20 CFR 404.921

SSR 79-3c

SCHWIDDER v. CALIFANO, 1A Unempl. Ins. Rep., ¶ 15,660 (N.D. Iowa, 11-21-77)

The claimant contended that failure to follow the rotational method of selecting a hearings examiner (since designated as an Administrative Law Judge) was prejudicial and a violation of her due process rights. The court denied her request. Held, it is not for the courts to specify which examiner should sit on a particular case and without a showing that a decision is arbitrary or capricious, the court had no reason to delve into administrative procedures.

McMANUS, Chief District Judge:

This matter is before the court on claimant's unresisted September 26, 1977, motion to remand to the Secretary of Health, Education and Welfare for the taking of additional evidence concerning claimant's alleged disability and defendant's motion for summary judgment.

After a hearing on December 18, 1975, the administrative law judge denied disability benefits. On June 23, 1976, the Appeals Council of the Social Security Administration affirmed that decision making it the final decision of the Secretary. On April 26, 1977, the defendant moved for summary judgment.

In support of her motion to remand, claimant submitted a letter from her physician dated September 12, 1977, restating a previous report on her condition and adding information concerning new medical problems afflicting claimant. There is no indication that these problems existed at the time of the claimed disability. The new evidence may be grounds for a new disability application; however, this court cannot now order the Secretary to consider evidence which was never part of the record and which in fact seems to be based on a malady which did not exist at the time of hearing. Cf. Kemp v. Weinberger, 522 F.2d 967 (9th Cir. 1975).

Defendant moved for summary judgment asserting that the hearing examiner and appeals council decisions were based on "substantial evidence." See Richardson v. Perales, 402 U.S. 389, 402 (1971); Roark v. Califano, No. 77-1557 (8th Cir., October 13, 1977); Reams v. Finch, 313 F. Supp. 1272 (N. D. Ia. 1970).[1] If the court agrees that there is substantial evidence to support the decision, it must affirm. Claimant bears the burden of proving by substantial evidence that she is disabled. Easttam v. Secretary of Health, Education, and Welfare, 364 F.2d 509, 511 (8th Cir. 1966).[2] This court will not balance the evidence or enter into de novo review.

The record in this case indicates that though significant evidence may lie with claimant, there is substantial evidence to support the Secretary's findings that despite serious gastrointestinal disorders, recurrent spells of weakness and nausea, and complaints of swelling, claimant's impairments were "not so severe so as to preclude all competitive work activity for any continuous 12-month period." The hearing examiner concluded that Mrs. Schwidder had the mental and physical capacity to engage in substantial gainful activity and that jobs for which she was suited existed in substantial numbers in the State of Iowa.

Specifically the record indicates that after an operation for a duodenal ulcer and a subsequent reconstructive procedure in 1969, the claimant has had gastrointestinal problems varying in degree from mild to serious. She was evaluated at the Mayo Clinic in Rochester, Minnesota, in May 1975 where Dr. A. J. Cameron reported tests showed no ulcers. He stated that she should be treated for dumping syndrome and could "return to any work she feels able to tackle."

Her own physician, Dr. J. L. Powers, reports that she is "precluded from any gainful employment in my medical opinion."

Dr. A. E. Montgomery reported that the claimant's prognosis was essentially good "if properly motivated."

Claimant testified she becomes sick after doing housework and that her spells of vomiting, swelling and weakness have been getting worse, and that she suffers from constipation.

From this record we cannot upset the Secretary's decision denying benefits.

The claimant raises the unique argument that selection of hearing examiners out of rotation prejudiced her claim. In conclusory manner, she states that some administrative law judges (ALJ) have been excluded from sitting on social security disability cases, thus violating her due process rights.[3] Claimant requests the court's permission to subpoena witnesses to testify regarding the procedures for assigning ALJ for social security cases in Iowa. She cites Ramspeck v. Trial Examiners Conf., 345 U.S. 128 (1953) rehearing denied, 345 U.S. 931 for the proposition that regulations relating to rotation must be clear and definite in putting the power of assignment beyond the control or suggestion of litigating agencies. That, however, would seem to be the theme of Justice Black's dissent.[4]

The majority noted with approval that even within certain agencies, examiners were classified as to expertise and competence and assigned to different type cases. Id. at 134-135. It is not for the courts to specify which examiners should sit in particular cases. That function is "committed to the experience and expertise of the Civil Service Commission . . ." Id. at 137.

Ensuring objectivity and freedom from the potential tyranny of agency assignments is primarily the responsibility of the legislative and administrative branches. Absent a showing that the ALJ's conclusions were arbitrary or capricious, the court finds no reason to delve further into administrative procedures.

There being no substantial factual issues, it is therefore ORDERED

1. Claimant's motion for remand for further hearings is denied.

2. Defendant's motion for summary judgment granted.

3. Claimant's request for hearings on her due process claim denied.

[1] In relevant part, 42 U.S.C. 405(g) (1976) provides:

"The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, . . ."

[2] An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require. 42 USC § 423(d)(5).

[3] In relevant part 5 USC § 3105 (1966) provides that:

". . . Hearing examiners shall be assigned in rotation so far as practicable . . . ."

[4] Justice Black, dissenting:

In fact, the Administrative Procedure Act appears to contemplate that all examiners employed by a particular agency stand on equal footing in regard to service and pay. A central objective was to prevent agency heads from using powers over assignments to influence cases. Unlimited discretion in assignment would lead to subservient examiners, it was thought. 345 U.S. at 145.

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