benefits..” subjective complaints or finding claimant’s was adopted by The Sec- opinion ALJ’s The review concerning health. ALJ’s retary. only two fac- the evidence demonstrates The on the basis of lack appeals to conclu- might justify which serve his tors finding of non- support of evidence to First, describing petitioner’s sion. after that, Secretary argues disability by the routine, abili- daily he concludes that “[h]er disabled, if we conclude that claimant is we normally get and function ty to around must her benefits because her reli- award In unimpeded.” to appears generally be justifiable is gious belief in faith difficulty view of the fact that claimant has to remedial sur- refusing accept cause feels too moving breathing,2 frequently 423, gery regulations under the to which § house,4 go to clean sick to church3 deny disability benefits to claimants who spends shopping5 needs assistance to do undergo care willfully refuse to remedial bed,6 a the ALJ’s conclusion day 12 hours disability, cure their unless the claimant can sup- not concerning functioning is normal “justifiable show cause” for refusal. by evidence. ported substantial (1977). 20 C.F.R. 404.1507 § noted piece The of evidence second ultimate might support which ALJ’s DISABILITY concerning her his statement conclusion is In reviewing Secretary’s finding the hear appearance. He stated “[a]t any we are mindful that find healthy and answer ing appeared she to be ings Secretary must be ac by fact questions clearly intelligently. ed the by reviewing cepted as a court conclusive pleasant woman soft-spoken very awas She supported “if evidence.” 42 by substantial be Al appear who did not disabled.” (1976). 405(g) evi U.S.C. “Substantial may be a factor though physical appearance as a dence” is relevant evidence rea “such consider, could not determine the ALJ adequate sonable might accept mind that she appearance from claimant’s alone v. support a conclusion.” Richardson Pe Wil by not her tumor. See was disabled rales, 401, 389, 402 91 U.S. S.Ct. 1971). Finch, (5th Cir. liams v. 440 F.2d (1971),Dobrowolsky v. 28 L.Ed.2d 842 Cali professional medical rejected The ALJ fano, (3d 1979). Cir. F.2d opinion on the basis of own observation. Matthews, case, 574 F.2d In this claimant offered sub we v. As noted Gober (3d 1978),аn not free concerning the details of ALJ “is stantial evidence Cir. against of a importantly expertise set his own her ailment. Most sub- Ap. 5. 45-47. 2. Exhibit 22. Ap.

3. 49. op. ALJ at 4. 6. Ap. 39 40. by his physician who testified before him.” On scribed treatment sources but his case, healthy record in impairment claimant’s has continued to nevertheless disabling expected constitute appearance does not substantial be or can be to be supporting evidence the ALJ’s ultimate for at disabling least 12 months. How- finding. ever, willfully an individual who fails to prescribed follow such treatment cannot Quite simply, had no evidence to the ALJ by virtue such failure found to be prima rebut the facie case claimant’s based disability. under a failure Willful does evidence, Secretary medical and the justifiable if there exist is cause for have should determined the claimant failure .to follow such treatment.” was disabled. raised is issue counsel whether OF

WILLFUL REJECTION MEDICAL “justifiable claimant’s belief is ON TREATMENT declining RELIGIOUS surgery. cause” for GROUNDS leading determining case in whether Having that claimant dis- determined a person may obtain benefits under a record, abled on this we address the ques- government program, refusal despite religious objec- tion whether claimant’s comply reasons to with a condition entitlement, to surgery justify Verner, tions her decision willful- to the Sherbert to refuse ly treatment correct a remedia- 10 L.Ed.2d 965 condition, ble since it raised ‍‌‌​‌​‌‌​​​​​​‌​​​​‌‌‌​‌​‌‌​‌​‌​​‌​‌​​‌​‌‌​​​‌‌‌​‍counsel held that Sherbert *5 free in the district court and in this Al- exercise clause of the First court. Amend- prevented though the ment8 South question ALJ never reached this Carolina from de- nying unemployment a compensation as basis for due to his decision7 to his find- a Seventh-Day Adventist, ing of who had willfully he did find that non-disability, claim- accept job refused required to a which work ant’s condition was “remediable.” From day the of the Saturday, rest in Seventh- this finding, Secretary argues the now Day Adventist Church. Court The held disabled, even if the is may claimant she that the belief of the claimant was not obtain she benefits because has failed to justifiable a cause for her willful refusal to comply with 20 404.1507 C.F.R. § accept employment. requires which to claimants treat- obtain ment for pro- remediable conditions that conclusion, arriving In at its the Court duce disability. regulation The provides in weighed governmental against interests pertinent part: the claimant’s First Amendment interests

“An individual with a disabling impair- religion. in the free exercise of her The ment which is amenable to government treatment had two interests. The first expected could be to restore his abili- interest payments was reduce the made ty to work shall deemed to a compensation be under out of unemployment disability undergoing pre- if he is therapy funds.9 The second protect interest judge quired. 7. We note that an administrative The record “[is indicates that of the 150 required even consider Seventh-day Spar- not] challenge constitutional [a or more Adventists in the adjudicatory area, in an See tanburg only appellant context].” and one other 319, 330, Eldridge, Mathews have unable been to find suitable non-Satur- 47 L.Ed.2d 18 day employment.” nothing in There is this record to indicate “Congress respecting 8. shall no law an make only person, aрpel- one other in addition religion, prohibiting establishment or of lant, drawing security will be social federal thereof; U.S.Const., free . exercise benefits because of the belief control- Amend. 1. ling of the action case. If the in this paying opinion pointed (p. defendant finds the the dis- The burden of Sherbert out at note ability p. S.Ct.): of 374 funds to Sci- 1791 of 83 benefit those non-Christian entists of Commission, and non-California Church God mem- filing “In her claim with the case., (see Montgomery below), bers expressed cited who willingness accept employ- a type mills, adhere in to a belief faith ment at other or even in another indus- try, plaintiff, sufficiently greаt, long Saturday it will this is have so re- work was not therefor, with a condition of entitlement from claims made the fund fraudulent religion pre- equally applicable case. claiming that their individuals Sherbert, present case supra, from certain work performing vented them same, thereby obtaining benefits. Court is the a denial bene- burden Further, of the appear these financial interests to be held that fits. there would justify infringe- government compelling did no national interest right to the free infringement ment of individual’s of a justify would religion. exercise of her rights under Christian Scientist’s too, respect, In this First Amendment. stated specifically We note that Shеrbert, parallels this case which the Sherbert, deciding supra, that it was not compelling interest court found no State a case such as this where claimant’s reli- view, justify, which would the court’s nonproduc- “a gious convictions make her Seventh-Day a the denial of benefits to society,” tive this lan- using member of she refused to work on Adventist because at guage page page at 83 S.Ct. 1797: Saturday.” an employee's “This is not a case in which it is held that “Accordingly, a serve to make him religious convictions D, cannot be denied to insurance benefits society.” nonproductive member of Scientist, failure a Christian 9.) (See note surgery for prescribed refusal to follow opinion was concluded Sherbert of cataracts where fail- removal U.S., at page at 410 of 374 sentence upon his solely ure based or refusal page 1797 of 83 S.Ct.: teachings practice and tenets of his principle holding “This but reaffirms (Footnote omitted.) faith.” and a half that we announced decade has agency apparently itself deter- Thus the ago, may that no ‘exclude namely State disability cases the balance mined that Catholics, Lutherans, individual Moham- government’s financial interest between Methodists, medans, Jews, Non- Baptists, religious interest in de- and thе individual’s believers, Presbyterians, or the members be decided in favor of clining must faith, faith, any other because their *6 the religious individual’s First Amendment it, receiving or lack of from the benefits rights. Montgomery of See also v. Board public legislation.’ of Everson v. welfare Retirement, Cal.App.3d 447, 109 33 Cal. 1, Education, 16, of Board 330 67 U.S. Rptr. (1973). 181 504, 512, S.Ct. 91 L.Ed. 711.” whether We need not determine the Security The Administration has Social agency's interpretation of on dis previously the effect Sherbert considered of Sherbert correct, ability cases the upon of is fact because disability the denial benefits under im regulations. Security ruling 20 In Social Administration’s C.F.R. 404.1507 of the 67-61, 118, C.B.1967, p. the of the plicates SSR the Adminis- establishment clause required tration held that Sherbert the First Amendment. The establishment Sec- retary disability requires government ‍‌‌​‌​‌‌​​​​​​‌​​​​‌‌‌​‌​‌‌​‌​‌​​‌​‌​​‌​‌‌​​​‌‌‌​‍to award benefits to a to extend clause the by currently cat- to Christian Scientist who was disabled the same benefits it extends aracts, curable, which were because his reli- to regulations under the Christian Scientists gious forego surgery. him required belief to believe in faith sincerely all individuals who Sherbert, holding After the of the quoting Supreme Court has held that: healing. The ruling religion’ stated: of “The of clause ‘establishment least Supreme the Amendment means at this: by the First expression

“This latest Neither a nоr the Federal Govern Court relative whether an individual state to a religious up pass be if ment can set church. Neither can may denied a benefit con- preclude complying prefer religion him laws which . victions from one 67-61, may though opportunity ruling their beliefs make benefits even vacate its SSR C.B.1967, 118, below, society. holding nonproductive p. them members of cited Christian Scientists are entitled

79 of, sect, another.’ Everson v. Board of Educa- sistent with the views is over a tion, 1, 15, 67 protected S.Ct. 91 religious by belief the First (1947). permit If we are to Chris- L.Ed. Amendment.11 First Amendment was benefits which tian Scientists to have claim- designed large part to prоtect freedom of denied, preferring ant we would be one Note, a conscience. “Toward Constitutional (Christian Scientists) religion over another Religion,” Definition of 91 Harv.L.Rev. religious which believes in faith heal- group 1056, (1979). To goal fulfill this ade- ing.10 quately, may the Amendment be read the conscience of each indi- accommodate government attempts dis Merel, of vidual. “The Protection Individu- tinguish ruling by from the ease at bar al Understanding Choice: A of Consistent noting faith a not tenet of Amendment,” Religion Under the First church, Church of God. The claimant’s Chicago L.Rev. 805 Like the rest of import Secretary’s argument is that Amendment, the First the free exercise a an individual’s belief which is not tenet of should sensitive clause conscience worships church which she is not of In case individuals.12 this there was protected by belief the First Amendment evidence from ALJ which the could have and thus denial of benefits to claimant finding that claimant sincerely would not violate establishment made a clause. religious presents question following refusing This of whether her belief an belief, adopted by, individual’s not but surgery.13 con- Commission, hearing 10. Walz v. Tax indicated at “[t]he surgery performed L.Ed.2d she was reluctant to have Supreme upheld religious the New York deci- abdomen because rеasons.” give exemption Subsequently, sion to an (Ap.13). to churches from the ALJ stated tax, paying property pointing out that New undergo surgery claimant is reluctant to “[t]he singled particular York religious “has not out one (Ap.14). as a result of her beliefs.” religious group” privilege. church or for the interpret We at are hesitant time “religious group” The Court’s use of term by finding latter statement the ALJ to be a makes clear that the First Amendment extends sincerity. organized officially to more than churches. upon We note that there is evidence rec- support finding sincerity which ord could It is noted that claimant’s beliefs are ones testimony in the of both claimant and her min- commonly associated fundamental Chris- by questioning ister. Claimant testified on minister, tianity, are sanctioned ALJ, alia, inter as follows: were held to be the ALJ. It is clear Why you go along did with this “Q. that claimant’s beliefs are and not surgery? suggestion of presented secular in nature. The court is not “A. Well the reason I didn’t was because problem defining types with the what ’67 when I was so ill raised Lord religious. beliefs are *7 up, everyone thought me because I would be gone, attending and I had been the doctor emphasized 12. Cases have a often the tenets of then, going going, before and and so I decid- detеrmining sect in an that individual’s claim ed, I, know, you just well Lord, it would leave to under free the exercise clause is sincere. See up.” (Ap.33-34). the and He raised me Yoder, Wisconsin v. 92 S.Ct. questioning minister on Claimant’s testified (1972). inquiry 32 L.Ed.2d 15 Such an is ALJ, alia, by the inter as follows: proper ever, helping sincerity. in to establish How- go . does one ever into the “Q. sincerity by as can be determined other hospital get by surgery to in assistance the means, supporting the mere of a absence sect hospital though healing part even divine is require pre- an individual’s belief need not a procedure, I mean . ? sumption that is belief insincere. United witness, “(The REVEREND Ballard, JAMES JACK- States v. 64 S.Ct. SON, sworn, having duly been first testified Masjid L.Ed. 1148 See also Muham- follows): Keve, F.Supp. v. 1311 at mad-D.C.C. healing you “REV. Divine JACKSON: No. (D.Del.1979); Berger, F.Supp. Stevens definitely go hospital, would not divine to the (E.D.N.Y.1977). is, healing. healing pointed . I . . Divine Wise, religious person willing

13. The ALJ discussed claimant’s be- to if a is trust out that to liefs, stopped making finding infirmity but short of a that Lord him or ail- to heal of his ment, healing person her in faith beliefs were sincere. that should trust the Lord all evidence, reviewing way. May go stated that I ALJ on? the contention not detract from statements do religious be- claimant was motivated that Sure. “Q. “A. Divine to with- liefs. would have be Lewis, you when healing. earlier said This Mrs. the aid of man for divine “Q. out it; asking you questions Judge Law Brown Lewis about I have talked to Mrs. how prohibit you your religious beliefs didn’t touched her that had she stated that Lord now surgery. willing undergoing reli- ’67, okay, You have no to from gious feelings said that she’s in so she it, surgery? undergoing through not live about take her to trust the Lord to said, that, it, you I know my, like I “A. No. I feel this is it or with and with die was, her, willing I I know, I know how ill to where came from. that she decision with me, happened willing pray I’m to and I know what this. I’m to on the Lord for wait going (Ap.35-36) know He did on God. I what her.” not back with Subsequently testified as follows: me. he for specifically, you be a would it worked . . But Do believe that God “Q. “Q. something you, to be- the сhurch akin to a mira- for followers of on reasonable miracle way does in her that Mrs. Lewis lieve the cle? Yes, yes. particular situation? “A. you generally “A. Sure. mira- Do believe that “Q. your times, they that it’s the fact You mentioned or do “Q. are confined biblical cles wondering you personal if today? I’m own belief. exist little, why help my- today. on on They could elaborate a exist I’m miracle “A. —let your you first: Does church me ask this self. . any qualifications religious prohibit you question: or have If the Let me ask this “Q. surgery persons undergoing against or treat- you you were told to where situation arose ment medical science? undergo surgery, pressing not had undergo No. you ‍‌‌​‌​‌‌​​​​​​‌​​​​‌‌‌​‌​‌‌​‌​‌​​‌​‌​​‌​‌‌​​​‌‌‌​‍“A. must but that medical reasons surgery then, Why, reasonable for growth your would it be in “Q. to have the order removed, Lewis case? you Mrs. in this how would feel? abdomen area ’67, Well, stated, that in just “A. I think as she I feel I I feel like now. “A. would she said? same decision. would have the you Yeah. Well, “Q. “A. refuse then You mean would “Q. pointed out that here go? particular during had this Lord touched “A. Yes. any medical sci- without intervention of you undergo surgery, time If were made to “Q. Now, basis, what the Lord surgery, gen- this that you actually undergo ence. on did and eral, during particular peri- done that you your had od, do feel that beliеfs on, willing to the Lord now you she’s trust be interfered with if were made would Bible, upon Bible and the and based undergo surgery? To remove this tumor? upon healing. Okay, based divine my religious teaches beliefs be inter- “A. Would this, say the Lord I’ll she want to trust fered with? manner, pastor, carry and as this they you would be? Do feel that “Q. her, Bible, knowing just believing I in the I faith But I also feel if have “A. No. highly. very sanction this to that. I I should be entitled believe think n way: Sup- put you Let it to me “Q. Now, you say . “A. when a mira- pose law that said to correct there were a cle, anything per- now like I feel that that a condition, undergo surgery, you your must Lord, son that is a believer in the that law, obeying that and any might person Lord do for that without the aid command, undergo you sur- sort of had man, a miracle. that’s That’s miracle your, you re- gery, moved, had the tumor had Now, itself. this is what I feel Mrs. Lewis you those circum- do feel under medication, has seen here. Without and the your would beliefs stances through prayer, I Lord traced and think she it interfered with? maybe said talking this time we was earlier — again? you repeat that “A. Would prayer it she had in ’67 —that Perhaps I’d I could back to it. come “Q. brought forth miracle. pursue at like to it Reverend Jackson *8 continuing “. . . also point (Ap.49-50) if I could.” just waiting through prayer, for the Lord and surgery performed note the in We (Ap.54-55) to continue to work with her.” opinion, dissenting was seven referred to in the ambiguous ques- answers to the Claimant’s healing” in years “miracle before claimant’s tions cited not seem to us to the dissent do testimony quoted to her 1967 which led 1978 insincerity. hearing require finding of above, magistrate’s report ex- and the repeatedly transcript shows that the claimant sincerity challenge pressly of the does religious refusing surgery asserted beliefs for (15a). religious “personal belief.” claimant’s posed questions hypothetical and that question simply comprehend, never addressed The ALJ her and her were difficult for light sincerity, answеrs, evidence out- gave upon of rise to confused some above, agree context, the dissent’s cannot with lined we relies. In those which the dissent

81 In his concurring opinion Abington stated that the framers of the Consti- 203, 231, Schempp, Dist. v. School U.S. Rights tution and the Bill of Justice Brennan said: tance of accommodating individual beliefs. In Davis v. ment’s concern for individuals: defined religion S.Ct. such matters are to be left the citizen and his of basic rights deliberate and considered “The constitutional mandate science of the nals of during [*] in the First S.Ct. 2 “Representative “The term 299, 300, peculiar delicacy, [*] gentlest Supreme postulate debate [*] Cong. of conscience 1560, 1576, > Beason, Congress, August 33 L.Ed. 637 730.” upon touch of Court has noted ‘religion’ citizen, of the relation between Daniel Carroll of spoke government 10 L.Ed.2d are, proposed and will little bear governmental and declares as a has reference to protection must be afforded claimant if her in their of the Amend judgment 15, 1789, 333, 342, Bill of to the con expresses the impor the Court that ‘the Maryland nature, Rights hand 1 An Mr. tian Scientists constitute has held that Amendment. for willfully declining to obtain medical religious belief which is not a tenet of her adopt the view that an individual’s sincere sect been denied establishment clause treatment In the case at the state. He was man lation to his God was made no cоncern of In worship toleration “. ment which Supreme sum, is a . religious as he . to cure remediable the verity we believe that belief of conflicting benefits due to fashioned a charter of envisaged Court of the United States pleased bar, beliefs. As the religious protected by the claimant requires of his granted and to answer to no the widest “justifiable views. Man’s re- religious beliefs of Chris- the decisions of that the same ailments, adherence the First may Secretary right possible govern- views.” cause” have Creator, one’s view of his relations to his religious beliefs are sincere. obligations they impose and to the оf record, view the state of the where character, being reverence for his explicit finding there has been no or conclu- and of obedience to his will. It is often sincerity religious sion on the of claimant’s confounded with the cultus or form of belief faith or divine requiring worship sect, of a particular but is distin- (see her to refuse on her abdomen guishable from the latter. The first 13), note we will vacate district court Constitution, amendment to the in declar- granting summary judgment order for de- ing Congress shall make no law re- fendant, and remand the case to that court specting religion, establishment of entry remanding of an order the case to thereof, forbidding the free exercise Health, Secretary Education and every intended to allow one under the Welfare for further evaluation and consid- jurisdiction of the United to enter- States eration, light opinion, of this of the dis- tain such respecting notions his relations ability plaintiff under 42 U.S.C.A. to his Maker they impose and the duties 423(d) and 20 C.F.R. 404.1507 § may approved judgment conscience, and to exhibit his sentiments ALDISERT, Judge, dissenting. Circuit in such form worship may as he think proper, . .” My majority difference with the tracks a Ballard, Similarly, compass. disagree narrow I United States do not exposition appropriate 88 L.Ed. their Supreme (1944), where the Court recognized teachings relating an indi- Court to first amend- vidual’s claim that he was a divine messen- ment beliefs. I differ with their ger possible belief, of God as a application precepts of these to the record sincerity of her belief. This is a matter for *9 ALJ, fact, subject assertion that claimant has failed to sustain her ‍‌‌​‌​‌‌​​​​​​‌​​​​‌‌‌​‌​‌‌​‌​‌​​‌​‌​​‌​‌‌​​​‌‌‌​‍as the finder of to Appeals Council, concerning proof to determine.

burden of as a matter of law 82 note, majority Maj. Op., 36. As the App. at implicit and explicit and to the this case

in are sect n.12, 79 the tenets at Judge, Law of the Administrative findings sinceri- of Mrs. Lewis’ as evidence relevant Ap- which, turn, approved were however, is the claim- persuasive, ty. More peals Council. she testimony. testified that She ant’s own for an additional I would not remand church, Jackson’s of Reverend is a member litigant was although the hearing because God, App. of the Church congregation court, is not entitled day to a entitled 35, previously sub- and that she had at repair inept her factual to a return visit to surgery in 1960. gynecological mitted to her first presentation. presented That she and Indeed, undergone a dilatation she had the.hearing can- contention at amendment C) one of the (D procedure, сurettage ALJ summarized gainsaid. That the not be alleviate recommended to very procedures cannot be denied: “The claim- position her at 12. App. present her condition. See undergo surgery as ant is reluctant asked, separate on two specifically When at 14. religious App. her beliefs.” result of counsel, submitting if by her own occasions litigant this a second give I see no reason to with her reli- interfere surgery would her case. prove beliefs, chance to “No”: she answered gious Lewis, earlier when Q. you said Mrs. me convinces reading of the record My asking you Judge Law Brown to dem- in her burden that clаimant failed beliefs your religious questions, that to submit to sur- that her refusal onstrate undergoing prohibit you from didn’t religious strongly held gery was based on religious feel- You have no surgery. Verner, v. beliefs as discussed Sherbert surgery? undergoing ings about not 1790, 965 398, 10 L.Ed.2d 83 S.Ct. said, that, like I I know I feel A. No. v. District (1963); Abington School how ill I came from. I know where I 1560, 10 83 Schempp, 374 U.S. S.Ct. was, happened to I know what v. Bal- (1963); L.Ed.2d 844 United States me, back on God. going and I’m not 882, 886, lard, S.Ct. U.S. He for me. I know what did Beason, (1944); L.Ed. 1148 and Davis subsequently Her counsel App. at 49-50. 33 L.Ed. U.S. S.Ct. re- slightly question, returned majority opinion deems Sher Although the favorable an- for a more phrased, hoping neglects it controlling, bert v. Verner swer: importаnt Court’s observation “[n]o undergo sur- Q. were made to you If con in this case question has been raised undergo did actually you gery, sincerity appellant’s cerning the feel that you do general, surgery, n.1, 83 at at 399 beliefs.” inter- would be beliefs your religious 1791 n.1. un- made to you if were fered tu- To remove dergo surgery? that claim- this case shows The record in mor? proving ant to meet the burden failed surgery rests on sincere her aversion to be inter- beliefs my religious A. Would is, example, the There beliefs. fered with? minister, Reverend testimony of claimant’s would be? they Q. you Do feel Jackson, teachings of James I have faith to I also feel if A. No. But surgical proscribe do not particular church I be entitled I think should believe procedures: that. church, Well, your ALJ: would it does to show statements tend at 51. These Id. normally going frown on Mrs. Lewis’ forego that Mrs. Lewis’ decision surgery? a conflict between was not based on practice.* medical religion and conventional A: No. * put comprehend, gave questions, emphasis, confused were rise to some These it bears answers, Maj. upon majority relies.” which the dissent her counsel. The refer to questions Op., “hypothetical questions these at n.13. posed to her were difficult for her to [that] *10 record, I On the basis would hold

that claimant failed to sustain her burden proof compliance to excuse with 20 I

C.F.R. 404.1507 and would affirm judgment of the district court. INTERNATION- METROPOLITAN

In re Inc.; Mining,

AL, INC., Fran-Ru Metro Inc.; Inc.; Aviation,

Enterprises, MII Inc., Systems, its Restaurant

and MII subsidiaries,

wholly Debtors. owned Equibank, N.A.

Appeal of

No. 79-1282. Appeals,

United States

Third Circuit. Rule Circuit Third under

Submitted 16, 1980.

12(6) Oct. 22, 1980.

Decided Feb.