author: BUA, District Judge.

text:
    SO-COMM, INC., an Ohio corporation, Plaintiff, v. David L. REYNOLDS and Paul E. Hanson, Defendants.
    No. 84 C 9571.
    United States District Court, N.D. Illinois, E.D.
    April 29, 1985.

      John C. Tucker, Eugene R. Wedoff, Helene M. Kardell, Jenner & Block, Chicago, Ill., for plaintiff.
    John J. Verscaj, Bell, Boyd & Lloyd, Chicago, Ill., for defendants.
   MEMORANDUM ORDER

BUA, District Judge.

Before the Court is defendants’ motion to dismiss for improper venue or, in the alternative, to transfer the case to the United States District Court for the Southern District of Ohio. For reasons stated herein, defendants’ motion to dismiss is denied and defendants’ motion to transfer is granted.

I. FACTS

Plaintiff So-Comm, Inc. brings this action under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) predicated on fraud in the sale and subsequent financing of cable television systems in Clermont County, Ohio. So-Comm is an Ohio corporation with its principal place of business in Ohio. The defendants David L. Reynolds and Paul E. Hanson are both residents of Ohio, work in Ohio, and have no business or property in Illinois.

So-Comm’s business is the construction, marketing and operation of cable television systems. Reynolds is one of the three directors of So-Comm. Hanson is the controller of Clermont Satellite Services, Inc. (“CSS”), an Ohio corporation that contracted with So-Comm in 1983 to construct cable systems and to perform certain management services. Reynolds is the controlling shareholder, director and officer of CSS.

The following facts are assumed true for purposes of this motion. In 1983, Reynolds obtained cable television franchises for a number of municipalities and townships in Clermont County, Ohio. After acquiring these franchises, Reynolds proved unable to develop them because he lacked sufficient capital. He therefore decided to sell the franchises. A broker of investment opportunities in the cable communications industry residing in Illinois put Reynolds in contact with Terrell Isselhard of Chicago. On several occasions, Reynolds visited Chicago to discuss the cable system franchises with Isselhard and Isselhard’s law partner, Clement J. Carroll. Isselhard and Carroll are also directors of So-Comm.

At these meetings, Reynolds made various representations to Isselhard and Carroll about the franchise and number of Ohio “house counts” available. The organizations responsible for undertaking the “house counts” were RCH Cable Marketing, and CSS, both Ohio Corporations. Reliance on the “house count” information was important in securing a loan agreement with the Huntington National Bank of Northeast Ohio and in forming two related Illinois partnerships, the Clermont Cablevision Investment Limited Partnership and the Clermont Cablevision Operating Partnership. The partnerships were to acquire and invest in the Ohio cable system franchises and So-Comm was to benefit from the loan agreement.

In mid July, Isselhard undertook an investigation of Reynolds’ and Hanson’s representation of the franchise area “house counts,” which were allegedly overestimated. The results of that investigation, among other things, eventually led to this lawsuit. Another suit is pending between So-Comm and Reynolds and Hanson in an Ohio state court. That case is No. 84-CV-0764 in the Clermont County Court of Common Pleas involving allegations of common law fraud.

Defendants move this Court to dismiss this action for improper venue or, in the alternative, to transfer this case to the United States District Court for the Southern District of Ohio pursuant to 28 U.S.C. § 1404(a).

II. DISCUSSION

A. Venue

Under the “weight of contacts” test, applied to determine proper venue under both 18 U.S.C. § 1965(a) and 28 U.S.C. § 1391(b), the Court finds that the Northern District of Illinois has sufficient contacts with the underlying cause of action and consequently venue in this district is proper. See Follett College Stores Corp. v. Fernandez, 587 F.Supp. 1051 (N.D.Ill.1984).

Section 1391(b), 28 U.S.C., provides, in part, that an action such as the present one (where jurisdiction is not based solely upon diversity of citizenship) may be brought “in the judicial district in which the claim arose.” Id. Venue for RICO claims may be grounded upon section 1391(b). Farmers Bank of the State of Delaware v. Bell Mortgage Corp., 452 F.Supp. 1278, 1280-81 (D.C.Del.1978). Venue for RICO claims may also be grounded upon 18 U.S.C. § 1965. Venue under 18 U.S.C. § 1965 states:

any civil action or proceeding under this chapter against any person may be instituted in the district court of the United States for any district in which such person resides, is found, has an agent, or transacts his affairs.

Venue for So-Comm’s RICO act claim is proper in this district under both 28 U.S.C. § 1391(b) and 18 U.S.C. § 1965.

According to the complaint and affidavits submitted by the parties, Reynolds sold his cable franchises to Illinois investors. Two Illinois agents, both residents of Illinois, conducted the franchise operations for Reynolds. Once contact was established by his agents, Reynolds visited Chicago on several occasions to discuss the progress of the franchises with Isselhard and Carroll. Also, two Illinois partnerships, the Clermont Cablevision Investment Limited Partnership and the Clermont Cablevision Operating Partnership, were established in Illinois to acquire and operate the cable franchises. Furthermore, negotiations concerning the sale of the cable franchises took place in Illinois.

The negotiations contained various representations that Reynolds made to Isselhard and Carroll. Some of these representations were crucial to the forming of the Illinois partnerships and to Isselhards’ decision to negotiate a loan agreement for So-Comm with the Huntington National Bank of Northeast Ohio. Therefore, since Reynolds made several trips to Illinois which, in part, gave rise to this suit, this Court finds that So-Comm’s RICO claim “arose” in Illinois for purposes, of 28 U.S.C. § 1391(b). Additionally, because defendants had “agents” in Illinois and “transacted affairs” in Illinois, this Court finds that venue is also proper under 18 U.S.C. § 1965(a).

The Court distinguishes the facts of Follett College Stores Corp. v. Fernandez, 587 F.Supp. 1051 (N.D.Ill.1984), from the facts of this case. In Follett, this Court found that “[although the various defendants may have made numerous trips into this district, Follett does not allege or support the proposition that these trips relate directly to the subject matter of this suit.” Id. at 1053. Consequently, in Follett, this Court found that “... the chosen forum lack[ed] significant contacts with the underlying cause of action.” Id.

In this case, however, So-Comm alleges specifically that Reynolds’ trips to Illinois related directly to this RICO action. Hence, this Court finds that the chosen forum, the Northern District of Illinois, has sufficient contacts with the underlying cause of action for purposes of 18 U.S.C. § 1965(a) venue and 28 U.S.C. § 1391(b) venue. Defendants’ motion to dismiss is therefore denied.

B. Transfer

In order to meet § 1404(a) requirements, the movant must establish “(1) that venue is proper in the transferor district; (2) that the transferor court has the power to transfer the case (that is that the transferee court is in a district ‘where it might have been brought’); and (3) that the transfer is for the ‘convenience of the parties and witnesses in the interest of justice.’ ” Hotel Constructors, Inc. v. Seagrave Corp., 543 F.Supp. 1048, 1050 (N.D.Ill.1982).

Venue is proper in this district for the reasons stated above. Additionally, this action could have been brought in the United States District Court for the Southern District of Ohio, which has proper venue and jurisdiction, because defendants reside in Clermont County, Ohio. Exhibit A to Reynolds’ Affidavit, at ¶ s 5 and 6. Accordingly, requirements (1) and (2) are met. This Court now turns to requirement (3).

1. Convenience of the Parties

Before granting a motion to transfer, the Court must consider the convenience of the parties, convenience of the witnesses and the interests of justice, while giving weight to plaintiff’s choice of forum. Yet, the Court gives less weight to plaintiff’s choice of forum in a motion to transfer than a motion to dismiss for forum non conveniens. Cunningham v. Cunningham, 477 F.Supp. 632, 634 (N.D.Ill.1979). Furthermore, the plaintiff’s choice of forum is entitled to less consideration when he is not a resident of the forum district. Pesin v. Goldman, Sachs & Co., 397 F.Supp. 392 (S.D.N.Y.,1975). See also New Images Inc. v. Travelers Indem. Co., 536 F.Supp. 58 (E.D.Pa., 1981). Therefore, the plaintiff’s choice of forum, for purposes of this motion to transfer, is but one factor for the Court to consider. General Signal Corp. v. Western Electric Co., 362 F.Supp. 878, 880 (N.D.Ill.1973).

In this case, Reynolds and Hanson are residents of the Southern District of Ohio. Both defendants are employed in Ohio. So-Comm is a corporation organized and existing under the laws of the state of Ohio which maintains its sole place of business in Clermont County, Ohio. Therefore, transfer of the case from the Northern District of Illinois to the Southern District of Ohio would pose no inconvenience to any party and, in fact, would be more convenient for all parties.

2. Convenience of the Witnesses and Interests of Justice

In analyzing the convenience of witnesses, this Court must consider not only the number of potential witnesses, but also the nature and quality of their testimony in relationship to the issues of the case. Environmental Services Inc. v. Bell Lumber and Pole Co., 607 F.Supp. 851, 854 (N.D.Ill.1984). In this case, the majority of witnesses and bulk of the documentary evidence are located in Ohio, except for two shareholders of So-Comm, Isselhard and Carroll, who reside in Illinois. Plaintiffs racketeering claims concern both the “house counts” in Clermont County Ohio, conducted by two Ohio marketing firms, and the financing arrangement with the Huntington Bank of Ohio. Since neither the marketing firms nor the Huntington Bank are parties to this case, their employees are beyond the subpoena power of this Court.

Additionally, the organizations that undertook the “house counts” in connection with the marketing of the cable systems are RCH Cable Marketing, and Clermont Satellite Services, Inc., both located in Ohio. These organizations are not parties to this litigation and their ten employees, two of which already have given depositions and four others that have promised depositions, are beyond the subpoena power of this Court. There are no Illinois witnesses with knowledge of the Ohio “house count” figures. Moreover, the basis for plaintiffs racketeering claims concerns financing alleged to have been fraudulently obtained from the Huntington Bank of Cleveland, Ohio. That bank is also not a party to this case. The loan agreement was negotiated, executed and performed in Ohio. The bank officer responsible for that account is a resident of Ohio and beyond the subpoena power of this Court. Consequently, transferring this action to the United States District Court for the Southern District of Ohio would serve the convenience of the witnesses.

Therefore, it is in the interest of justice and for the convenience of the witnesses that this suit be transferred to the United States District Court for the Southern District of Ohio. The Ohio forum is clearly more convenient for the majority of witnesses involved in this litigation. Additionally, the compulsory process, assuring attendance of unwilling witnesses, is available to more witnesses in the Ohio forum.

III. CONCLUSION

For the reasons stated above, defendants’ motion to dismiss is denied and defendants’ motion to transfer to the United States District Court for the Southern District of Ohio is granted.

IT IS SO ORDERED.


source: Caselaw Access Project

author: JAMES E. DOYLE, District Judge.

license: Public Domain

text:
    Elizabeth MAY, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 84-C-226-D.
    United States District Court, W.D. Wisconsin.
    April 30, 1985.

      Margaret Stafford, of Stafford & Neal, Madison, Wis., for plaintiff.
    John R. Byrnes, U.S. Atty., Madison, Wis., for defendant.
   OPINION AND ORDER

JAMES E. DOYLE, District Judge.

Plaintiff brings this action pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), seeking a review of a final decision of the defendant Secretary. The Secretary determinéd that plaintiff was ineligible both for disability insurance benefits under sections 216(i) and 223 of the Social Security Act, as amended, 42 U.S.C. §§ 416(i) and 423, and for supplemental security income (SSI) benefits under section 1614(a)(3)(A) of the Social Security Act, 42 U.S.C. § 1382c(a)(3)(A). In accordance with the provisions of 42 U.S.C. § 405(g), the Secretary has filed a certified copy of the administrative record transcript.

OVERVIEW OF THE RECORD

1. Procedural History

On July 30, 1982, Elizabeth May filed applications with the Social Security Administration for disability insurance and supplemental security income benefits; she alleged that she had been unable to work since August 25, 1980, due to her paranoid schizophrenia. (Tr. 50-63) These applications were denied by the Social Security Administration in notices dated September 10, 1982. (Tr. 64-68) On November 4, 1982, plaintiff sought reconsideration of the denials. (Tr. 69) On January 14, 1983, the Secretary determined that plaintiff was not entitled to receive disability insurance or supplemental security income benefits. (Tr. 70-74)

Pursuant to plaintiffs timely request, a hearing was held before an administrative law judge (ALJ) on June 13, 1983. Plaintiff appeared with a non-attorney representative and was the sole witness at the proceeding, which lasted approximately one hour. (Tr. 22-39) On September 26, 1983, the AU issued her decision denying disability insurance and supplemental security income benefits. (Tr. 11-15) On December 16, 1983, plaintiffs non-attorney representative wrote to the Appeals Council, requesting reversal of the AU’s decision or remand. (Tr. 7-9) On December 30, 1983, plaintiff filed a request for review of the AU’s decision. (Tr. 6) The Appeals Council-denied plaintiffs request on January 25, 1984. (Tr. 4-5) Accordingly, the ALJ’s decision became the final decision of the Secretary.

Plaintiff commenced the present action on March 15,1984. In the complaint and in a motion dated July 6, 1984, plaintiff seeks an order reversing the Secretary’s decision or, alternatively; vacating the decision and remanding the case to the Secretary for a new hearing. Plaintiff also requests reasonable costs and disbursements. Plaintiff contends that the Secretary’s decision was arbitrary, capricious, not supported by substantial evidence, and premised on errors of law. Defendant seeks an order affirming the Secretary’s decision.

2. Medical Evidence

Plaintiff was born on October 1, 1937 (Tr. 15) and at the time of the administrative hearing was forty-five years old. (Tr. 26) She is a high school graduate (Tr. 27) and her past relevant work history consists of positions as waitress, assistant manager, and manager at various restaurants. (Tr. 28-31) Plaintiff completed an eight-week homemaker health care aide course on June 10, 1983, at Madison Area Technical College, a vocational school. (Tr. 27)

The record contains a number of medical reports of the diagnosis, treatments and prognoses of plaintiffs mental and physical impairments. Described in chronological order, the following reports summarize the medical evidence of record.

On November 18, 1980, plaintiff was examined at the University of Wisconsin Hospital and was diagnosed as having musculo-skeletal chest wall pain. (Tr. 143)

On March 18, 1981, Kenneth H. Rusch, M.D., board-certified psychiatrist, saw plaintiff and filed an extensive report of their session. (Tr. 144-147) Plaintiff told Dr. Rusch of her “long history of treatment for repeated episodes of mental illness,” which included nine nervous breakdowns, electroconvulsive therapy, numerous suicide attempts, failed marriages, spousal abuse, repeated hospitalizations for psychiatric care and for treatment of complications resulting from a hysterectomy, and long-term use of prescribed tranquilizers. (Tr. 144-145) Plaintiff stated that in spring of 1980 she experienced a “crisis” of extreme paranoia, at which time she went to the Dane County Mental Health Center and was prescribed increased doses of medication. Subsequently, plaintiff left her employment as manager of a hotel restaurant, secured another job at a fast food-restaurant, and finally left that position a few weeks before her examination by Dr. Rusch. (Tr. 145-146)

Dr. Rusch observed that plaintiff was “cooperative and generally appeared in good spirits, except when discussing her father, when she wept.” (Tr. 146) Dr. Rusch further noted that plaintiff showed no signs of depression or suicidal thinking at their session, but that “[s]he did display a somewhat confused manner and expressed some religious preoccupations, as well as what appeared to be paranoid thinking concerning her first husband.” (Tr. 146) Specifically, plaintiff claimed to Dr. Rusch during their session that her first husband had been in the Mafia; she called Dr. Rusch later that day to request that he change his report to state that her first husband had been “a communist or a Nazi.” (Tr. 146) The next day, plaintiff brought Dr. Rusch a note in which “she continued to express considerable paranoid thinking and also spoke in a rather disorganized way about God’s plan.” (Tr. 147) Dr. Rusch noted that she was well-oriented and apparently of average intelligence, but that she suffered from impaired judgment and a lack of insight. (Tr. 147)

Dr. Rusch diagnosed plaintiff’s condition as chronic paranoid schizophrenia, which “appeared to be decompensating into acute psychotic symptomatology.” Plaintiff told Dr. Rusch that she felt unable to handle work pressures. Dr. Rusch concluded:

Despite the fact that she has had multiple psychiatric hospitalizations, apparently she has been able to work in fairly responsible positions. For this reason I would estimate the prognosis would be fair if she cooperates with psychiatric treatment.

(Tr. 147)

In a report dated March 25, 1981, Leonard Stein, M.D., board-certified specialist in psychiatry and neurology, stated that plaintiff had been admitted that day to the Methodist Hospital in Madison, Wisconsin for treatment of a recurring schizophrenic episode. Dr. Stein noted that plaintiff’s symptoms of auditory hallucinations and paranoid thinking had been caught at an early stage, and that appropriate medication had been prescribed to stabilize her condition. Finally, Dr. Stein prescribed continued medication and outpatient followup, and diagnosed plaintiff’s condition upon discharge as “paranoid-type schizophrenia in remission.” (Tr. 148)

On March 26, 1981, Dr. Stein and Ms. Marilyn Holschuh-Peetz, plaintiff’s psychiatric social worker, wrote to the Bureau of Social Security Disability Insurance regarding plaintiff’s condition. The letter stated: “[W]ithin the past year, her ability to function has decreased markedly, even with the continued use of medication. She has not been able to maintain employment successfully in the past few months and is currently unemployed. Her symptomatology of paranoid thinking, labile affect, inability to concentrate, and sleeplessness have increased markedly.” The report concluded that plaintiff had tried unsuccessfully to cope with her increasing deterioration, and that “her application for disability is perceived as a last resort, but a necessary decision.” (Tr. 178)

On March 31,1981, Dr. Stein filed a more extensive report of plaintiff’s psychiatric history, social history, mental status, and prognosis. (Tr. 149-150) He noted that plaintiff had been “doing well” until approximately three months before her March 1981 hospitalization, when she had begun to suffer a “slow, definite downward drift in her psychological state.” (Tr. 149) During the three-month period, plaintiff had begun to experience difficulty with sleep, auditory hallucinations, feelings of depression and fear, sufficient anxiety to quit her job, and other symptoms “severe enough to warrant inpatient admission.” (Tr. 149) Dr. Stein stated that since 1975 he had helped plaintiff through several psychotic episodes and had stabilized her condition by prescribing Stelazine and Cogen-tin. He also noted that hospitalization had not been necessary in the past, primarily because plaintiff had been “quite compliant” in taking her medications. Before the March 31 admission, however, plaintiff had not been taking her medication for several weeks. (Tr. 149)

Dr. Stein observed that plaintiff presented herself as a “verbal and cooperative, intelligent and industrious” person who “has been able to hold gainful employment very well.” (Tr. 149) He noted that she had a “well organized and goal directed” pattern of thinking, which was focused primarily on suspicions that her ex-husband was planning to kill her and her daughter. He stated further that her affect, orientation, memory, judgment and insight were fair to good; however, at the time of their session, she still suffered from hallucinations and “significant agitation and depression.” (Tr. 147) Finally, Dr. Stein diagnosed her depression as stemming from her paranoid schizophrenia, recommended medication with antipsychotics, and suggested that she be discharged in a “relatively short period of time.” (Tr. 147)

On April 7, 1981, Tom Helgeson of the Bureau of Social Security Disability Insurance filed a report summarizing his conversation with Dr. Stein about plaintiff’s condition. (Tr. 176-177) The report reiterates much of the aforementioned information regarding plaintiff’s psychosis. In addition, the report stated: “Dr. Stein feels that it will be at least one month before Ms. May could return to any work. He added that many people with this disorder are not working at all but that she has put forth much effort to remain in the work force.” (Tr. 177)

The next several medical reports, dated March 1981 to May 1982, were prepared as non-psychiatric evaluations of plaintiffs physical condition. They reiterated much of the above summaries of plaintiffs history of psychiatric impairments, but focused primarily on diagnostic testing of her physical impairments. Plaintiff was found to be suffering from mild obesity, musculo-skeletal chest pain, and elevated cholesterol. (Tr. 151-159)

On June 16, 1982, plaintiff was admitted to St. Mary’s Hospital Medical Center in Madison, Wisconsin; on June 17, W.W. Wood, M.D., filed a detailed report of her psychiatric and physical condition. Plaintiff told Dr. Wood, “The lord is calling for my death.” (Tr. 163) She also said that in March or April of 1982, she had begun to experience increased emotional turmoil, including paranoia, fears of being killed, auditory hallucinations, and disturbed sleep. Dr. Wood noted that plaintiff expressed thoughts of religious grandiosity, such as “God has appointed me for special reasons, I know I’m not crazy, it’s the truth,” and “I also think God told me to run for President.”

The report also stated that, despite treatment with increased doses of her usual medication and a new prescription of Mel-laril, plaintiff had continued to cope poorly throughout the spring of 1982 and had been hospitalized several times for “crisis intervention.” Plaintiff suffered from emotional deterioration, apathy, low energy, agitation, restlessness and fear. (Tr. 163) Dr. Wood observed that plaintiff exhibited a number of the above symptoms at their session, and was also apprehensive and tearful. (Tr. 166) He also concluded, “[I]t is certainly not clear whether she is able to form meaningful relationships.” Dr. Wood diagnosed plaintiff’s condition as paranoid schizophrenia with “acute exacerbation and with affective features.” (Tr. 166) Finally, the report stated that plaintiff had experienced a “breakthrough psychosis in spite of appropriate and therapeutic doses of her usual neuroleptic”; accordingly, he prescribed additional antipsy-chotics, follow-up medical evaluation to determine her physical condition, and continued therapy with plaintiff’s psychiatrist (Dr. Stein) and psychiatric social worker (Ms. Holschuh-Peetz). (Tr., 167)

On June 27, 1982, Dr. Wood prepared plaintiff’s discharge summary, which elaborated on the circumstances of her June 16 admission to St. Mary’s Hospital. Dr. Wood stated: “By the. second day of admission, during which time no medications were prescribed, she had become floridly delusional with continued deterioration of her reality testing and judgement.” He noted that plaintiff had been treated with a series of antipsychotics, which resulted in excessive sedation without abatement of the underlying psychosis. Finally, both Stelazine and Doxepin were prescribed and plaintiff’s condition began to improve. “Improvement was evidenced by increasingly appropriate inner [sic] actions with patients and staff on the Unit, appropriate integration in the Unit activities, a decrease in her paranoid delusions, an improvement in reality testing and judgment, and an overall improvement in her affective disorder.” Dr. Wood noted that plaintiff’s mental status at the time of discharge was essentially normal, with the exception of the persistent aforementioned delusion about running for President. (Tr. 160) His final diagnoses were paranoid schizophrenia, acute decompensation and atypical depression. (Tr. 161)

On June 18, 1982, D.A. Daugherty, M.D., filed an internal medicine consultation report which described plaintiff’s physical health as generally good, “except for her psychiatric problems.” (Tr. 168-169) Also on June 18, R.E. Durnin, M.D., reported that an examination of plaintiff’s chest, heart and lungs revealed no abnormalities. (Tr. 170)

On August 23, 1982, plaintiff was examined by Charles T. Meyer, M.D., a board-certified specialist in psychiatry and neurology to whom she had been referred by the Bureau of Social Security Disability Insurance. According to Dr. Meyer, plaintiff stated that she was having great difficulty in keeping a job because of her paranoid ideations. Plaintiff also felt that her drugs were causing “a lot of havoc.” Dr. Meyer then briefly recounted plaintiff's most recent psychiatric difficulties. (Tr. 171) Plaintiff said that in April 1980, her “world fell apart”; Dr. Meyer noted that “she was able to work through April 1982 intermittently, but ... she could not get a breath on the job because she became so anxious, and walked off.” (Tr. 171-172) The report continued: “She clearly was suspicious and described significant paranoid thinking. It would appear that this could seriously interfere with a job performance by Mrs. May; she could easily mispereeive the motives of others, leading to agitation and anger.” (Tr. 172) Dr. Meyer’s final diagnosis of plaintiff’s condition was chronic paranoid schizophrenia, “with exacerba-tions again likely.” (Tr. 173)

On September 8, 1982, Ms. Holschuh-Peetz filed a report with the Bureau of Social Security Disability Insurance. Ms. Holschuh-Peetz stated: “She [plaintiff] is a woman who has always set goals for herself and who has wanted to be a productive and well-functioning person. Her illness in the past has interfered at times with her goals and her abilities to function. In the past two years, however, it has been even more difficult for her, as her illness has been almost constantly a prominent part of her life. She has been unable to work for any extended period of time and this has been difficult for her to come to terms with and accept. She is not currently able to handle employment and it is not likely she will be able to do so in the near future.” (Tr. 174)

Attached to Ms. Holschuh-Peetz’s evaluation is a note from Dr. Stein, plaintiffs treating psychiatrist. Dr. Stein stated: “During the florid state of her illness, the patient suffers from delusions of persecution and experiences auditory hallucinations. Following the florid phase (which has been recurring approximately every six months recently), the patient is left with residuals which significantly interfere with interpersonal relationships and her ability to keep a job. In addition, she remains highly preoccupied with bodily functions, is chronically anxious and depressed.” Dr. Stein further noted that antidepressants had been tried with little effect. The report concluded: “The most important aspect of the patient’s clinical picture is that it has been deteriorating over the past year to the point where she can no longer tolerate the stress of employment.” (Tr. 175)

The final report, prepared by Norman M. Clausen, M.D., a medical consultant with the Wisconsin Bureau of Social Security Disability Insurance, summarized a conversation between him and Dr. Stein on November 15, 1982. (Tr. 179-181) According to the report, Dr. Stein stated that plaintiff’s condition had in the past been controlled well enough so that she could hold a job, but that she was no longer able to function well enough to work. (Tr. 179) The report continued: “He [Dr. Stein] feels that her current anxiety and fears are due to paranoid ideation with different elements in our society such as political happenings and a variety of organizations, particularly those church-related as she is quite religious. She hears voices and can’t identify them.... She will withdraw and have trouble relating to people_’ She withdraws not to be heard from for sometime. When this occurs she gets depressed and cries often.” (Tr. 179-180) Dr. Stein further noted that plaintiff’s personal habits had deteriorated over the past six months and that, given plaintiff’s lack of improvement and the nature of her mental disease, there was serious doubt that she would ever be economically independent again. (Tr. 180)

3. Plaintiffs Testimony

Plaintiff testified that the last time she had held a job “for any length of time” was in August 1980. (Tr. 28) At that time, she was a restaurant manager with supervisory authority over waitresses, busboys, cashiers and hostesses. However, she began to suffer from stress, fatigue and medication side effects, and eventually resigned from her position. (Tr. 28-30) Plaintiff also worked for a McDonald’s restaurant, but had to leave that job also when she began suffering from hallucinations and listlessness. (Tr. 30) Plaintiff then began working at a Swiss Colony Restaurant but was fired for missing too much work due to her illness. (Tr. 30-31) Plaintiffs final job was as a cafe waitress; she left that position in April 1982 when she began hallucinating that the restaurant was being gassed. (Tr. 31) Plaintiff no longer sought employment after April 1982. (Tr. 31)

Plaintiff also testified that she had been receiving city welfare benefits since April 1982. She stated that she had had some “good days” and some “bad days”: “Sometimes I can go 3 days where it’s been real, real rough. Then Pm totally dragged out when I do basically seem like it’s going to be a good day. [sic] Then Pm basically dragged out from going through the previous 3 days.” (Tr. 32-33)

Plaintiff testified that she had passed the vocational health care course with three absences in eight weeks, and that it had been stressful and very difficult. (Tr. 33) She also stated that she continued to see Dr. Stein about once a month and Ms. Holschuh-Peetz about once a week. (Tr. 34) Plaintiff said that she attended a Bible study group occasionally, but sometimes had trouble getting along with the other students. (Tr. 34) When asked by the AU if she tried to pursue other activities, she replied: “Not a lot — not a lot where there’s stress involved. Pm — Pm afraid— of becoming too stressful and overtired and I might have another illness again.” (Tr. 35)

Plaintiff also testified that, as a waitress, she had had difficulties getting along with co-workers, remembering orders taken from customers, and handling money. (Tr. 36-37) Finally, plaintiff said that she was looking for a low-stress job in case she was denied benefits, but that Dr. Stein and Ms. Holschuh-Peetz had told her she could not work more than two to three hours a day. (Tr. 37-38)

THE AU’S FINDINGS AND DECISION

On September 26, 1983, the AU issued her decision. From her evaluation of the evidence of record, the AU made the following relevant findings:

(1) The claimant was born on October 1, 1937, and completed the twelfth grade of school and has past relevant work experience as a restaurant waitress.
(2) The claimant met the special earnings requirements for Title II disability insurance benefits on August 25, 1980, the alleged date of disability onset, and continued [will continue] to meet said requirement through December 31, 1985.
(3) The claimant has been diagnosed as having paranoid type schizophrenia.
(4) The claimant has no other significant . physical or mental impairment.
(5) Observation of the claimant at the hearing failed to reveal any marked abnormality in mental status or behavior.
(6) The claimant is able to perform her past relevant work experience as a restaurant waitress or, in any case, the routine, repetitive, and low-stress work found in unskilled work which exists in significant numbers in the national economy.
(7) The claimant was not under the “disability” as defined in the Social Security Act, as amended, at any time on or prior to the date of this decision.

(Tr. 15)

In the text of her opinion, the AU made the following pertinent finding: “[T]he medical evidence disclosed that, except for the immediately aforementioned occasions, the claimant has been without evidence of marked restriction in daily activities, marked constriction of interest, marked deterioration in personal habits, or seriously impared [sic] ability to relate to others.” (Tr. 14) She also stated that plaintiffs mental status had not been of such severity as to preclude plaintiffs successful completion of vocational rehabilitation in June 1983, indicating that plaintiff did not suffer from a disability. (Tr. 14-15)

OPINION

1. Standard of Review

Under 42 U.S.C. § 405(g), this court’s review of the Secretary’s findings is limited to a determination whether those findings are supported by substantial evidence based on the record as a whole. Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir.1982); Carver v. Harris, 634 F.2d 363, 364 (7th Cir.1980). Applying this test, the court must uphold the Secretary’s determination that plaintiff is not disabled for the purpose of receiving benefits if the findings are supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Allen v. Weinberger, 552 F.2d 781, 784 (7th Cir.1977), quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). However, where the Secretary’s factual determinations are premised on an erroneous view of the applicable law, this court is not bound by that determination. Schmoll v. Harris, 636 F.2d 1146, 1150 (7th Cir.1980). Plaintiff here contends both that the AU’s findings are not supported by substantial evidence, and that the AU committed errors of law.

2. Applicable Regulations

Under 42 U.S.C. § 423(a)(1), a successful claimant for disability insurance benefits is required to be “under a disability.” That term is defined in 42 U.S.C. § 423(d)(1)(A) as:

inability 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.

“Physical or mental impairment” is defined in 42 U.S.C. § 423(d)(3) as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” Under 42 U.S.C. § 423(d)(5), a claimant “shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require.” 42 U.S.C. § 423(d)(1), (3) and (5) (1978). See Johnson v. Weinberger, 525 F.2d 403 (7th Cir.1975).

Pursuant to the Social Security Act, the Secretary has promulgated regulations prescribing a five-step sequential inquiry to be followed in determining whether a claimant is disabled. The following steps are addressed:

(1) Is the claimant presently unemployed?
(2) Is the claimant’s impairment “severe”?
(3) Does the impairment meet or exceed one of a list of specific impairments?
(4) Is the claimant unable to perform his or her former occupation?
(5) Is the claimant unable to perform any other work within the economy?

An affirmative answer to one of the above questions leads either to the next question or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of nondisability. 20 C.F.R. § 404.1520 (1983); Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir.1984).

Specifically, the third step states: “If you have an impairment which meets the dura-tional requirement and is listed in Appendix 1, or we determine that the impairment is equal to one of the listed impairments, we will find you disabled without considering your age, education, and work experience.” 20 C.F.R. § 1520(d). In this case, the relevant listed impairment is defined in Appendix 1, Section 12.03:

12.03 Functional psychotic disorders (mood disorders, schizophrenias, paranoid states). With both A and B:
A. Manifested persistence of one or more of the following clinical signs:
1. Depression (or elation); or
2. Agitation; or
3. ■ Psychomotor disturbances; or
4. Hallucinations or delusions; or
5. Autistic or other regressive behavior; or
6. Inappropriateness of affect; or
7. Illogical association of ideas;
B. Resulting persistence of marked restriction of daily activities and constriction of interests and seriously impaired ability to relate to other people.

Under the Act, a claimant bears the initial burden of proving the existence of a disability. Unless a claimant persuades the Secretary to answer affirmatively to step three in the aforementioned sequential inquiry, thereby requiring a presumption of disability, he or she bears the burden of showing an impairment of sufficient severity to preclude the type of work in which he or she had previously been engaged. Only if the claimant has met this latter test does the burden shift to the Secretary to prove the existence of some other kind of “substantial gainful employment” that the claimant could perform. Whitney v. Schweiker, 695 F.2d at 786; McNeil v. Califano, 614 F.2d 142 (7th Cir.1980).

3. Issues in present case

The stated basis for the ALJ’s decision in the present case is that plaintiff “is able to perform her past relevant work experience as a restaurant waitress.” Thus, the decision was made at step four of the sequential inquiry. The alternative stated basis for the ALJ’s decision is that plaintiff “is able to perform ..., in any case, the routine, repetitive, and low-stress work found in unskilled work which exists in significant numbers in the national economy.” Thus, the decision was made, alternatively, at step five. Although it is not explicit in the ALJ’s findings, the fact that her decision came at step, four or, alternatively, at step five, compels the conclusion she had determined that plaintiff had successfully negotiated steps one and two, but the ALJ had determined, adversely to plaintiff, at step three that plaintiff’s disability did not meet or exceed one of the listed impairments in Appendix 1, § 12.03.

Plaintiff contends that the AU erred at step three; that the absence of substantial evidence to the contrary compelled a finding that plaintiff’s disability meets one of the listed impairments in Appendix 1, § 12.03 and meets the durational requirement of 42 U.S.C. § 423(d)(1)(A) and 20 C.F.R. § 404.1520(d); and that she is entitled, without further inquiry, to a finding of disability and the resulting benefits. Alternatively, plaintiff contends: (a) that if step four must have been reached, the absence of substantial evidence to the contrary compelled a finding that plaintiff is unable to perform her former work as a waitress; and (b) that if step five must have been reached, the absence of substantial evidence to the contrary compelled a finding that plaintiff is unable to perform other work within the economy.

4. Step Three: Listed Impairment

After a brief synopsis of the medical evidence, the ALJ’s opinion states: “[T]he medical evidence disclosed that, except for the immediately aforementioned occasions, the claimant has been without evidence of marked restriction in daily activities, marked constriction of interest, marked deterioration in personal habits, or seriously impared [sic] ability to relate to others.” (Tr. 14) Apparently, this passage refers to the definition of “functional psychotic disorders” in Appendix 1, § 12.03. However, the ALJ’s conclusion is not supported by the evidence of record.

Plaintiff submitted extensive evidence concerning her psychiatric condition during the alleged period of disability. These medical reports, particularly those of Dr. Rusch, Dr. Stein, Dr. Wood and Dr. Meyer, describe plaintiff as a woman severely debilitated by chronic paranoid schizophrenia. They contain ample documentation of the clinical manifestations of plaintiffs disorder. In fact, several reports directly contradict the ALJ’s findings regarding the severity of plaintiffs impairment. Significantly, even Dr. Meyer, the psychiatrist to whom plaintiff was referred by the Bureau of Social Security Disability Insurance, corroborated the seriousness of her condition and noted that “exacerbations were again likely.” (Tr. 173)

The AU accorded little, if any, weight to the medical reports and opinions of plaintiffs treating psychiatrist and psychiatric social worker, who had been familiar with her condition since 1975. While the opinion of a treating physician is not determinative of a claimant’s disability, an AU is not entitled to ignore it without good reason. “If the AU concludes that a treating physician’s evidence is credible ... he should give it controlling weight in the absence of evidence to the contrary because of the treating physician’s greater familiarity with the plaintiff’s conditions and circumstances.” Whitney v. Schweiker, 695 F.2d at 789; Carter v. Schweiker, 535 F.Supp. 195, 203-204 (S.D.Ill.1982). See also Carver v. Harris, 634 F.2d 363, 364 (7th Cir.1980); Allen v. Weinberger, 552 F.2d 781, 785-786 (7th Cir.1977). Here, the AU made no finding regarding the credibility or lack of credibility of the treating physician’s assessments. (Tr. 14) Accordingly, the AU erred in assigning Dr. Stein’s medical opinions little or no weight.

The AU’s opinion noted that at the hearing, plaintiff revealed “no marked abnormality in mental status and behavior.” (Tr. 15) It is well settled that an AU is entitled to rely on personal observations during a hearing concerning the severity of a claimant’s pain; such credibility determinations may even be given considerable weight. Whitney v. Schweiker, 695 F.2d at 788; Bibbs v. Secretary of Health, Education and Welfare, 626 F.2d 526, 528 (7th Cir.1980). However, it is also clear that an AU must consider all the evidence and not ignore that which suggests a contrary conclusion. Whitney v. Schweiker, 695 F.2d at 788; Garcia v. Califano, 463 F.Supp. 1098, 1105 (N.D.Ill.1979). Given the substantial evidence supporting plaintiffs disability claim in this case, the AU erred in giving her personal observations controlling weight.

Finally, the AU’s opinion suggested that plaintiffs completion of a vocational course in June 1983 was indicative of nondisability. (Tr. 14-15) Certainly, this evidence was entitled to consideration. However, plaintiffs testimony also revealed that she encountered considerable difficulty simply in completing the eight-week course.

In short, despite the allocation of the burden of persuasion on step three to plaintiff, there was not substantial evidence to support a finding of an absence of manifested persistence of depression, agitation, hallucinations and delusions, inappropriateness of affect, and illogical association of ideas, within the meaning of § 12.03 A, or to support a finding of an absence of resulting persistence of marked restriction of daily activities, constriction of interests, and seriously impaired ability to relate to other people, within the meaning of § 12.03 B. A finding of the existence of a functional psychotic disorder (schizophrenia and paranoid states), within the meaning of § 12.03, was compelled. An affirmative answer to the question embodied in step three was compelled, and there was no occasion to reach steps four or five."

5. Step Four: Ability to Return to Former Work

I will assume, however, that there is substantial evidence to support the AU’s implicit finding, at step three, that there was an absence of a functional psychotic disorder, within the meaning of § 12.03. For reasons appearing in my discussion of step three, and bearing in mind that the burden of persuasion as to step four rests with the plaintiff, there is no substantial evidence to support the AU’s finding that plaintiff was capable of returning to her former work as a waitress. The medical reports specifically addressing this question emphatically reach the contrary conclusion. Therefore, the AU was compelled to find the plaintiff was unable to perform her former work, and the AU was compelled to proceed to step five.

6. Step Five: Ability to Hold Other Substantial Gainful Employment

Step five is reached only when step four has been answered in plaintiff’s favor, and, as to step five, the burden of persuasion is allocated to the defendant Secretary.

Regulations (embodying what are known as the “grids”) have been promulgated in an effort to regularize the Secretary’s decision-making at step five. 20 C.F.R. § 404.-1569, Appendix 2. When the impairment is wholly exertional, “the correct disability decision” is to be found in the grid. Appendix 2, § 200.00(d). When the impairment is nonexertional: “determination as to whether disability exists shall be based on the principles in the appropriate sections of the regulations, giving consideration to the rules for specific case situations in this Appendix 2. The rules do not direct factual conclusions of disabled or not disabled for individuals with solely nonexertional types of impairments.” Appendix 2, § 200.00(e)(1).

Plaintiff’s impairment is wholly nonexer-tional. The grids are not considered to provide the correct disability decision, although consideration should be given them. Id.

The AU found that plaintiff “is able to perform ... the routine, repetitive, and low-stress work found in unskilled work which exists in significant numbers in the national economy.” The decision contains no explanation for this finding which is directed to an equation between plaintiff’s residual functional capacity, age, education, and past work experience, on the one hand, and the demands of certain kinds of substantial gainful work which exists in the national economy, on the other hand. Nothing in the AU’s decision reveals that the finding springs from a conscious effort to seek guidance in the grids, as to either side of the equation.

It is true, of course, that as a result of a generalized exercise of judicial notice, the grids embody findings that approximately 200 separate unskilled sedentary occupations, 1600 separate sedentary and light unskilled occupations, and 2500 separate sedentary, light and medium unskilled occupations can be identified, each representing numerous jobs in the national economy. Appendix 2, §§ 201.00(a), 202.00(a), 203.-00(a). It is also true that plaintiffs age, education, and past work experience were established in the administrative record, and that the record included considerable information bearing on the nature and extent of plaintiffs residual functional capacity.

Even if we were to assume that the AU had correctly assessed that residual functional capacity, however, there is a missing link: namely, an informed comparison of the specific components of plaintiffs vocational capacity with the specific demands of specific jobs. Because the grids are unavailable to supply that missing link in cases of nonexertional impairment, it must be supplied from a source other than an AU’s intuition. In functional psychotic disorders, subtleties abound, many of which may be highly relevant to the specific demands of specific jobs.

It has been held that when exertional impairments are combined with nonexertional impairments which further limit the range of jobs available to a claimant, and the grids do not apply conclusively, “the Secretary must produce a vocational expert to testify that the particular claimant retains the ability to perform specific jobs which exist in the national economy.” Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir.1983). See Taylor v. Weinberger, 512 F.2d 664, 668 (4th Cir.1975). See also, 20 C.F.R. § 1566(e). It is unnecessary to adopt so broad a rule in the present case. As I have said, the nature of this plaintiffs impairment is such that its vocational implications are not readily discernible. In such a case, a decision by an AU cannot be reasonably informed without testimony from a vocational expert or guidance from some written source equivalent to such testimony. Expert testimony was not produced here. So far as appears, no equivalent source of guidance was sought out.

I conclude that there is no substantial evidence to support a finding that plaintiff is able to engage in substantial gainful activity, other than her previous work, which exists in the national economy.

The only real question is whether reversal or remand is appropriate on this aspect of the case. In light of my decision on step three, remand is inappropriate. Steps four and five ard being addressed by me, alternatively, only because each of them was relied upon by the AU, independently of the other, as a basis for a determination of no disability. The manner in which the AU adverted to step five is casual, as is her failure to seek out information relevant to the inquiry.

ORDER

It is ordered that:

(1) plaintiffs request for reversal of the Secretary’s decision is granted;

(2) defendant’s request for affirmance of the Secretary’s decision is denied;

(3) plaintiff’s request for attorney’s fees pursuant to 42 U.S.C. § 405, and costs pursuant to 28 U.S.C. § 2412(a), is granted;

(4) this action is remanded with the direction that the claim of plaintiff be allowed as of August 25, 1980; and

(5) the clerk of court enter judgment providing that: (a) this action is remanded to defendant with the direction that the claim of plaintiff be allowed as of August 25, 1980, (b) attorney’s fees are awarded to plaintiff pursuant to 42 U.S.C. § 405, and costs are awarded to plaintiff pursuant to 28 U.S.C. § 2412(a).

      . Dr. Rusch’s report noted that plaintiff "appeared to be a reliable informant, although there is no corroborating information.” (Tr. 146)

      . "Chronic" is defined as "persisting over a long period of time.” Dorland’s Illustrated Medical Dictionary 316 (25th ed. 1974).

      . "Paranoid schizophrenia” is defined as “a psychotic state characterized by delusions of grandeur or persecution, often accompanied by hallucinations.” Id. at 1386.

      . "Decompensate" is defined as "to suffer loss of ability to maintain normal or appropriate compensatory mechanisms." Random House College Dictionary 345 (revised ed. 1980).

      ."Psychosis” is defined as “a general term for any major mental disorder of organic and/or emotional origin characterized by derangement of the personality and loss of contact with reality, often with delusions, hallucinations, or illusions.” Dorland’s Illustrated Medical Dictionary at 1283.
      "Symptomatology" is defined as "the combined symptoms of a disease." Id. at 1513.

      . "Remission" is defined as "a diminution or abatement of the symptoms of a disease; also, the period during which such diminution occurs.” Id. at 1343.

      . Stelazine is the trademark name for a major tranquilizer. Id. at 1470. Cogentin is the trademark name for a type of nerve-blocking agent. Id. at 336.

      . Mellaril is the trademark name for a type of strong tranquilizer. Id. at 929.

      . "Neuroleptic" is defined as "a neuropharmaco-logic agent that has antipsychotic action affecting principally psychomotor activity, and is generally without hypnotic effects, as a tranquilizer.” Id. at-1041.

      .Doxepin is the trademark name for a type of antidepressant. Id. at 473.

      . The section actually requires "persistence of marked restriction of daily activities and construction of interests and seriously impaired ability to relate to other people" Appendix 1, § 12.03(B). "[D]eterioration of personal habits (including personal hygiene)” is among the issues to which clinical findings are considered relevant. Appendix 1, § 12.00(A).

      . The Secretary’s brief quotes very selectively from these reports to support the contention that plaintiffs condition was not of disabling severity. This approach is flawed in several respects. First, in sifting through medical reports solely for "positive" assessments of plaintiff’s capabilities, the Secretary ignores the overall negativity of these reports; such selective interpretation does not constitute "substantial evidence" of nondisability.
      Second, the Secretary’s brief, as well as the ALJ’s opinion, fails to take into account the progressive deterioration of plaintiff's condition as revealed by the medical evidence as a whole. Plaintiffs disorder emerges as one of gradual debilitation; therefore, it is entirely consistent for earlier reports to contain more "positive” prognoses than later reports.
      Finally, the Secretary’s brief suggests that evidence of relatively symptom-free periods in plaintiff's life is persuasive proof of nondisability. However, particularly in claims involving mental disorders, symptom-free intervals do not compel a finding of nondisability. "Unlike a physical impairment, it is extremely difficult to predict the course of mental illness. Symptom-free intervals, though sometimes indicative of a remission in the mental disorder, are generally of uncertain duration and marked by an impending possibility of relapse.” Lebus v. Harris, 526 F.Supp. 56, 61 (N.D.Cal.1981). The record shows that the examining physicians took these considerations into account in their evaluations of plaintiffs condition. It is obvious from the ALJ’s decision and the Secretary's brief that the ALJ and the Appeals Council did not.

      . The Secretary’s brief contends that the ALJ properly accorded little weight to these medical opinions because they were "unsupported by specific clinical findings.” There is no basis for this assertion. According to Appendix 1, § 12.-00(A), clinical signs are "medically demonstrable phenomena ... which indicate specific abnormalities of behavior, affect, thought, memory, orientation, or contact with reality,” and clinical findings are those "relevant to such issues as restriction of daily activities, constriction of interests, deterioration of personal habits (including personal hygiene), and impaired ability to relate to others.” The medical evidence of record, particularly the reports submitted by Dr. Stein, directly addressed these requirements.
      The ALJ’s cursory opinion and the Secretary’s brief fail to honor well-accepted diagnostic techniques and methodology of the psychiatric profession. "Courts have recognized that a psychiatric impairment is not as readily amenable to substantiation by objective laboratory testing as is a medical impairment and that consequently, the diagnostic techniques employed in the field of psychiatry may be somewhat less tangible than those in the field of medicine.” Lebus v. Harris, 526 F.Supp. at 60. See Lewis v. Weinberger, 541 F.2d 417, 420 (4th Cir.1976).

      . Why, for example, the AU implicitly decided that only unskilled work would be appropriate for plaintiff, without inquiry into transferability of skills or capacity to acquire them, is unexplained and unclear.


author: ROSENBERG, District Judge.

text:
    David SMIRGA, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
    Civ. A. No. 83-1972.
    United States District Court, W.D. Pennsylvania.
    April 30, 1985.
    Robert N. Peirce, Pittsburgh, Pa., for plaintiff.

      Albert W. Schollaert, Asst. U.S. Atty., Pittsburgh, Pa., for defendant.
   MEMORANDUM OPINION

ROSENBERG, District Judge.

This matter is before me on an appeal from the Secretary of Health and Human Services and from the decision of the Administrative Law Judge dated November 30, 1982, and after the Appeals Council accepted the decision of the Secretary as final on June 6, 1983.

The administrative law judge in denying the plaintiffs claim for compensation found that the plaintiff, David Smirga, suffered from Fong’s Syndrome and low back syndrome. He also found that although the plaintiff was not capable of performing his past relevant work which was of an unskilled nature and in the medium to heavy exertional level, the plaintiff could perform sedentary work, and therefore, he found that the plaintiff was not entitled to disability, insurance benefits. The Appeals Council and the Secretary sustained the administrative law judge’s decision.

The plaintiff was injured on January 9, 1979 after a fall down icy steps at his place of employment. From that time on he suffered variously and was hospitalized at Montefiore Hospital from May 14 to 17, 1980 for lumbar disc syndrome. The results of a lumbar myelogram were within normal limits.

Dr. Joseph Novak, a specialist in physical medicine, reported the plaintiff to be in obvious misery due to low back pain of unknown etiology with a limited range of motion and possibility of L5-S1 radiculopa-thy; that the lumbar lordosis was completely flattened; and that there was muscle spasm on both sides in'the rectus spinae muscles. This was reported by Dr. Novak on October 10, 1980.

From November 16 to December 6, 1980, the plaintiff was hospitalized at St. Francis General Hospital, where a myelogram suggested Fong’s Syndrome. A lumbosacral spine showed slight lumbar scoliosis with convexity to the right and small marginal osteophytes visible in the lumbar spine. X-rays showed a limited range of motion. Posterior iliac horns were visible bilaterally-

On December 12,1980, Dr. Novak reported that the plaintiff had been evaluated in the rehabilitation center and it was his opinion that “the patient can only perform full-time light work with maximum of 10 pounds of lifting, carrying 10 pound articles from one place to another.” He felt the plaintiff should receive a job where he could sit, stand and walk or move around at his discretion. He further stated that the plaintiff should not be required to climb, crawl or squat. Dr. Novak’s recommendation did not preclude the plaintiff’s performing sedentary work as indicated by the magistrate to whom the matter had been originally referred and within the provisions of 20 CFR § 404.1567(a).

Dr. Novak again reported on June 8, 1981 that the plaintiff “should be encouraged to accept a light duty job and if one is available, that would be the best solution for this patient’s problems”, and advised the plaintiff there was nothing else he could do for him and he was discharging him from his care.

On January 24 to January 30, 1982, the plaintiff was hospitalized at the East Suburban Health System for lumbar myelo-gram which was interpreted as normal, but bilateral iliac horns were noted. He was again hospitalized at East Suburban from March 25 to March 30, 1982, where he underwent surgery for resection of the anterior horns from the right iliac wing due to his Fong’s disease, by Dr. M.A. Trano-vich, an orthopedic surgeon.

On April 19, 1982, Dr. Bertrand Marlier, Jr. a neuro-surgeon, reported that his diagnosis was lumbar radiculities of undetermined etiology, and that the plaintiff had pain although he had no paravertebral muscle spasm.

On April 30, 1982, Dr. Roy S. Temeles, an orthopedic surgeon, reported that his examination revealed no paravertebral muscle spasm while moving about, and that X-rays from the Montefiore Hospital revealed “strange bony spurs on both ilia which had been labeled “Fong’s Syndrome”.

Dr. Temeles commented further that “he had never before heard of this syndrome and was unable to find a reference to it in his office library” and “... that he felt plaintiff had been made a medical invalid by his experiences with the medical profession rather than with any traumatic disease reportedly acquired”. He also felt “plaintiff was capable of working in his former capacity without limitation”. He felt “plaintiffs syndrome could be investigated while he was busy earning a living for himself and his family, as he did prior to the revelations of the Montefiore X-ray Department”. Dr. Temeles also felt a label had been hung on this individual.

On May 20, 1982, Dr. Michael A. Trano-vich, an orthopedic surgeon first saw the plaintiff when he was called as a consultant during the plaintiffs hospitalization with low back and iliac wing pain. He reported that the plaintiff “is a victim of a congenital anomaly known as Fong’s Syndrome which is a very intrapatellar nail dysplasia. The consequence of this is that he had numerous abnormalities of joints of his body”.

But Dr. Tranovich does not say that he took X-rays or made an X-ray examination, but that he had resected anterior horns from the right iliac wing due to his Fong’s disease on March 25, 1982 and stated he felt it was reasonable to assume that the plaintiff would be disabled from his joint problems, but he would be able to perform sedentary work; and that the plaintiff had done fairly well from the surgery but it would certainly limit his ambulation in the future.

The evidence of all the doctors, except Dr. Roy S. Temeles, who it appeared made no examination of his own, indicated this young man is suffering from a hereditary disease. But not a single one of them explained to the administrative law judge what the disease was and whether or not it could be eradicated, or whether the spurs were constantly harvesting along the skeletal structure of this patient. All we do have is the evidence that Dr. Novak found the plaintiff was in obvious misery due to low back pain of unknown etiology with great reduction of the range of motion and possibility of L5-S1 radiculopathy, and that his “lumbar lordosis was completely flattened”. And on January 8, 1981, Dr. No-vak reported that “I advised him that there is nothing else I can do for him and the limitations which he has to follow are clearly outlined in my letter of December 12, 1980. I am discharging him from my care.”

With due credit to the healing profession without whom society could not exist today, it is all the more surprising that the doctors in this case did not or could not present a clear picture of Fong’s Syndrome or disease and of its present and future results because of its attacking the claimant.

The statements of Dr. Temeles raise serious doubts about the real condition of the plaintiff and whether or mot the administrative law judge inquired sufficiently into the matter to make the decision upon which he basically denied the plaintiff any disability benefits.

I repeat verbatim what Dr. Temeles said (Tr. pg. 174):

“... If this is a syndrome related to a genetic inheritance then certainly a fall down a flight of stairs should have nothing to do with his present complaints. Thinking only in terms of this patient’s trauma, he has been worked up by more than 1 capable physician in this city. None of these physicians have come forward with a suitable answer to this patient’s continued complaint and disability. Personally, I believe this patient has been made a medical invalid by his experiences with the medical profession, rather than with any traumatic disease reportedly acquired_ I believe this patient’s syndrome can be very handily investigated while he is busy earning a living for himself and his family as he did prior to the revelations of the Montef-iore x-ray dept., who inadvertently hung a label on this individual.”

Even Dr. Temeles admits the claimant was a “medical invalid”.

Dr. Temeles’ statement is the more remarkable when we consider, first, that he is an orthopod, and second, that his examination revealed “... no paravertebral muscle spasm, while moving about,” and that X-rays from the Montefiore Hospital revealed “... strange bony spurs on both ilia as described and as labeled ‘Fong’s disease’.” From what was stated by Dr. Tem-eles, his examination was visual and physical, and that he did not view the condition by the aid of X-rays. And this expert was not only surprised to learn that there was such a disease as “Fong’s” but he seemed unconcerned about following it through, even for educational reasons after “Referring to my limited library in the office, I could find no reference to this syndrome .... I have never seen a reference to this problem.” Under these circumstances, the administrative law judge should not have given weight to his medical opinion and conclusions.

The administrative law judge should have questioned his testimony as a matter of credibility because his main source of knowledge was that Fong’s Syndrome has surfaced in the “revelations of the Montef-iore x-ray dept. .. .”.

Dr. Tranovich, an orthopedic surgeon, reported that the plaintiff “is a victim of congential anomaly known as Fong’s Syndrome which is a very intrapatellar nail dysplasia. The consequence of this is that he had numerous abnormalities of joints in his body.”

For a physician’s conclusion as to disability to have credence, it must be supported by specific and complete clinical findings. Cummings v. Harris, 513 F.Supp. 35 (D.C.Ohio, 1980). Such information was lacking in connection with this testimony.

There is specific relevant evidence which has been uncontradicted to the effect that the claimant is a victim of Fong’s Syndrome.

While it would seem to some extent in this case that the doctors stated that the claimant might be able to perform certain employment, the evidence to that effect came from doctors who were not fully informed on Fong’s Syndrome or disease and were speaking with a lack of medical knowledge, and thus, their evidence should not have been accepted as absolutely credible by the administrative law judge. And while it does appear that the administrative law judge relied upon and held that the claimant suffered from Fong’s Syndrome, there was no other information before him upon which to make this determination. It may be said that the law judge principally relied upon medical opinions which were devoid of any reasoned analysis of why the claimant would be able to function more successfully in the future than he had in the past; thus the matter should be remanded to the Secretary for taking additional evidence. Currier v. Secretary of Health, Education and Welfare, 612 F.2d 594 (C.A.1, 1980).

A district court in reviewing the final decision of the Secretary must take into account whatever is in the record which detracts from the weight of the evidence presumably supporting the decision. Johnson v. Califano, 607 F.2d 1178 (C.A.6, 1979). The standard for reviewing the decision of the Secretary denying disability benefits under this chapter is whether there was substantial evidence to support the decision of the Secretary. Williams v. Secretary of Health, Education and Welfare, 461 F.Supp. 596 (D.C.Tex., 1978). Substantiality of the evidence before the Secretary must be based upon the record as a whole. Allen v. Califano, 612 F.2d 139 (C.A.6, 1980).

Once a claimant establishes disability for his last employment role, he has made out a prima facie case of disability for purposes of this chapter. Phillips v. Harris, 488 F.Supp. 1161 (D.C.Va., 1980). If the administrative law judge does not have before him sufficient facts upon which to make an informed decision for disability benefits, his decision is not supported by substantial evidence. McGee v. Weinberger, 518 F.2d 330 (C.A.5, 1975).

The Act requires that the agency action be sustained if the decision is based on substantial evidence in the record, that is, such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Buzzeo v. Harris, 486 F.Supp. 690 (D.C.N.Y., 1980).

The district court on appeal, such as here, will not try the claimant de novo, neither can it delegate its functions to carefully scrutinize the entire record in conducting the review. Klug v. Weinberger, 514 F.2d 423 (C.A.8, 1975).

Where there is conflicting evidence before an administrative law judge, it is for that officer to make a determination based upon credible evidence and the fact of what the medical evidence is so far as it relates to the true medical condition of the claimant; and such findings are conclusive on the issue of liability if they are supported by substantial evidence in' the record. Crowe v. Harris, 489 F.Supp. 683 (D.C. Tenn., 1980); Williamson v. Califano, 487 F.Supp. 308 (D.C.Mo., 1980). But that is where there is conflicting evidence. In this case it was not a matter of conflicting evidence. It was a matter of evidence lacking in knowledge of a specific medical matter and of any explanations in connection therewith. So that any conclusions drawn by an administrative law judge must therefore have rested upon his own subjective judgment.

The medical testimony here, on the whole, while it is not complete, it is uncon-troverted. Under these circumstances, the Secretary cannot arbitrarily choose to ignore this uncontroverted testimony that the claimant was or is suffering from Fong’s Syndrome or disease. Klug v. Weinberger, supra.

There is no doubt about the claimant suffering pain and disability and that the pain would be a natural corolary from the spurs or horns as they may exist in his joints. Pain would by necessity be subjective in nature and difficult to evaluate. However, its application to the victim is a matter which should have been determined in the light of the character or characteristics of the individual. Myers v. Secretary of Health and Human Services, 602 F.Supp. 1142 (D.C.Pa., 1985).

All of this was not very revealing as evidence before an administrative law judge and it certainly is not revealing to a district judge on appeal. Accordingly, I attempted to find information from medical volumes. None of the medical books in our Circuit Library mention “Fong’s Syndrome”.

• Inquiry was had of an expert in this field, through the courtesy of the University of Pittsburgh, Falk Health Science Library, with reference to the Illustrated Dictionary of Eponymic Syndrome and Diseases and their Syndromes. Osterreicher/Turner. Here in pertinent part is the statement that Fong’s disease is hereditary; affects patella, nails and elbows, iliac horns and abnormality ridging. While this is described with other categorized syndromes, there is sufficient information which is reported to show that more revealing evidence can be elicited by the administrative law judge in order to arrive at an appropriate basic and just determination.

Congress expressed its intent to provide by the Social Security Act, with which we are here concerned, for those suffering ailments which deprive them of the ability to be gainfully employed. It provided rules and regulations which are, more or less, commonplace. It delegated to the Secretary the duty of administering the Act and making factual determinations and conclusions within the guidelines set out in the statute. Gardner v. Bishop, 362 F.2d 917 (C.A.10, 1966). The hearing officer’s decision must rest on legal rules and evidence adduced at the hearing. Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287 (1970). And once the plaintiff has presented sufficient evidence to show a likelihood for a basic claim, and inability to engage in his former job, the burden then shifts to the Secretary to show a lack of sufficiency in the plaintiff’s claim and that the claimant is capable of performing some other kind of substantial work available in the economy as gainful employment. United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947).

Where evidence has been presented and the case is close as it involves the application of the Social Security Act, the balance should be cast in favor of, rather than against, coverage in order to fulfill the statute’s broad and beneficient objects. Schwing v. United States, 165 F.2d 518 (C.A.3, 1948). While the burden is upon the plaintiff to demonstrate by medical evidence as well as by subjective evidence that he is unable to return to his former occupation, Cotter v. Harris, 642 F.2d 700 (C.A.3, 1981), reh. den. 650 F.2d 481; Demandre v. Califano, 591 F.2d 1088 (C.A.5, 1979), cert. den. 444 U.S. 952, 100 S.Ct. 428, 62 L.Ed.2d 323, it is sufficient only that he establish a prima facie case of his claim, and thereafter the burden shifts to the Secretary to show the opposite. Daring v. Heckler, 727 F.2d 64 (C.A.3, 1984); Bloodsworth v. Heckler, 703 F.2d 1233 (C.A.11, 1983); Flood v. Schweiker, 643 F.2d 1138 (C.A.5, 1981).

By expressing its intent, Congress was delegating the function of performance and fulfillment to the Secretary and judicial enforcement to the courts. But neither an Act of Congress nor any pronouncements or even dicta of the courts can substitute for facts which they, the Congress, seek remedially to legislate. And when a judicial agency charged with the ascertainment of facts fails to require elucidation of the facts, primarily medical, and accepts these in conclusionary fashion instead of requiring elaborations and knowledgeable and satisfying explanations to appropriately inform the inquiry agency, surmise replaces fact-finding and the congressional intentions become withered.

The record here shows evidence from quite a few medical doctors, none of them seem to be particularly informed on the subject of Fong’s Syndrome, but only with reference to an X-ray from Montefiore Hospital that the plaintiff was suffering from the “enigmatic” Fong’s disease. With this set of medical facts, the administrative law judge could hardly be expected to be knowledgeable in making a conclu-sionary medical pronouncement on any sufferings of the plaintiff, as he did.

With due consideration of the fact that the burden is upon the plaintiff to satisfy the Secretary of the basic elements necessary for him to succeed in obtaining benefits, there was, however, sufficient evidence presented of a potentially valid claim by the plaintiff. So, too, the plaintiff’s subjective evidence presented many questions concerning his condition, which should have been considered by the administrative law judge. And even though the plaintiff was represented by counsel, we are still reminded of the admonishment of Congress that the statute is intended to produce remedial benefits and is to be construed in favor of coverage, rather than denial, if at all possible. Broussard v. Weinberger, 499 F.2d 969 (C.A.5, 1974); Denlo v. Celebreeze, 347 F.2d 159 (C.A.9, 1965); St. Luke’s Hospital Assoc. v. United States, 333 F.2d 157 (C.A.6, 1964).

The plaintiff testified throughout his evidence that he was suffering from severe pain in his spine and right hip; that he had problems with his knees and elbows; that the pain in his lower back and right hip was the result of injuries received in a fall in January, 1979; that he would stand, lie down or walk for limited periods of time; that he could drive his automobile for a half hour; that he took a variety of drugs, such as percodan, valium, tylenol, codeine, zomas, feldene, valmane and motrin; and that he had a limited amount of therapy with a traction machine and a whirlpool in his home.

This evidence sufficiently presented a claim before the administrative law judge, and it is sufficiently lined up with the hereditary disease, Fong’s Syndrome, which the administrative law judge found to be the affliction of the claimant. So, while there must be medical evidence of physical and mental impairment in order to establish a disability, disregard of a claimant’s subjective complaint of pain is not justified solely because of the inadequacy of medical experts to familiarize the administrative law judge with the seriousness of Fong’s Syndrome or disease. Northcutt v. Califano, 581 F.2d 164 (C.A.8, 1978).

And since the plaintiff was afflicted with Fong’s Syndrome, the fact that he fell down icy steps on January 9, 1979, after which time he suffered variously and was confined to Montefiore Hospital for lumbar disc syndrome, the injury received on January 9th was not very likely to have been the cause of Fong’s Syndrome. Yet the fall might have either awakened or aggravated it. This reasoning seems to be common sense; a knowing-medical expert, alone, can testify to its validity. This was lacking in this case.

So, too, there is lacking any knowing, medical expert evidence concerning the character, quantity and intensity of pain which this claimant may have suffered as such would affect his ability to perform gainful employment, as a sufferer of Fong’s disease. None of the doctors specifically explained the relationship of Fong's Syndrome with the plaintiff so as to show it as an impairment which is essential to the establishment of a disability as a medically determinable physical impairment which could be expected to result in death, or which has lasted or could be expected to last for a continuous period of not less than twelve months. Byrd v. Richardson, 362 F.Supp. 957 (D.C.S.C., 1973), and that the impairment caused an inability to engage in any substantial gainful employment.

Since the administrative law judge found the plaintiff suffered from Fong’s disease, it became the burden of the Secretary to show that it had no vitality in the case of the claimant, or was as it related to him, of such mild or ineffectual significance in its relationship to the claimant, as to be only partially rsponsible for his condition or inability to perform gainful employment.

“The administrative factfinder must give serious consideration to such evidence even though it is not fully corroborated by objective examinations and tests performed on the claimant”. Northcutt v. Califano, supra, 581 F.2d at 166. If the administrative law judge does not give proper evaluation to all the claimant’s evidence because of the lack of knowledge on the part of medical experts and thus produced an erroneous view of the law because it held that the claimant proved that the pain resulted as a direct consequence of his physical impact, then the claimant has not been given a full and fair hearing as required by law. Northcutt v. Califano, supra.

Here, the claimant establishes even if indirectly that he suffered from Fong’s Syndrome or disease, and that he is afflicted by bony spurs, or horns, or extrusions in various vital skeletal parts of his body which are necessary in action supporting human endeavors and has subjectively shown his sufferings and difficulty of performing activities necessarily required for gainful employment, and nexus has been established between Fong’s Syndrome or disease and the plaintiff’s condition.

Because of the anomaly that a condition such as Fong's Syndrome exists, and because there is evidence to the effect that the plaintiff was afflicted by it and gave abundant evidence of his pain, suffering and restricted abilities, it would appear that any judicial finding must necessarily rely upon the patient's history and his subjective complaints; and further, that the Secretary must give consideration to the subjective complaints even though they are not necessarily corroborated by objective findings. To fail to do so is error. Brand v. Secretary of Department of Health, etc., 623 F.2d 523, 526 (C.A.8, 1980).

Thus, the plaintiff has established a sufficient case for the consideration of the Secretary to grant compensation. But it still leaves many questions for consideration by the Secretary to ascertain now that she knows Fong’s Syndrome exists; that it is a hereditary disease; that it is a painful disease and that it may be progressive, and that all this can be a solid basis upon which her conclusion can and should rest in the case of the plaintiff.

The Secretary has a broad source upon which to base a determination in disability benefit cases and the determination must be based upon more than simple weighing of objective medical evidence. Subjective complaints and descriptions of symptomolo-gy must be considered and evaluated. Deyo v. Weinberger, 406 F.Supp. 968 (D.C.N.Y., 1975).

While it is not the function of this court to instruct the Secretary of Health and Human Services on how to perform her duties, the obligations of justice to which a court is bound require at least that it make helpful suggestions or directions where justice will be advanced.

Accordingly, the report and recommendation of the magistrate will not be accepted, and this matter will be remanded to the Secretary of Health and Human Services for the purpose of further inquiry into both the subjective and objective aspects of the plaintiff’s condition; and further, to ascertain what the plaintiff’s condition is and of his capability to perform gainful employment.

ORDER OF COURT

AND NOW, TO-WIT, this 30th day of April 1985, for the reasons set forth in the foregoing Opinion, this matter is hereby remanded to the Secretary of Health and Human Services for further inquiry into the subjective and objective aspects of the plaintiff’s condition, to ascertain what the plaintiff’s condition is and the attributable cause and the capability of the plaintiff in performing gainful employment.

      . (a) Sedentary work. "Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools ... a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.”

      . But the record does not have the "revelations of the Montefiore x-ray dept.”, or of the St. Francis Hospital myelogram, both of which suggested "Fong’s disease”.

      . Doctors mentioned Fong's disease nine times in the record. Presumably, all related to the Montefiore Hospital as reference. It would have served justice better to have made that a part of the record.