author: McMILLAN, District Judge.

text:
    Patrick H. HYATT; Herman O. Caudle and Mary P. Lovingood, on behalf of themselves and all others similarly situated, Plaintiffs, and North Carolina Department of Human Resources, Disability Determination Services, Plaintiffs-Intervenors, v. Margaret M. HECKLER, or her successors in office, Secretary of the United States Department of Health and Human Services, Defendant.
    No. C-C-85-655-M.
    United States District Court, W.D. North Carolina, Charlotte Division.
    Sept. 11, 1985.

      Charles McBrayer Sasser, Legal Services of Southern Piedmont, Inc., John Wester, Robinson, Bradshaw & Hinson, Independence Center, Charlotte, N.C., for plaintiffs.
    Jeffrey L. Bishop, Charlotte, N.C., for plaintiff-intervenor.
    Richard S. Poe, Asst. U.S. Atty., Charlotte, N.C., Jason Baron, Office of General Counsel, U.S. Dept, of Human Services, Baltimore, Md., for defendant.
   ORDER

McMILLAN, District Judge.

This case is before the court on plaintiffs’ second and third motions for attorney fees.

The background to this case is set out in this court’s orders reported at 579 F.Supp. 985 (W.D.N.C.1984) and 586 F.Supp. 1154 (W.D.N.C., 1984), vacated and remanded, 757 F.2d 1455 (4th Cir.1985), and the order of remand filed June 25, 1985, and will not be repeated in detail here.

In its decision reported at 586 F.Supp. 1154, the court set in detail the Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) and Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974) factors and their applicability to a fee award in this case. There is no need to repeat that litany once again. The issue presented to the court at this time is whether plaintiffs’ fee award should be reduced to account for the issues on which the Appeals Court reversed this court’s judgment and on which defendant might therefore be said to have prevailed.

Before addressing the specific issue of reduction of the award, the court will address the proposition advanced by defendant that plaintiffs are no longer prevailing parties as a result of the Fourth Circuit’s decision. She argues that because the injunction against non-acquiescence was vacated, and because that was “all plaintiffs were asking for in bringing this suit,” the plaintiffs are no longer prevailing parties and should be awarded no attorney fees. The court does not accept that contention. It defies the imagination to concoct an interpretation of this suit that would make plaintiffs anything but prevailing parties. Indeed, as discussed below, the court finds that, despite certain modifications of the original judgment, plaintiffs’ achievements remain so substantial as to justify the court in finding that they have obtained excellent results and to award all but a small portion of the fees requested.

In vacating this court’s injunction against the defendant’s policy of non-acquiesceriee, the Fourth Circuit specifically stated that “the Secretary should not deem vacation of the injunction as approval of the policy [of nonacquiescenee]” and that “we will not assume that the Secretary will disregard the views expressed in the Conference Report [to the 1984 Social Security Disability Reform Act] about the Secretary’s policy of nonacquiescence in circuit law.” (Hyatt v. Heckler, supra, 757 F.2d at 1460, 1461). The defendant appears to have taken the admonitions of the courts and Congress to heart. On June 3, 1985, defendant issued a news release announcing that the Social Security Administration was abandoning, in the overwhelming majority of cases, its “practice of routinely not applying a circuit court’s interpretation beyond the decision in the particular case.” In its Interim Circular No. 185, apparently issued simultaneously for inclusion in the Office of Hearings and Appeals Handbook, defendant states

SSA has been subject to increasing litigation in recent years involving a myriad of program issues. One of the most troubling questions which has been raised by Congress, the Courts, and by the public at large has been the issue of nonacquiescence. Recently, nonacquiescense has been the subject of various law suits challenging its legality. Moreover, Congress, in enacting the 1984 Disability Amendments, indicated in a Conference Report on that legislation that the Secretary should seek a resolution of the issue. These developments have led to a reexamination of the agency’s practices. As a result, the Secretary has decided to modify the long-standing policy and has established a procedure described below. These procedures require that particular circuit court decisions will be considered prior to a final decision of the Secretary being rendered on the case.

The nexus between this suit and the modification of the Secretary’s admittedly “long-standing policy” of nonacquiescence is thus admitted by the Secretary herself.

More fundamentally, plaintiffs have achieved the result for which the suit was originally filed and pursued. In order to be a prevailing party, “what always must occur is the establishment of a right or the proscription of a wrong.” Smith v. University of North Carolina, 632 F.2d 316, 347 (4th Cir.1980). Plaintiffs have been granted the right to new hearings under lawful standards. This relief would not have been achieved for most of the plaintiffs benefited by the order on remand filed June 25, 1985, had the suit not been filed and prosecuted to this point. Although the intervening legislation made the remands of the Dotson class “automatic,” the members of the class who were not already in federal court benefited only because a class action had been filed in their behalf. The Myers and Martin class members would not have been guaranteed new hearings at all. The scope of the reconsideration of the claims of the latter two classes’ members is beyond that which would have been required by an individual remand in those cases already filed in federal court. Plaintiffs’ filing of the Hyatt suit, the motions for class certification and injunctive and declaratory relief, were all necessary to bring to the plaintiffs’ classes the relief obtained by the issuance of the June 25, 1985, order of remand.

Defendants’ exclusive focus on the vacation of the injunction against nonacquiescence is misplaced. That approach attempts to trivialize what has been a more than significant effort on behalf of and victory for the rights of the plaintiffs.

Defendant further argues that plaintiffs are not prevailing parties because the classes gaining benefits from this suit have shrunk drastically because of the reversal by the Fourth Circuit of the inclusion in the Martin and Myers classes of persons who did not exhaust administrative remedies or received adverse decisions from the Appeals Council more than 60 days prior to the filing of this suit but did not file suit pursuant to the requirements of 42 U.S.C. § 405(g). The Secretary brings forward figures (not previously presented to the court) that the original Hyatt classes, in total, may have included over 60,000 persons entitled to receive review of their claims but that the class has now shrunk to “only” between 10,000 and 15,000 people.

Although this reduction might entitle defendant to some reduction in the amount of fees awarded should it be found that a substantial portion of counsel’s time was spent solely on those individuals’ claims, this development does not change plaintiffs’ status as prevailing parties. The fact remains that at least 10,000 persons and probably more, in North Carolina now have the opportunity for reconsideration of their disability claims where they had no such opportunity before this suit was filed and won. Even those persons benefited by the Social Security Disability Reform Act of 1984 (the Dotson class in particular), except those persons whose cases were already pending in federal court, would not have had the benefit of review had the class not been certified in Hyatt prior to September 19, 1984. The Myers and Martin class members who remain in the suit had no provision made for re-review of their claims under the new act.

Furthermore, as will be set out more fully below, the Supreme Court has specifically stated that the number of persons benefited in a particular lawsuit is not a “consideration of significance in calculating fees,” Blum v. Stenson, 465 U.S. 886, -, n. 16, 104 S.Ct. 1541, 1549, n. 16, 79 L.Ed.2d 891, since, “presumably, counsel will spend as much time and will be as diligent in litigating a case that benefits a small class of people, or, indeed, in protecting the civil rights of a single individual.” Id.

In conclusion, the court finds that plaintiffs remain the prevailing parties in this case and that the government’s position has not been substantially justified for the reasons set out in the orders previously filed and the matters discussed herein. Therefore, plaintiffs are entitled to an award of attorney fees.

The court has already set out in its earlier attorney fee order the factors to be considered in determining the amount of fees to which plaintiffs are entitled and their applicability to this case. With a few minor adjustments, they remain applicable here. The central issue is whether, considering the Fourth Circuit’s decision, the 1984 Disability Reform Act, and the final order entered in this case on June 25, 1985, a reduction in the award of fees is warranted.

Upon reviewing the pleadings, trial transcript and records of other hearings conducted in this case, the Fourth Circuit’s decision and the final order of remand, the court finds that the plaintiffs achieved exceptional results, despite reductions in the size of the class because of the Fourth Circuit’s ruling on the merits of the legal question of exhaustion and the applicability of the requirements of 42 U.S.C. § 405(g).

Defendant argues that the Supreme Court’s decision in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), requires substantial reduction, if not elimination, of the award requested. In Hensley, the Supreme Court held that where a plaintiff presents “in one lawsuit distinctly different claims for relief that are based on different facts and legal theories” and one or more of those “distinctly different claims for relief” is unsuccessful, “the congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim.” Id. at 435, 103 S.Ct. at 1940.

There are two claims which defendant contends were unsuccessful here — the request for an injunction against the Secretary’s policy of nonacquiescence and the requests for relief for members of the Martin and Myers classes who did not follow the requirements of 42 U.S.C. § 405(g) and who were, therefore, removed from the class by the Fourth Circuit’s ruling.

The court has discussed the first claim at length, above, and finds no basis to penalize plaintiffs for their work which, while not directly judicially enforced, did by defendant’s own public acknowledgment contribute to a change in her policy more widespread than ever possible in any one lawsuit. See, Bonnes v. Long, 599 F.2d 1316, 1319 (4th Cir.1979), after remand, 651 F.2d 214 (1981), cert. denied, 455 U.S. 961, 102 S.Ct. 1476, 71 L.Ed.2d 681; Smith v. University of North Carolina, supra.

As to the second claim, this lawsuit does benefit directly a reduced number of persons as a result of the rulings by the Fourth Circuit on the legal issues of exhaustion of administrative remedies and the applicability of Section 405(g). However, this element of the case can not be said to represent a separate “claim for relief” in the language of Hensley. Hensley is clear in that what is referred to are separate substantive claims for relief which are severable from the rest of the litigation. The Court in Hensley states:

It may well be that cases involving such unrelated claims are unlikely to arise with great frequency. Many civil rights cases will present only a single claim. In other cases the plaintiff’s claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.
Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally, this will encompass all hours reasonably expended on the litigation and indeed in some cases of exceptional success an enhanced award may be justified. In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit____ The result is what matters.

Id. 461 U.S. at 435, 103 S.Ct. at 1940.

A comparison between the issues involved in this ease and the issues involved in Hensley illustrates the difference between separate, distinct claims for relief and interrelated claims based on a common core of facts or related legal theories. In Hensley, the plaintiffs were complaining about different, severable aspects of their conditions of confinement. In this case, the plaintiffs were complaining about the Secretary’s treatment of their claims for disability benefits (in relation to circuit court precedent) in three separate areas. Plaintiffs achieved success in each of those three areas. Cases involving Dotson, Myers and Martin claims are all being remanded to the Secretary for reconsideration. The loss of the exhaustion issue represented only a reduction in the size of the Martin and Myers classes, not a disapproval of their substantive claims for relief. Indeed, those persons remaining in those classes have obtained new full-scale review of their claims at the administrative level with the later opportunity to appeal adverse decisions to the courts pursuant to the requirements of 42 U.S.C. § 405(g). Additionally, as noted above, the Supreme Court has cautioned that the number of persons benefited is not of considerable significance.

The court finds that plaintiffs have achieved excellent results, and as stated in its earlier order, would be entitled to enhancement of their fees but for the limitations imposed by the act under which fees are claimed. According to Hensley, based on the finding that excellent results have been obtained, plaintiffs are entitled to a fully compensatory fee for all hours reasonably expended.

Defendant does not question that plaintiffs’ counsel’s hours were reasonably expended, although she does contest their right to compensation for all of the hours. Although Hensley would seem not to require any reduction, the court will order some reduction to account for the time spent litigating the exhaustion and § 405(g) issues. That issue did not represent a large portion of counsel’s efforts in this court, but it appears that a not insignificant amount of time was spent by counsel defending this court’s order in their favor on this point in the circuit court. The court finds that, in fairness, some reduction in the amount of fees required to be paid by the government should be made. The court has reviewed the pleadings, and finds that a reduction of 5% in fees for the time spent researching and arguing the exhaustion and § 405(g) requirements issues is ample.

The court emphasizes that it finds this fee request very modest in light of the labor expended on behalf of the plaintiffs over a relatively brief time span and because of the magnitude of this suit and the opportunity for relief brought to thousands of our most needy and deserving citizens— the workers of our state who, because of difficulties beyond their control, have lost the ability to perform substantial gainful employment and who now ask to be allowed to draw on the contributions they and others have made to our Social Security system.

The court’s fee awards of April and May, 1984, are brought forward in the amount of $89,728.85 in fees for plaintiffs’ counsel (intervenor’s counsel is no longer entitled to a fee award because of the dismissal by the Fourth Circuit of the intervenor’s complaint) and expenses and costs in the amount of $2,056.26.

Since the last fee award through July 25, 1985, additional counsel have been substituted in this case and counsel have devoted many more hours to the case. Charles McBrayer Sasser, a 1981 University of North Carolina School of Law graduate and legal services attorney specializing in Social Security disability law, has devoted 303 hours to the case as lead counsel for legal services. His expenses total $857.70.

From the firm of Robinson, Bradshaw and Hinson, which has continued to devote many exceptional hours of attorney time to this case, John R. Wester, lead counsel, has devoted an additional 299.10 hours to the case. Dan Coenen, a 1978 law graduate of Cornell Law School where he was editor-in-chief of the law review, clerked for Judge Clement Haynsworth of the Fourth Circuit and Justice Blackmun of the Supreme Court before entering the practice of law in 1981. His work on this case has been of the highest quality as reflected in the briefs and arguments of counsel, and he has devoted 307.4 hours to the case.

Robert W. Bryan has devoted an additional 41.2 hours to the case, Herman Spence III has devoted an additional 162.85 hours to the case, and David C. Wright III has devoted 21.3 hours to the case. The expenses documented by the firm total $6,740.30 since the last fee and expenses award.

Campbell Lucas Vorhoff, and Brenda Dutton Mosier, paralegals employed by Robinson, Bradshaw and Hinson, have devoted an additional 66.60 hours and 15.7 hours, respectively, to the case.

David Williams, a Harvard law school student, has devoted 25.35 hours to the case.

The court has reviewed the records and finds that the hours billed are reasonable and that plaintiffs are entitled to full reimbursement (minus the 5% overall reduction) for the time spent through July 25, 1985, negotiating and implementing the order on remand filed June 25, 1985, to this date, and pursuing the attorney fees award. The court expresses no opinion at this time on the propriety of awarding further fees for work done in furtherance of the implementation of the order on remand from July 26, 1985, forward.

The court finds that the rates of reimbursement for attorneys Sasser, Wester, Bryan and Coenen would normally be at or near $125 per hour except for the limitation in the Equal Access to Justice Act (EAJA) to a rate of $75 per hour plus an allowance for cost of living increases or where a “special factor” is present. The court finds that the special experience of the attorneys in this area (that of Wester and Coenen apparently gained through the litigation) is such a “special factor,” justifying a higher hourly rate. In addition, the current cost of living adjustment (based on figures from the Consumer Price Index of the United States Department of Labor) to the EAJA fee allows award of a fee up to approximately $95 per hour. See this court’s decision in Black v. Heckler, C-C-83-38 (order filed July 12, 1985). See also Action on Health and Smoking v. C.A.B., 724 F.2d 211 (D.C.Cir.1984). The rate for attorneys Sasser, Wester and Coenen is hereby determined to be $95 per hour.

The court finds that a reasonable rate for reimbursement of attorneys Spence and Wright is $75 per hour. The services of paralegals Yorhoff and Mosler and law student Williams should be compensated at the rate of $30 per hour, a fee comparable to that awarded by this court for the services of paralegals and law students in other comparable cases. See, Pratt v. Carolina Machinery, C-C-83-270-M (order awarding attorney fees filed March 19, 1985).

The following hours have been shown by affidavit to have been reasonably expended on this litigation from March 15, 1984, through July 25, 1985, and, multiplied by the rates found to be reasonable, above, produce the following calculations of reasonable attorney fees:

Wester ........................ 299.10 hours x $95 per hour = $ 28,414.50
Sasser ......................... 303.00 hours X $95 per hour = 28,785.00
Coenen ........................ 807.04 hours X $95 per hour = 29,168.80
Bryan .......................... 41.20 hours X $95 per hour = 3,914.00
Spence ......................... 162.85 hours x $75 per hour = 12,213.75
Wright ........................ 21.30 hours x $75 per hour = 1,597.50
Total: $104,093.55
Paralegal fees:
Vorhoff ....................... 66.60 hours X $30 per hour = $ 1,998.00
Mosier.......................... 15.70 hours X $30 per hour = 471.00
Williams ........................ 25.35 hours X $30 per hour = 760.50
Total: $ 3,229.50

The court brings forward the amounts awarded to plaintiffs for reasonable attorney fees awardable under the EAJA in May, 1984, in the amount of $89,728.85 in attorney fees and $2,056.26 in costs.

Plaintiffs are entitled to attorneys’ fees of $187,199.30 ($197,051.90 less 5%) for their services rendered through July 25, 1985, plus reimbursement for $7,598.00 in expenses. An upward adjustment will not be made for the reasons set out in the order of May 1984, 586 F.Supp. 1154, 1159.

IT IS THEREFORE ORDERED:

1. That the reasonable value of the services rendered by plaintiffs’ counsel which are properly taxable under the Equal Access to Justice Act is $187,199.30.

2. That the sum of $187,199.30 shall be paid to plaintiffs by the United States as counsel’s full and only fee for representing plaintiffs in this civil action through July 25, 1985.

3. That defendant shall also pay to plaintiffs the plaintiffs’ expenses and costs of $7,598.00.


source: Caselaw Access Project

author: BUA, District Judge.

license: Public Domain

text:
    CHICAGO DISTRICT COUNCIL OF CARPENTERS PENSION FUND, et al., Plaintiffs, v. EXHIBITION CONTRACTORS COMPANY, INC., Defendant.
    No. 84 C 5592.
    United States District Court, N.D. Illinois E.D.
    Sept. 11, 1985.
    Albert M. Madden, Hugh J. McCarthy & Associates, Ltd., Chicago, Ill., for plaintiffs.

      Bruce R. Alper, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., for defendant.
   MEMORANDUM ORDER

BUA, District Judge.

The Court’s jurisdiction in this case is predicated on § 502 of the Employees Retirement Income Security Act, 29 U.S.C. § 1132. At issue is whether the defendant employer owes delinquent contributions to the plaintiff trust funds. Both parties have filed cross-motions for summary judgment. For the reasons stated herein, the plaintiffs’ motion for summary judgment is granted and the defendant’s cross-motion is denied.

I. FACTS

The plaintiffs in this action are the trustees of three employee fringe benefit trust funds: The Chicago District Council of Car-. penters Welfare Fund, the Chicago District Council of Carpenters Pension Funds, and the Chicago and Northeast Illinois District Council of Carpenters Apprentice and Trainee Program Fund (hereinafter the “Trust Funds”). The Trust Funds receive multiemployer contributions for the purpose of providing health, welfare, pension, and training benefits for members of the Chica-' go and Northeast Illinois District Council of Carpenters, a carpenters’ labor union (the “Union”). As such, the Trust Funds are subject to the statutory provisions of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 186, and the Employees Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq.

The defendant, Exhibition Contractors Company Inc., is a company engaged in the business of storing, warehousing, and dismantling equipment used in trade shows. In the past, the defendant employed a number of Union members and was an employer contributor to the Trust Funds.

Both parties to this dispute have agreed to a statement of stipulated facts. On July 18, 1975, the defendant signed a one-page agreement with the Union. Under the terms of such agreement, the defendant agreed to be bound by the terms of the Trust Funds and a series of Collective Bargaining Agreements entered into by the Mid-America Regional Bargaining Association and the Union. The Collective Bargaining Agreements (hereinafter the “Bargaining Agreements”) obligated the defendant to make fringe benefit contributions to the Trust Funds in a prescribed amount “for each hour worked for Employer by all of those of his employees who are covered by this Agreement.” (Exhibits E, F, G and H, Sections 12.1, 13.1, 14.1). Accordingly, between June of 1978 and June of 1983, the defendant made fringe benefit contributions on behalf of its Union employees.

The dispute in this case arises because the defendant’s contributions were made in two separate ways. First, contributions were made in the prescribed amount under the Bargaining Agreement for each hour of “bargaining unit” work. As defined under the Bargaining Agreements, bargaining unit work referred to “carpentry-type” work (i.e., the setting up and dismantling of booths). Under a second method, contributions were made in a lesser amount for each hour worked by those same employees engaged in “nonbargaining unit” work. Nonbargaining unit work, as defined by the defendant, meant noncarpentry work (i.e., loading and unloading trucks and clean-up work). Contributions for nonbargaining unit work were based on the applicable Freight Handlers Union contribution rate. Since the Freight Handlers contribution rate was always less than the rate provided under the applicable Bargaining Agreements, the defendants contributed less benefits for each hour of nonbargaining unit work. In short, employees received less fringe benefits when performing noncarpentry work than when performing carpentry work. In accordance with such methods, the defendant maintained two separate payroll records for each employee. One based on the number of bargaining unit hours and another reflecting nonbargaining unit hours.

In November of 1983, pursuant to the trustees’ request, the defendant’s payroll and other records were audited for the period covering June 1978 through June 1983. The audit revealed the defendant’s “two-tier” method of making fringe benefit contributions. In response, the plaintiffs informed the defendant that contributions would have to be remitted to the Trust Funds in accordance with the contribution rate prescribed in the Bargaining Agreement. The plaintiffs concluded that contributions should have been made in the prescribed amount for nonbargaining ■ unit work as well as bargaining unit work. The present action was then instituted alleging the defendant’s contribution methods were in breach of the Collective Bargaining and Trust Agreements.

Both parties agree on the issues presented in this case. First, what standard the Court should apply in reviewing the trustees’ interpretation of the Collective Bargaining and Trust Agreements. Second, under the terms of the Collective Bargaining and Trust Agreements, whether the defendant had a contractual obligation to make fringe benefit contributions for hours worked by employees engaged in nonbargaining unit work.

II. DISCUSSION

In support of a motion for summary judgment, the moving party must demonstrate a lack of dispute as to any genuine issue of material fact. Gracyalny v. Westinghouse Electric Co., 723 F.2d 1311, 1316 (7th Cir.1983). In reviewing the record on a motion for summary judgment, the Court gives the nonmoving party the benefit of all doubts and reasonable inferences that can be drawn in its favor. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.1983).

In the present case, the parties have agreed to a statement of material facts. The central issue is the defendant’s contractual obligation to make fringe benefit contributions.

A. Standard of Review

The initial issue in this case is what standard the Court should apply when reviewing the trustees’ interpretation of the Trust and Bargaining Agreements. The trustees contend that the Court’s review is limited to determining whether the trustees’ decision was arbitrary and capricious. The defendant, however, claims that the interpretation of collective bargaining and trust agreements is an issue of law which is freely reviewable by this court. In light of the overwhelming weight of authority, this Court will apply an arbitrary and capricious standard in reviewing the trustees’ decision.

It is well settled that trustees of pension plans have full authority and broad discretion in dealing with questions involving benefit coverage and eligibility. Adams v. N.J. Brewery Emp. Pen. Trust Fund, 670 F.2d 387, 388 (3d Cir.1982); Johnson v. Botica, 537 F.2d 930 (7th Cir.1976). The Court’s role is limited to ascertaining whether the trustees’ decision is arbitrary, capricious, or an abuse of discretion. Martinez v. Swift and Company, 656 F.2d 262 (7th Cir.1981); Rosen v. Hotel and Restaurant Employees and Bartenders Union of Phila., 637 F.2d 592 (3d Cir.1981); Tomlin v. Board of Trustees, 586 F.2d 148 (9th Cir.1978); Nelson v. Joyce, 404 F.Supp. 489 (N.D.Ill.1975). In other words, the sole limitation on the trustees is that their actions are not made in bad faith when considered in light of the pension plans’ language. Wardle v. Central States, 627 F.2d 820 (7th Cir.1980); Bayles v. Central States, Southeast, Etc., 602 F.2d 97 (5th Cir.1979); Bueneman v. Central States, Southeast & Southwest, 572 F.2d 1208 (8th Cir.1978).

In the present case, the terms of the Trust Funds state that:

The Trustee shall have the power to: Construe the provisions of this instrument and any amendment of it as well as the pension plan formulated by them and any amendment of it and the construction adopted by the trustees acting in good faith shall be binding upon the Council, the Association, the unions and all employers and employees;
Pension Fund Trust (Ex. B). Art. VI, § 2; see also Welfare Fund (Ex. C), Art. IV and Apprentice and Trainee Program (Ex. D) Art. VI.

In addition, each of the Bargaining Agreements provides that:

12.2 The Employer agrees to be bound by the Agreement and Declaration of Trust establishing the Chicago District Council of Carpenters Health and Welfare Fund, by any present and future amendments thereto and irrevocably designates as his representative on the Board of Trustees such Trustees as are named in said Agreement and Declaration of Trust, as Employer Trustees, together with their successors selected in the manner provided in said Agreement and Declaration of Trust as it may be amended from time to time, and agrees to be bound by all action taken by said Employer Trustees pursuant to the said Agreement and Declaration of Trust as amended from time to time.
See Collective Bargaining Agreements, (Exhibits E, F, G and H) Art. XII, §§ 12.2, 13.2, 14.2.

In the case at bar, the trustees are given the exclusive authority to construe the provisions of the Trust Funds. Furthermore, as provided in the Trust and Bargaining Agreements, the defendant employer has been given adequate representation on the Board of Trustees. The trustees are in the best position to fairly ascertain the meaning of the Trust and Collective Bargaining Agreements. The Court is therefore extremely hesitant to interfere with the trustees’ interpretation of the plan. Bueneman, 572 F.2d at 1209 (8th Cir.1978).

The defendant relies exclusively on Central States etc. v. Central Transport, Inc., 698 F.2d 802 (6th Cir.1983), for the proposition that this Court should apply a de novo standard in reviewing the trustees’ decision. The Court finds the defendant’s argument to be unpersuasive. In Central States, the court was never faced with the issue of what standard it should apply in reviewing the trustees’ decision regarding pension benefits. Therefore, the holding in Central States is distinguishable from the facts in this case. The defendant points to language in Central States which indicates that the interpretation of bargaining and trust agreements raises freely reviewable issues of law. Central States, supra, 698 F.2d at 805. However, the court in Central States also concluded that the trustees’ decision interpreting such agreements was subject to an arbitrary and capricious standard. Id. at 806.

In this case, the Court is reviewing the trustees’ interpretation of the Trust and Bargaining Agreements. Therefore, the Court concludes that the trustees’ decision should only be disturbed if it is arbitrary and capricious.

B. The Trust and Bargaining Agreements

The fundamental issue presented is whether the trustees’ interpretation of the Trust and Bargaining Agreements is arbitrary and capricious. The plaintiffs contend that their decision is supported on several grounds. First, the plaintiffs point to their statutory duty to operate the Trust Funds solely for the benefit of the employees. Second, the plaintiffs’ decision deters the defendant from “inaccurately” segregating bargaining unit and nonbargaining unit hours. Third, and foremost, the plaintiffs believe that the language of the Trust and Bargaining Agreements supports their interpretation.

The defendant argues that it is obligated to pay fringe benefit contributions only when an employee performs bargaining unit work. Under the Bargaining Agreements, an employer is obligated to pay contributions “for each hour worked for Employer by all of those of his Employees who are covered by this Agreement.” The defendant asserts that, by their express terms, the Bargaining Agreements and Trust Funds cover only employees who perform bargaining unit work. Therefore, the defendant concludes that no obligation exists to contribute for nonbargaining unit work. In short, the defendant contends that the trustees’ decision is contrary to the plain language of Trust and Bargaining Agreements.

In reviewing the trustees’ decision, it must be remembered that a pension plan is a contract between an employer and its employees. Audio Fidelity v. Pension Ben. Guaranty Corp., 624 F.2d 513 (4th Cir.1980); Monsanto Co. v. Ford, 534 F.Supp. 51 (D.C.Mo.1981); see also Childs v. National Bank of Austin, 658 F.2d 487 (7th Cir.1981). When applying the arbitrary and capricious standard to the trustees’ action regarding a pension plan, the Court will look to a number of factors. Dennard v. Richards Grays Inc., 681 F.2d 306 (5th Cir.1982); Donovan v. Carlough, 576 F.Supp. 245 (D.D.C.1983) aff'd., 753 F.2d 166 (D.C.Cir.1985). In both Dennard and Donovan, the courts enumerated several factors to be considered in reviewing the trustees’ decision regarding pension plan benefit payments. These factors include: (1) whether the trustees’ interpretation [of the pension plan or trust] is contrary to the plain language of the provision in question; (2) whether the trustees’ interpretation is consistent with the purposes of both the disputed provisions and overall plan; (3) whether the trustees’ interpretation renders other provisions of the plan superfluous. Donovan, supra, 576 F.Supp. at 249; Dennard, supra, 681 F.2d at 314.

In the present case, the provision covering contributions provides that:

Each Employer working in the jurisdiction of the Chicago District Council shall pay into the Chicago District Council of Carpenters Welfare Fund (hereinafter referred to as “Health and Welfare Fund”):
$0.78 per hour effective June 1, 1976 for each hour worked for Employer by all of those of his Employees who are covered by this Agreement.

An employer must contribute to the fund for each hour worked by an employee covered under the agreement. The question is whether the employee is covered under the Bargaining Agreement.

The Bargaining Agreement clearly states that it covers all members of the Carpenters Union. The Agreement does not state that only Union members performing “carpentry-type” work are covered. In fact, a close reading of the Bargaining Unit clause shows that the unit consists of Union employees engaged in work “including, but not limited to” carpentry work. This indicates that the Bargaining Unit clause was not intended as an “all-inclusive” provision. In short, the Court finds that the Agreement covers all work performed by members of the Carpenters Union who were employed by the defendant.

Each Trust Fund requires that:

Each employer shall pay to the trustees an amount equal to sixty-three cents per hour for each hour of work for an employer party hereto by any employee on whose behalf any local union acts as a collective bargaining agent.
The contributions, as aforesaid, shall accrue with respect to all hours worked by any employee.
Art. IV (Exhibits B & D), Pension Fund and Apprentice Fund Trust; Art. Ill (Exhibit C), Welfare Fund Trust.

Thus, each trust fund requires contributions for each hour worked by a Union employee, regardless of the type of work performed. This plain language is consistent with the trustees’ interpretation of the Bargaining Agreements.

In addition, the trustees’ interpretation is consistent with the purposes of the Trust Funds and Bargaining Agreements. Such purpose is to provide health, welfare, and pension benefits to the employee beneficiaries and their families in such form as trustees may determine. Art. 12.3 of Exhibits E, F, G and H. The trustees’ decision clearly carries out this policy.

Where the provisions of a pension or trust fund are subject to more than one reasonable interpretation, the courts will not substitute their judgment for the trustees. Childs v. National Bank of Austin, 658 F.2d 487 (7th Cir.1981); Gordon v. ILWU-PMA Ben. Funds, 616 F.2d 433 (9th Cir.1980); Tomlin v. Board of Trustees, etc., 586 F.2d 148 (9th Cir.1978). In Tomlin, the Ninth Circuit Court of Appeals stated:

We must be ever mindful that it is for the Trustees, not the courts, to choose between two reasonable alternatives. As the court said in Roark v. Lewis, 130 U.S.App.D.C. 360, 364, 401 F.2d 425, 429 (1968): “The court is fully cognizant of the internal pressures asserted on the trustees: the size of the pie is fixed and variations can be achieved only by changing the size of the number of the slices. There is no camouflaged design on the part of the Court to second-guess the discretionary judgments of the trustees____ It is for the trustees, not judges, to choose between various reasonable alternatives.”

Tomlin, supra, 586 F.2d at 151.

In the present case, the Court finds that the trustees have reasonably interpreted the Trust and Collective Bargaining Agreements. In view of the above principles, the Court will not disturb the trustees’ decision.

III. CONCLUSION

For the reasons stated above, the plaintiffs’ motion for summary judgment is granted and the defendant’s cross-motion for summary judgment is denied.

IT IS SO ORDERED.


author: HAWKINS, District Judge.

text:
    Tamara Jo THIGPEN, Plaintiff, v. UNITED STATES of America, Defendant. Joann Evelyn KRAMBER, as Guardian ad Litem for Lisa Marie Kramber, a minor under the age of eighteen (18) years, Plaintiff, v. UNITED STATES of America, Defendant.
    Civ. A. Nos. 2:85-0459-1, 2:85-0460-1.
    United States District Court, D. South Carolina, Charleston Division.
    Sept. 12, 1985.

      Joel D. Bailey and H. Fred Kuhn, Beaufort, S.C., for plaintiffs.
    Glen E. Craig, Asst. U.S. Atty., Columbia, S.C., and Heidi Solomon, Asst. U.S. Atty., Charleston, S.C., for defendant.
   AMENDED ORDER

HAWKINS, District Judge.

These sexual abuse cases arise under the Federal Tort Claims Act. 28 U.S.C. § 2671. The defendant moves to dismiss both cases for lack of jurisdiction over the subject matter. Rule 12(b)(1), Fed.R.Civ.P. It argues, inter alia, that the plaintiffs’ claims are barred by the intentional tort exception to the Act, 28 U.S.C. § 2680(h), and that the government’s employee, Edmundo Rodriguez, was acting outside of the scope of his employment when he sexually assaulted the girls. This court agrees with the defendant. For reasons to be stated, it is the opinion of this court that the defendant’s motion to dismiss should be granted.

A. FACTS AND PROCEDURAL HISTORY

Lisa Marie Kramber (hereinafter “Kramber”) is the daughter of Gary Kramber, United States Marine Corps (Ret.). On March 15, 1981, she was admitted as a twelve-year-old patient to the United States Naval Hospital in Beaufort, South Carolina, suffering from a ruptured appendix. She was entitled to receive medical care from the defendant because she is her father’s dependent.

Tamara Jo Thigpen (hereinafter “Thigpen”) was fourteen years old in early 1981. On March 17 of that year she, like Kramber, was admitted to the Naval Hospital in Beaufort for treatment of a ruptured appendix. Thigpen was entitled to receive medical care from the United States because she is a dependent of her father, Pascal Gene Thigpen, United States Marine Corps (Ret.).

Following the removal of her appendix, Kramber was taken to the hospital’s Intensive Care Unit. There she was treated by Corpsman Edmundo Rodriguez, who checked her vital signs and monitored her recovery from the anesthesia.

From the Intensive Care Unit, Kramber was transferred to a room on the fourth floor of the hospital. On the afternoon of March 17, 1981, with her mother present, Rodriguez came into her room to check on her progress. During the early morning hours of March 18, 1981, Rodriguez .returned to Kramber’s room and stated that he needed to check her vital signs. She noticed that he did not have a blood pressure cuff. Rodriguez extended Kramber’s arms and twice attempted to force her to touch his groin area. He told her to open and close her hand because this was the “Spanish way” of determining blood pressure. She refused and grabbed the handrail on her bed.

After this unsuccessful attempt, Rodriguez asked to see Kramber’s incision. He lifted up her gown and then pulled down her underpants. Rodriguez fondled her genitals; Kramber became frightened, pulled up her underpants, and told him to stop. Rodriguez left the room.

Thigpen’s case is similar. Following her appendix surgery on March 18, she was taken to the hospital’s Intensive Care Unit. While recovering from the anesthesia, she was attended by Rodriguez. From the Intensive Care Unit, Thigpen was transferred to Kramber’s room. During the early morning hours of March 19, Rodriguez came into the girls’ room. First, he approached Thigpen, who was asleep. She awoke and found Rodriguez examining the intravenous needle in her arm. He asked her if it was bothering her. She said that it was and asked that a cool rag be placed on her forehead.

Rodriguez went around to the other side of the bed and picked up her other arm. He forced her hand to his genital area and instructed her to open and close her hand so that he could take her blood pressure the “Spanish way.” She opened her hand, realized what he was doing, pulled her hand away, and reached for the cool cloth. Rodriguez placed it on her head and told her to “cool down.”

Leaving Thigpen, he went to Kramber’s bed. Kramber, who had seen him enter the room and accost her roommate, and who overheard part of Thigpen’s and Rodriguez’s conversation, realized that he would probably repeat his action of the previous night. True to form, he tried to force her hand to his groin, all the while telling her to open and close her hand. She refused and grabbed the bed handrail. Another corpsman looked into the room and interrupted Rodriguez’s attack. The unknown corpsman closed the door. Rodriguez was about to leave when the door opened and a third corpsman came in with a thermometer box and blood pressure cuff. As he entered, Rodriguez left the room and said he would be back in twenty minutes. He did not, however, return.

The following morning the girls discussed the incident between themselves. Mrs. Kramber visited her daughter. When she took her into the bathroom to help her change clothes, Kramber started crying and told her mother about the corpsman’s attack. Mrs. Kramber became very upset, confronted her daughter’s treating physician, Dr. Pearce, and told him she wanted her daughter out of the hospital. Pearce’s initial response was that Kramber probably suffered a reaction to her medication. Mrs. Kramber pressed him with the matter. After conferring with another doctor, Pearce removed Kramber’s stitches and discharged her from the hospital.

At home, Kramber developed a high fever. After receiving assurances that Rodriguez had been restricted to quarters, Mrs. Kramber readmitted her daughter to the hospital where she again shared a room with Thigpen.

Upon her daughter’s discharge and recovery from surgery, Mrs. Kramber contacted Beaufort County law enforcement authorities. Rodriguez was brought to trial on October 21, 1981. He was convicted in the Beaufort County Court of General Sessions of two counts of committing a lewd act upon a 12-year-old child and one count of contributing to the delinquency of a 14-year-old child. State v. Rodriguez, 279 S.C. 106, 302 S.E.2d 666 (1983). Rodriguez was sentenced to nine years on the two counts and three years on the other count. In addition, it was revealed at the trial that Rodriguez, prior to enlisting in the Navy, pled guilty in 1980 in a State of Texas court to indecency with a child. He committed this crime on October 16, 1979, when he touched the genitals and breasts of a 10-year-old child and forced her to touch his genitals. He was sentenced to an indefinite period of probation, thirty days of incarceration, and ordered to submit to psychiatric counselling. The plaintiffs contend that, despite this sentence, an agreement was reached among Rodriguez, his attorney, his probation officer, Navy enlistment personnel, and the sentencing judge which allowed Rodriguez to enlist in the Navy instead of serving his sentence.

On February 15, 1985, Kramber and Thigpen each filed suits in this court. They assert five theories of recovery against the defendant:

(1) Negligence of the plaintiffs’ treating physicians in failing to obtain their informed consent;
(2) Breach of recognized standards of medical care by hospital staff in allowing a child molester to participate in the treatment and care of a child;
(3) Breach of supervisory Naval personnel of their duty to recruit, assign and retain, qualified, suitable medical personnel;
(4) Negligent supervision and control by the hospital staff; and,
(5) Negligence of the hospital staff for failing to provide adequate security on the defendant’s premises.

On May 20, 1985, the defendant filed its motion to dismiss in the Thigpen case. The Government filed an identical motion to dismiss in Kramber’s case on June 2, 1985. On June 17, 1985, plaintiff Thigpen submitted a memorandum opposing the motion to dismiss. On June 19, 1985, the court heard oral argument on the motions. At this hearing, the parties stipulated that all motions and arguments made in the Thigpen case would be fully applicable to the Kramber case because the facts in each are nearly identical. At the hearing, the court took the defendant’s motions under advisement and permitted the parties to file supplemental memoranda in support of their positions. Since the date of the hearing, memoranda, letters and affidavits were received by the court from plaintiffs and defendant.

B. THE DEFENDANT’S MOTION TO DISMISS

The defendant asserts three grounds in support of its motion to dismiss. First, it argues that this court lacks jurisdiction because the plaintiffs’ administrative claims failed to apprise it of its potential liability for medical malpractice. Adams v. United States, 615 F.2d 284, 289 (5th Cir.1980).

Second, it contends that plaintiffs’ claims are barred by the assault/battery exception of 28 U.S.C. § 2680(h) because Rodriguez’s conduct inflicted unauthorized, unlawful violence and created reasonable fear of bodily harm. Mary Doe v. United States, 769 F.2d 174 (4th Cir.1985); Hughes v. United States, 662 F.2d 219 (4th Cir.1981); Turner v. United States, 595 F.Supp. 708 (W.D.La.1984); Taylor v. United States, 513 F.Supp. 647 (D.S.C.1981). Contra, Andrews v. United States, 732 F.2d 366 (4th Cir.1984).

Finally, the defendant asserts that the plaintiffs’ claims are barred by the “scope of employment” requirement under 28 U.S.C. § 1346(b) because Rodriguez’s actions had nothing to do with his duties as a hospital corpsman. Without passing on the defendant’s argument regarding plaintiffs’ administrative claims, the court finds the other two arguments compelling. Therefore, it grants the motion to dismiss on the following two grounds.

1. The Assault and Battery Exception

Title 28, United States Code Section 2680(h), provides in pertinent part:

The provisions of this chapter and § 1346(b) of this title shall not apply to
(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, [and] abuse of process ... 28 U.S.C. § 2680(h) (emphasis added).

In South Carolina, the tort of assault arises if “reasonable fear of bodily harm has been caused by the conduct of the defendant.” Herring v. Lawrence Warehouse Co., 222 S.C. 226, 72 S.E.2d 453, 458 (1952). Battery is defined as “the actual infliction of any unlawful, unauthorized violence on the person of another, irrespective of its degree____” Id. The evidence is overwhelming that Rodriguez’s conduct was an assault and a battery on both children.

Kramber’s testimony at Rodriguez’s trial supports the conclusion that her assailant’s conduct created a “reasonable fear of bodily harm” and that it was unlawful, unauthorized violence on her person. She described the first incident, which occurred in the early morning hours on March 18, 1981, in this way:

A. ... he asked to see my incision and so I pulled up my nightgown just a little bit above my incision and then — and then he was looking at it and then he pulled down my underpants and he had his fingers on my private parts and he was moving them around and he asked me the question if the nurse gave me — but I don’t remember the word he used, it was some medical term and I said yes, even though I didn’t know because I was scared he was going to do something and then I pulled up my underpants and I told him, I said, don’t do that. [Tr. 37-38] (emphasis added).
jjc >(: sfc >k
(Rodriguez) held my arm ... between his legs and his private parts (witness crying) ... and he was pushing my arm up and told me to open and close my hand and I wouldn’t do it so I grabbed the side of the bed on the bar and he was trying to pull my hand off and I wouldn’t let him ... [Tr. 35] (emphasis added).
Q. And you say that he made you put his — your hand down into his private parts?
A. Yes.
Q. And did he make you touch him? A. He was trying to but I wouldn’t let him, I was holding onto the bar of the bed. [Tr. 37] (emphasis added).

She testified about the second incident, which occurred early on March 19, 1981:

A. ... he came over to my right side again and he took my hand and he had his right hand above my elbow, the midsection of my arm, and he was pushing my arm up and with his other hand he was holding down on my wrist and making my hand go up by his private parts between his legs and he was telling me to open and close my hand and I told him I couldn’t and he said, yes, you can. And I grabbed the bar of the bed again ...
Q. Okay. Now, when he was trying to get your hands near his private parts, did you resist him? Did you try to keep him from doing that?
A. Yes.
Q. And did you ever — did he ever make you touch his private parts?
A. He tried to but I wouldn’t let him, I was holding onto the bar and I wouldn’t let go.
Q. Tell the jury whether or not — did these actions of Rodriguez upset you? A. Yes, they did ...
Q. Were you upset from the beginning until you left the hospital?
A. Yes, when I realized what he was doing. [Tr. 41-43] (emphasis added).

Furthermore, Kramber’s affidavits are consistent with her trial testimony as set out above. In her affidavit dated July 12, 1985, she describes her fear:

In addition to checking my vital signs and looking at my incision, Corpsman Rodriguez touched my genital area and I became apprehensive. [Aff. p. 2, ¶ 6] (emphasis added).
When he began to examine me during the second visit, however, I refused to cooperate with him because I felt he was not acting properly, and I was afraid to let him examine me as he had the night before. [Id., p. 4 1110] (emphasis added).

Mrs. Kramber’s affidavit also describes her daughter’s fear:

[M]y daughter asked me not to say anything because she was afraid. [Aff. p. 3, 1111] (emphasis added).

Thigpen’s testimony also leaves no doubt that Rodriguez’s conduct was an assault and a battery. She testified:

Okay, I was sleeping when Mr. Rodriguez came in, I didn’t know he was in there and then he took my right arm which had an IV in it and I woke up and he was just looking at my IV and everything and I asked him what he was doing and he said oh, I’m just checking it, and I didn’t pay any attention to it. And then he asked me if it was bothering me and it was bothering me then so I asked him to give me my rag and he said okay, and so he went around to the bed and he picked my arm up off the bed and was feeling my arm, and then he started moving it toward him, I mean, like forcing me until I forced his private parts and he told me to open and close my hand. I opened it and I just kinda realized what he was doing and then I pulled away and then I was getting real hot because I had a temperature that day and I went to grab for my rag and he just put it on my head and told me to cool down. [Tr. 56, 57].

Rodriguez did not do anything else to Thigpen because “I was — I mean, I was real scared and he just told me to cool down.” [Tr. 57] (emphasis added). She could not tell what Rodriguez did with respect to her roommate “because I was kinda scared." [Tr. 58] (emphasis added). Thigpen “didn’t really want to tell anybody about it, you know, I was scared____” [Tr. 59] (emphasis added).

By plaintiffs’ own admissions, Rodriguez’s conduct scared them, thereby creating a reasonable fear of bodily harm. Moreover, his actions were clearly unlawful, unauthorized violence on each girl’s body.

The plaintiffs attempt to avoid this bar by arguing that their theories of recovery are expressly based upon the alleged negligence of Naval personnel who were acting within the scope of their employment. The gravamen of their complaints is that the Navy acted negligently by permitting Rodriguez, a known child molester, to enlist and then placing him in a position, without adequate supervision, where he would have contact with children.

In the recent case of United States v. Shearer, — U.S. -, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), the Supreme Court entertained an argument similar to plaintiffs’. A Private Shearer was off duty at Fort Bliss and away from the base when he was kidnaped and murdered by another serviceman, Private Andrew Heard. A New Mexico court convicted Private Heard of Shearer’s murder and sentenced him to a term of 15 to 55 years of imprisonment.

Shearer’s mother brought suit under the Federal Tort Claims Act, claiming the Army’s negligence caused her son’s death. She alleged that Heard, while assigned to an Army base in Germany in 1977, was convicted by a German court of manslaughter and sentenced to a 4-year prison term. Upon his discharge from that confinement in Germany, the Army transferred Private Heard to Fort Bliss. Shearer’s mother further alleged that, although the Army knew he was dangerous, it negligently and carelessly failed to exert a reasonably sufficient control over him and failed to warn other persons that he was at large. The District Court granted summary judgment in favor of the United States, but the Court of Appeals reversed.

The Supreme Court reversed the Circuit Court on the basis of the Feres doctrine. In discussing the assault/battery exception, Chief Justice Burger, joined by Justices White, Rehnquist and O’Connor, said:

No semantical recasting of events can alter the fact that the battery was the immediate cause of Private Shearer’s death and, consequently, the basis of respondent’s claim.
Respondent cannot avoid the reach of § 2680(h) by framing her complaint in terms of negligent failure to prevent the assault and battery. Section 2680(h) does not merely bar claims for assault or battery; in sweeping language it excludes any claim arising out of assault or battery. We read this provision to cover claims like respondent’s that sound in negligence but stem from a battery committed by a Government employee. Thus “the express words of the statute” bar respondent’s claim against the Government. United States v. Spelar, 338 U.S. 217, 219 [70 S.Ct. 10, 11, 94 L.Ed. 3] (1949).
The legislative history of § 2680(h), although sparse, is entirely consistent with our interpretation. There is no indication that Congress distinguished between “negligent supervision” claims and respondeat superior claims, with only the latter excluded under the Act. Instead it appears that Congress believed that § 2680(h) would bar claims arising out of a certain type of factual situation — deliberate attacks by Government employees.

United States v. Shearer, — U.S. at -, 105 S.Ct. at 3042.

The fact situation presented in these cases is a deliberate sexual attack — an assault and a battery — which is excluded under the Act. Plaintiffs allege negligent supervision. Despite this “semantical recasting of events,” the assault and battery were the immediate causes of plaintiffs’ injuries. To attempt to convert the conduct here from an intentional tort to negligent medical supervision would be an act of legal sorcery.

Plaintiffs also attempt to avoid the bar erected by 28 U.S.C. § 2680(h) by arguing that there was no assault or battery because they consented to the corpsman’s actions believing them to be part of their normal medical treatment. See Andrews v. United States, 732 F.2d 366 (4th Cir.1984). The facts, however, as disclosed by the trial testimony and affidavits, do not support this conclusion. Neither girl consented to Rodriguez’s lewd acts. Both, exercising their good judgment, resisted his efforts as best they could. In addition, Andrews v. United States is inapposite here.

In Andrews there was a 5-month relationship between Warrant Officer Gee and Mrs. Andrews. Gee had a Bachelor of Medical Science Degree from the University of Nebraska. He was a Physicians Assistant “able to perform those medical duties usually performed by physicians, including the prescription of a drug such as Elavil____” 548 F.Supp. 603 at 606.

In confiding with a friend about her confused dependency on him, Mrs. Andrews referred to him as “Dr.” Gee. 732 F.2d at 369, n. 3. After numerous counselling sessions with her and after treating her with the anti-depressant drug Elavil, “he engaged in sexual intercourse with her in his office at the clinic' on her last visit there.” 548 F.Supp. at 608. Then she went to Florida. Shortly thereafter, she returned to see him — they went from the “main hospital” to a Charleston motel where they “had sexual intercourse.” 732 F.2d at 369, n. 4.

In short, in the guise of therapy, he induced her to believe that having sex with him was the best course of treatment for her depression. Therefore, the Fourth Circuit found that there was no assault or battery.

We have accepted the district court’s finding that Mrs. Andrews consented to engage in sex with Gee because she was induced to believe that it was the best course of treatment for her. Hence, the Andrews claim did not arise out of an assault or battery.

Andrews, 732 F.2d at 371.

Thus, Mrs. Andrews’ claim was not barred by the assault/battery exception because Gee obtained her consent over a 5 month relationship. In this case, both girls resisted the advances of a corpsman who entered their room for a few minutes, returned the next night, and then was gone forever.

Accordingly, this court is without jurisdiction to entertain plaintiffs’ claims.

2. Scope of Employment

Even if plaintiffs’ claims were not barred by the assault/battery exception, they would be barred by the “scope of employment” requirement under 28 U.S.C. § 1346(b). A prerequisite to maintaining a suit under the Federal Tort Claims Act is that the Government’s employee must be acting with the scope of his employment. Andrews v. United States, 732 F.2d 366 (4th Cir.1984). Under South Carolina law, an “act is within the scope of a servant’s employment where reasonably necessary to accomplish the purpose of his employment and is in the furtherance of the master’s business.” Lane v. Modern Music, 244 S.C. 299, 136 S.E.2d 713 (1964).

Rodriguez was a hospital corpsman. His duties did not include assaults and batteries on children. He was not furthering his master’s employment when he sexually assaulted Thigpen and Kramber. Instead, he was furthering his own self-interest. His conduct — forcing the girls to touch his groin area and fondling Kramber — was not part of their medical care.

Therefore, plaintiffs’ claims are barred because his conduct was not within the scope of his employment.

Thus, it is

ORDERED, that defendant’s motion to dismiss these actions be, and the same is hereby, granted.

AND IT IS SO ORDERED.

      . For the purposes of this motion, the "Court must accept as true all material facts alleged in the complaint.” Asociacian De Reclamantes v. The United Mexican States, 561 F.Supp. 1190, 1192, (D.D.C.1983).

      . Because Kramber is still a minor, her mother, JoAnn Evelyn Kramber brings this suit on her behalf.

      . This affidavit does not materially differ from the affidavit dated March 24, 1981.

      . Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).


author: LAFFITTE, District Judge.

text:
    Pascual Padin GERENA, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
    Civ. No. 84-2208 HL.
    United States District Court, D. Puerto Rico.
    Sept. 12, 1985.
    Rafael Carreras Valle, Río Piedras, P.R., for plaintiff.
    Fidel A. Sevillano, U.S. Atty., Hato Rey, P.R., for defendant.
   OPINION AND ORDER

LAFFITTE, District Judge.

This is an action brought under Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Secretary of Health and Human Services (the Secretary) denying plaintiff's application for disability insurance benefits.

Plaintiff is a 59 year old man with a marginal second grade education and previous work experience as a milkman, a job considered from medium to heavy and semi-skilled. Plaintiff claims he has been unable to work since April 15, 1982, because of chest pain, shortness of breath, anxiety, and high blood pressure. Plaintiff’s application was denied throughout the administrative proceedings. The Secretary’s final decision comes before us for a determination of whether it is supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

Plaintiff’s treating physician, Dr. Prieto, filed two reports of patient’s medical condition (Tr. 97-100, 101-107), dated December 23, 1982 and March 7,1983, respectively, as well as a Medical Assessment of Ability to do Work-Related Activities, the only one on record. Both reports are consistent in finding arterial hypertension, dyspnea (shortness of breath), and normal EKG. The first report also found mild cardiomegaly (enlargment of the heart), calling patient’s prognosis poor, while the second also found tachycardia, describing the condition as early manifestation of heart failure. Both reports assert the patient’s inability to engage in physical exertion because it triggers dyspnea and/or tachycardia. Blood pressure ranged from 140/100 to 120/90. Patient was taking Tenormin and Centrax for these conditions and anxiety.

A consultative examination by Dr. Medina-Ruiz on January 8, 1983, revealed a normal EKG. Blood pressure was again high, 140/90, but there were no murmurs, gallops, or rubs. P.M.I. was at 5th ICS at MCL. Dr. Medina Ruiz’ diagnosis was obesity, anxiety reaction, and high blood pressure (Tr. 108-109). However, the radiology examination report accompanying the consultative examination found a tortuous and sclerotic (hardened) aorta.

Plaintiff was admitted June 3, 1983, to De Diego Hospital, and discharged June 7 with an unstable angina pectoris and hypertension and complaints of chest pain. X-rays indicated the heart was not enlarged, but the aorta was hardened. The EKG revealed a sinus tachycardiac condition (more than 100 beats per minute), which was controlled by the time of discharge (Tr. 113-134).

Plaintiff’s treating physician also submitted a Medical Assessment of Ability to do Work-related Activities. He placed the following restrictions: lift no more than 10 pounds, standing less than four hours, no carrying of heavy objects, walking only a short distance, limited bending, no pushing or pulling, no exposure to dust and fumes. The plaintiff was found unlimited only in seeing, hearing, and speaking.

The Secretary’s regulations require that medical reports include medical assessments describing ability to do the work related activities referred to above, 20 C.F.R. 404.1513(b)(6) and (c)(1). Cardona v. Secretary Of Health And Human Services, 740 F.2d 952 (1st Cir., 1984). Though medical opinion is not conclusive on disability and that decision is for the Secretary to make, Sitar v. Schweiker, 671 F.2d 19 (1st Cir.1982), neither is the Secretary at liberty to simply ignore uncontroverted medical reports. Suarez v. Secretary Of Health And Human Services, 740 F.2d 1 (1st Cir.1984).

The Administrative Law Judge (AU) decided the case explicitly on the severity requirement, step 2 of the disability determination procedure, Section 404.-1520(c). This determination is made in terms of limiting ability to do basic work related functions, Section 404.1521. If there is uncontroverted medical evidence that claimant cannot engage in work related activities, there cannot be made a determination of non-severity. And if the plaintiff proves he is unable to engage in his past relevant work activities, the burden shifts to the defendant to show jobs exist in significant numbers in the national economy for which the plaintiff is capable. Torres v. Secretary Of Health And Human Services, 677 F.2d 167, 168 (1982). We do not go so far as making that determination, step 4, here.

In the face of uncontroverted medical opinion that plaintiff could not engage in many basic work related activities, the AU acknowledged the importance of considering limitations in work related activities, then stated the principle that functional limitations must be medically determinable. (Tr. 21.) This is surely correct, as a description of the type of evidence to be submitted with disability claims, Section 404.1512(b), and as a general principle. Section 404.1508,1529. Either way it cannot be said there is substantial evidence to support the ALJ’s finding.

Medical reports from all three sources found an organic dysfunction underlying the symptoms. Though not entirely congruent, the reports indicate there is something organically wrong with the plaintiff’s heart. Some complex of hardening and twisting of the arteries, enlargement of the heart, or angina is causing the plaintiff shortness of breath, pain, and tachycardia. Given this uncontroverted medical opinion, that symptoms and medically determinable cause exist, both severe, the proper question is how much does this condition affect plaintiff’s residual functional capacity, step 4 of the procedure.

In Keith v. Heckler, 732 F.2d 1089 (1st Cir.1984), the Court of Appeals explicitly adopted that ALJ’s method of disability determination. Notwithstanding her ruling that the severity requirement mandated that Keith be found not disabled, she went on to apply step 4 of the disability determination procedure, ability to do former job, as a means of determining ability to do basic work related activities. It was determined that Keith, who suffered from hypertension and arthritis but could occasionally lift 50 pounds, could do his former job as a soap machine operator.

The situation of this plaintiff vis-a-vis his former work is distinguishable. Delivering milk is physically rigorous, medium to heavy work in the regulations, involving lifting heavy objects, constant walking, carrying, bending, and stooping. This is much to ask from a 59 year old man with a heart condition, who becomes short of breath with physical exertion or lifting of more than ten pounds.

If ability to do previous work may be used in support of non-disability determinations which are also independently decided on non-severity grounds, the contra-positive is an even stronger case. If it is found that a claimant cannot do his previous work, specified basic work related activities, due to impairment, it must be found to constitute a severe impairment, in keeping with the definition of severe impairment in terms of ability to do work related activities, Section 404.1521.

It is not the function of judicial review to try the matter de novo. The above discussion of plaintiff’s ability to do his previous work applies only insofar as it relates to the ALJ’s finding that plaintiff’s impairment is not severe and thus not disabled, in accordance with the analysis in Keith, and is not controlling on the ALJ’s application of step 4 on remand.

WHEREFORE, this Court finds good cause to reverse the Secretary’s finding that claimant does not have a severe impairment and to REMAND this case to the Secretary for further proceedings consistent with this opinion.

IT IS SO ORDERED.


author: WILLIAM C. CONNER, District Judge:

text:
    Oscar TROUPE, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 83 Civ. 7476 (WCC).
    United States District Court, S.D. New York.
    Sept. 12, 1985.

      The Legal Aid Society, New York City, for plaintiff; Bernard C. Durham, Virginia C. Duncombe, Judith Post, of counsel.
    Rudolph W. Giuliani, U.S. Atty. for the S.D. of N.Y., New York City, for defendant; Jane E. Bloom, Asst. U.S. Atty., Annette H. Blum, Regional Atty., Timothy Jefferson, Asst. Regional Atty., Dept, of Health and Human Services, of counsel.
   OPINION AND ORDER

WILLIAM C. CONNER, District Judge:

Plaintiff Oscar Troupe (“Troupe” or “the Claimant”) brought this action under Sections 205(g) and 1631(c)(3) of the Social Security Act (“the Act”), as amended, 42 U.S.C. §§ 405(g), 1383(c)(3) (1982), seeking review of a final determination of the Secretary of Health and Human Services (“the Secretary”) that plaintiff is not disabled as defined by the Act, and therefore is not entitled to disability insurance or Supplemental Security Income (“SSI”) benefits.

The Secretary has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (“F.R. Civ.P.”). I have reviewed the exhibits and testimony received by the Secretary, and I have concluded, for the reasons stated below, that the Secretary’s determination is not supported by substantial evidence. Accordingly, the Secretary’s motion is denied, the Secretary’s decision denying plaintiff disability insurance and SSI benefits is reversed, and the case is remanded to the Secretary for a computation of benefits. Background

Plaintiff is a 39-year-old man with an eighth-grade education (Tr. at 43). He has worked as a machine operator, a construction worker, and a moving man (Tr. at 43-46). Plaintiff stopped working in 1973 when he injured his back while lifting a piano (Tr. at 63).

Following the injury to his back, plaintiff escalated his use of drugs, which he had begun three years earlier (Tr. at 125), in order to relieve his leg and back pains (Tr. at 47). In October 1975, plaintiff entered Beth Israel Hospital for detoxification (Tr. at 126), and shortly thereafter he enrolled in a methadone treatment program at the Beth Israel Medical Center (Tr. at 148). When plaintiffs drug use ceased during his hospitalization, his leg and back pains increased (Tr. at 64), and he began receiving treatment for his injury. Plaintiffs condition has been variously described as “herniated disk” (Tr. at 159-60, 173-74), “L5, SI radiculopathy” (Tr. at 176-77, 179), and “herniated nucleus pulposus” (Tr. at 186).

On January 4, 1978, plaintiff filed an application for disability insurance and SSI benefits (Tr. at 84-87). Plaintiffs application was denied initially (Tr. at 88-89) and on reconsideration (Tr. at 93-94).

Plaintiff requested a de novo hearing of his application, and such a hearing was held before Administrative Law Judge (“ALJ”) Howard Lawrence who concluded in a decision issued on November 7, 1979, that plaintiff was not disabled within the meaning of the Act (Tr. at 24-30). The Appeals Council declined to review that decision (Tr. at 22).

On April 14, 1980, plaintiff commenced an action in this Court for review of the administrative proceedings. The Social Security Administration was unable to provide a transcript of the proceedings below, and, accordingly, by Order dated March 13, 1981, I remanded the case to the Secretary for a new hearing (Tr. at 21).

AU Lawrence conducted another hearing, and this time concluded that plaintiff was disabled from October 1, 1975 through July 30, 1980, and was entitled to disability benefits for the period commencing October 1, 1975 and ending September 30, 1980, and to SSI benefits for the period commencing January 4, 1978 and ending September 30, 1980 (Tr. at 14-15). However, the Appeals Council, in a decision issued January 29, 1982, rejected the AU’s conclusion that the plaintiff had been disabled for a limited period of time, and held that the plaintiff had not been disabled at any time through the date of its decision (Tr. at 168-70).

Plaintiff again sought review in this Court. Both parties moved for judgment on the pleadings, and, in an Opinion and Order issued July 9, 1982, I again remanded the action to the Secretary for further proceedings, including the consideration of additional medical evidence.

On remand, the Appeals Council affirmed its earlier decision (Tr. at 165-66A), which accordingly became the final decision of the Secretary. Plaintiff has once again sought review of the Secretary’s decision. As noted above, the Secretary has now moved for judgment on the pleadings.

Applicable Legal Standards and Scope of Review

The legal principles that govern the Court’s decision on the instant motion are well settled. A claimant is entitled to disability benefits under the Act if he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A) (1982). The mere presence of an impairment is not disabling within the meaning of the Act. Rather, the Secretary will find a claimant disabled only if the claimant’s

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 national economy, regardless of whether such work 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) (Supp. I 1983).

The applicable regulations promulgated by the Secretary set forth a five-step sequence to be utilized in evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920 (1985). In Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam), the Court of Appeals for the Second Circuit summarized this procedure as follows:

First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform,

The claimant bears the burden of proof as to the first four steps, while the Secretary bears the burden of proof as to the final one. Id. Once the claimant has established a prima facie case by showing that his impairment prevents his return to his prior employment, the burden shifts to the Secretary, who must produce evidence to show the existence of alternative substantial gainful work in the economy which the claimant could perform, considering not only his physical capacity, but also his age, education, experience, and training. Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980).

The regulations divide the Secretary’s inquiry on the final step into two stages. First, the Secretary must assess the claimant’s present job qualifications, considering such factors as physical ability, age, education, and work experience. 42 U.S.C. § 423(d)(2)(A) (Supp. I 1983); 20 C.F.R. § 404.1520(f) (1985). Second, the Secretary must consider whether there are jobs in the economy that a person with the claimant’s qualifications could perform. 20 C.F.R. §§ 404.1520(f), 404.1566-404.1569 (1985).

The regulations contain a matrix of the four factors identified by Congress — physical ability, age, education, and work experience — which enable the Secretary to determine generally whether appropriate alternative jobs exist in the economy. Thus, there is no need for testimony from vocational experts in each case, and the Secretary need not specify the alternative jobs available. “Where a claimant’s qualifications correspond to the job requirements identified by a rule, the guidelines direct a conclusion as to whether work, exists that the claimant could perform. If such work exists, the claimant is not considered disabled.” Heckler v. Campbell, 461 U.S. 458, 461-62, 103 S.Ct. 1952, 1955, 76 L.Ed.2d 66 (1983) (footnote omitted).

In reaching a conclusion on these issues, the trier of fact should consider both objective and subjective factors. These include (1) objective medical facts, (2) diagnoses or medical opinions based on such facts, (3) subjective testimony by the claimant as to pain or disability, and (4) background data such as the claimant’s age, education, and previous work experience. Parker v. Harris, 626 F.2d at 231; Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978).

In reviewing the Secretary’s determination, it is not the function of this Court to determine de novo whether the claimant is disabled. The Secretary’s decision may only be set aside if it is based upon legal error or not supported by substantial evidence. 42 U.S.C. §§ 405(g), 1883(c)(3) (1982); Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d Cir.1981). Substantial evidence is “ ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)).

The substantial evidence test applies not only to findings of basic evidentiary facts, but also to inferences and conclusions drawn from such facts. Beane v. Richardson, 457 F.2d 758, 759 (9th Cir.), cert. denied, 409 U.S. 859, 93 S.Ct. 144, 34 L.Ed.2d 105 (1972); Rodriguez v. Califano, 431 F.Supp. 421, 423 (S.D.N.Y.1977). It is the function of the Secretary, and not a reviewing court, to pass on the credibility of witnesses and to resolve material conflicts in the testimony. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

Discussion

Plaintiff advances two principal arguments in opposition to the Secretary’s motion. First, plaintiff argues that he has an impairment listed in Appendix 1 of the regulations and that the Secretary was required to find him disabled without considering vocational factors. Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion for Judgment on the Pleadings at 33-35 [hereinafter cited as “Plaintiff’s Memorandum”]. Second, plaintiff argues that the Secretary erred in concluding that plaintiff retained the residual functional capacity to engage in sedentary work and in applying the so-called “grid” rules in Appendix 2 of the regulations. Id. at 35-45.

In support of his first argument, the plaintiff points to extensive clinical evidence in the record of the type contemplated by the regulations for proof of spinal disorders such as a herniated nucleus pulposus. Id. at 9-20. While I find much merit in this argument, I decline to reach it because, as discussed below, the evidence is overwhelming that the plaintiff is incapable of sedentary work.

In support of his second argument, plaintiff maintains that the record is devoid of evidence sufficient to conclude that he is capable of sedentary work. I agree. Indeed, the unrefuted medical evidence was overwhelmingly to the contrary.

The physical exertional requirements of jobs involving sedentary work are defined by the Secretary in accordance with the criteria set forth in the Dictionary of Occupational Titles published by the Department of Labor. 20 C.F.R. § 404.1567 (1985). “The Dictionary of Occupational Titles, which is a generally accepted guide in gauging employment capability in [disability] cases, states that sedentary work implies a capacity to sit for at least 6 hours in an eight hour work day.” Mazzella v. Secretary of U.S. Dep’t of Health & Human Servs., 588 F.Supp. 603, 607 (S.D.N.Y 1984) (emphasis in original); Keppler v. Heckler, 587 F.Supp. 1319, 1322 (S.D.N.Y.1984) (emphasis in original); see also Ferraris v. Heckler, 728 F.2d 582, 587 & n. 3 (2d Cir.1984).

The relevant medical evidence in the instant case is contained in the reports of several doctors, including plaintiff’s treating physicians and two consulting physicians, Drs. F. Hochberg and E. Balinberg, who examined plaintiff on behalf of the Social Security Administration. Plaintiff’s treating physicians noted in numerous medical reports between 1976 and 1979 that plaintiffs symptoms were aggravated by sitting {e.g., Tr. at 156, 179, 180, 186, 198, 204-05). Only Drs. Hochberg and Balinberg made explicit estimates of how long plaintiff could sit. Dr. Hockberg estimated plaintiff could sit for periods of two to three hours in an eight-hour workday (Tr. at 131). Dr. Balinberg estimated that plaintiff could sit for periods from two to four to six hours (Tr. at 153).

Unless controverted by substantial evidence to the contrary, the expert opinions of these consulting physicians, like those of plaintiffs treating physicians, are binding on the Secretary. Flores v. Department of Health, Educ. & Welfare, 465 F.Supp. 317, 321 (S.D.N.Y.1978). It is readily apparent from the consulting physicians’ reports that plaintiff normally will be able to sit for far less than six hours in an eight-hour workday. Rarely, if ever, will he be able to sit for the six or more hours required by the regulations for sedentary work.

Nonetheless, the Appeals Council concluded that these reports indicated that the plaintiff “had the residual functional capacity to do substantial ... sitting in an 8 hour work day,” and constituted “substantial evidence to support a finding adverse to the [plaintiff]” (Tr. at 169). This conclusion is patently contrary to the uncontroverted opinions of the consulting doctors.

The Secretary’s failure to accept the uncontradicted conclusions of the treating and consulting physicians and to heed the physical exertional requirements for sedentary work contained in the regulations and reinforced by case law deprives her decision of the requisite support by substantial evidence. Her decision must therefore be reversed.

It is necessary to address briefly the period for which the plaintiff is entitled to benefits. In his recommended decision, the AU awarded the plaintiff a “closed period of disability” beginning October 1, 1975 and ending July 30, 1980. The AU based his finding that the plaintiff was not entitled to benefits before October 1975 on an examination of the plaintiff’s medical records (Tr. at 13), several of which indicated a history of pain dating back only to the end of 1975 (e.g., Tr. at 159, 161). The AU based his finding that the plaintiff was not entitled to benefits after July 30, 1980 on the same report of Dr. Balinberg relied upon by the Appeals Council (Tr. at 12). From that report, the AU concluded that the plaintiff was able to perform sedentary work beginning July 30, 1980 and that his disability therefore ceased on that date (Tr. at 13). The Appeals Council implicitly adopted these findings when it concluded that the plaintiff was not disabled “at any time through the date of [its] decision” (Tr. at 170).

A review of the record indicates that the AU’s finding concerning the onset of the plaintiffs disability is supported by substantial evidence and should be upheld. While there is some evidence that plaintiff was experiencing pain prior to 1975 (e.g., Tr. at 47-48), this does not necessarily deprive the AU’s finding of the requisite support by substantial evidence since the Secretary, and not this Court, is to pass on credibility and to resolve conflicts in testimony. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Thus, the Secretary’s determination may be conclusive even in instances where the Court’s independent analysis of the evidence may differ from that of the Secretary. Reading v. Mathews, 542 F.2d 993, 997 (7th Cir.1976).

The AU’s finding is amply supported by the records he examined and by many of the supplemental medical records submitted by the plaintiff to the Appeals Council following remand (e.g., Tr. at 176, 179, 180, 185-86,188,198, 218). In addition, the plaintiff himself testified at the supplemental hearing before AU Lawrence that he had tried to return to work several months after his injury but was not rehired (Tr. at 63-64). Thus, the plaintiff is entitled to benefits only after October 1, 1975.

I cannot, however, uphold the AU’s finding that the plaintiff’s disability ceased on July 30, 1980. The AU’s conclusion from Dr. Balinberg’s report that the plaintiff was capable of performing sedentary work as of that date must be rejected for the reasons discussed above in reversing the decision of the Appeals Council, see supra pp. 253-54. Therefore the plaintiff is entitled to an open period of disability commencing October 1, 1975.

Conclusion

For the foregoing reasons, I conclude that the Secretary’s determination is not supported by substantial evidence and cannot stand. Accordingly, defendant’s motion for judgment on the pleadings is denied. Judgment is entered in favor of plaintiff awarding him disability insurance and SSI benefits beginning October 1,1975. The decision of the Secretary is reversed and this case is remanded to her solely for the computation of benefits.

SO ORDERED.

      . All citations to the transcript refer to the pages as numbered for the complete record on appeal.

      . Although the ALJ’s recommended decision specified that plaintiff was eligible for SSI benefits "commencing with the filing of his application therefor, on June 4, 1978” (Tr. at 15), it is apparent that he intended January 4, 1978, the date on which plaintiff filed his application {see, e.g., Tr. at 84 (plaintiff's application); id. at 255 (ALJ finding no. 1)).

      . Plaintiff was examined by three consulting orthopedists at the request of the Bureau of Disability Determinations ("the BDD”).
      Dr. Ernest Abeles found that plaintiffs history was "consistent with a herniated disc syndrome” and stated that plaintiff "should not do any heavy work involving any heavy lifting” (Tr. at 129). Dr. Abeles made no finding with respect to plaintiffs ability to sit, stand, or walk for extended periods of time.
      Dr. Fred Hochberg opined that plaintiff had "chronic left sciatic syndrome” and estimated that plaintiff "could stand for periods of up to one hour; sit for periods of 2-3 hours; [and] walk distances of 8-10 blocks” (Tr. at 131). He placed no restrictions on plaintiffs grasping or manipulation. Plaintiffs bending was limited to two to three times per hour, and his lifting was limited to weights under 10 pounds (Id.). Dr. Edmond Balinberg concluded that plaintiff was suffering from "low back syndrome” and "left sciatica syndrome" (Tr. at 151). He estimated that, in an eight-hour workday, plaintiffs capacity to sit was from two to four to six hours, to stand was from two to four hours, and to walk was from two to four hours. See infra note 4.

      . Dr. Balinberg completed a BDD supplied "Residual Functional Capacity Evaluation" form (Tr. at 153). The instructions for completing the form directed Dr. Balinberg to indicate the claimant’s capacity for various activities by circling the appropriate numeral on a scale running from zero to eight hours in increments of two hours. With regard to plaintiff's capacity to sit in an eight-hour workday, Dr. Balinberg circled the numerals “two,” “four,” and “six,” and drew arrows from "two” to "four” and from “four” to “six.” Similarly, with regard to plaintiffs capacity to stand and walk in an eight-hour workday, Dr. Balinberg circled the numerals "two” and "four,” and drew arrows from "two" to "four.” In his recommended decision, the AU found that Dr. Balinberg’s notations indicated that, in an eight-hour workday, he estimated plaintiff could "sit for periods varying from two to four to six hours,” "stand from two to four hours,” and "walk two to four hours” (Tr. at 12).

      . The same result would follow under the plaintiff's theory that he has an impairment listed in Appendix 1 of the regulations, see supra p. 253. Proof of a § 1.05C herniated disc impairment requires the existence of pain “persisting for at least 3 months despite prescribed therapy and expected to last 12 months.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.05C (1985). Since there is substantial evidence to support the AU’s finding that plaintiff first experienced pain in October 1975, the Court also would be required to uphold a finding that the plaintiff did not have a listed impairment before then.