The case is accordingly one of failure of proof, and the finding of the ALJ that disability had not been shown to have begun on or before March 31, 1972, is supported by substantial evidence, especially since it includes a finding on credibility.
In other appeals, as well as in this one, the court has observed a tendency of claimants to rely on examination reports obviously prepared to support worker's compensation claims. They are, of course, admissible, but are not necessarily entitled to much weight because they are geared to entirely different statutory tests of disability than those applicable to claims as defined by section 223(d)(1) of the Act. It is also well and widely known that in worker's compensation cases the claimant's medical examination reports are met by like reports obtained by the employer's insurance carrier which, in a contested case, will reflect different evaluations. Despite the large volume of disability appeals, the court has not seen a single hearing record in which the employer's medical reports have been provided along with those obtained by the claimant.
The administrative processing of social security disability claims constitutes a difficult task because the procedures are intended to be as simple and informal as possible so that the claimant is not burdened with the expense of an adversary proceeding. Even at hearings, the ALJ is expected to be as helpful as possible to the end that valid claims may be approved. In this context, an ALJ can hardly be faulted for giving little weight to adversely prepared examination reports, obviously obtained to support a workers compensation claim (or, perhaps, an auto accident law suit), when they are selectively presented without the reports obtained by the employer or its carrier.
It may be prophylactic in such cases for the ALJ to ask for such contrary reports and to require their production. His task is difficult enough as it is, and ought not to be made more difficult by failure to produce all available medical reports.
At argument, the court reserved for further briefing on the question of the legal effect of an interruption of disability. In general, disability benefits allowable continue only so long as the disability continues. The answer provided, with which the Secretary agrees, is that under 20 CFR § 404.116(e), any quarter which is part of a period of disability established for the individual making claim is not counted as part of the 40 quarter period used to determine fully insured and currently insured status.
The question was asked because the 1977 Martland clinic record did not show disability as defined by the Act, and since the gunshot and nephrectomy were in 1968, and the last date when the earnings requirements were met was March 31, 1972, it seemed that the subject of the question might provide an answer on the assumption that a statutory disability could be shown for 1978-1979.
As it turns out, it makes no difference in this case because in order to obtain the exclusion of any quarter from the 1968 incident and the March 31, 1972 expiration date, a statutorily defined disability would have had to be established between those dates.
In the common meaning of the term, Minitee was no doubt fully disabled while in the hospital for removal of the right kidney, for the clinical follow-up of a month or so after that, and possibly for some time beyond. But this is not the same as a statutorily defined disability, which must be the result of an impairment which can be expected to result in death, or which has lasted or can be expected to last for a continuous period of at least 12 months.
Since there was a failure of proof meeting this standard during the period October, 1968 through March 31, 1972, there is no excluded quarter in the 40 quarter count.
Submit order affirming the Secretary's final decision.
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