least one dispositive factual issue: the plaintiff's educational level. This deficiency makes it impossible for the Court to determine if the Secretary's findings are supported by "substantial evidence."
To promote uniformity of results, the Department of Health and Human Services has promulgated regulations that dictate the determinations of the ALJ on the ultimate question of disability. These regulations are presented in the form of grids on which are arranged the factors the statute makes relevant to determinations of disability.
Once he or she has made the necessary factual findings, the ALJ turns to the appropriate grid. (In this case it is that of Appendix 2, Table 1 listed in 20 C.F.R., Subpart P.) The actual process of reaching a conclusion on the question of disability is purely mechanical. The ALJ "literally reads off from the pertinent row in the table the conclusion that the applicant is or is not disabled." Cummins v. Schweiker, 670 F.2d 81, 82 (7th Cir. 1982).
As noted above, one of the determinative factors is Mr. Bailey's educational level. The plaintiff alleges that the ALJ incorrectly determined his educational level and consequently incorrectly determined that the plaintiff was "not disabled." Specifically, Mr. Bailey claims that the ALJ erred in finding that he had a "limited education"
which, in turn, required the ALJ to apply Rule 201.18 of Table 1 which resulted in finding the plaintiff not disabled. The plaintiff claims that the facts mandate a finding that he is "illiterate"
which would require that the ALJ apply Rule 201.17 and result in a determination that he is disabled.
Obviously, the question of Mr. Bailey's educational level is dispositive. However, the hearing transcript is incomplete on this crucial point. (R. 34). Mr. Bailey's testimony concerning his ability to read and write was partly lost from the tape.
The ALJ's finding that Mr. Bailey has a "limited education" was, presumably based on Mr. Bailey's 11th grade education. But, the regulations explicitly state that "the numerical grade level completed may not represent [a claimant's] actual educational abilities" and, that other evidence may be introduced to prove that the actual level is higher or lower. 20 C.F.R. § 404.1564 (b); Corrie v. Schweiker, No. 81-C 771 (N.D. Ill. March 8, 1982) (the court reversed the ALJ's finding that the plaintiff has a "limited education" which was made on the basis of his seventh grade education and conflicted with evidence the plaintiff could neither read nor write).
Here, the surviving portions of Mr. Bailey's testimony indicate that he may well be illiterate as that term is defined
for purposes of this case.
The transcript contains uncontradicted testimony that Mr. Bailey can neither read nor understand a newspaper. (R. 34). Even if Mr. Bailey is able to read at an elementary level, a finding he is illiterate would not be precluded. See Olsen v. Schweiker, 703 F.2d 751, 756 (3d Cir. 1983) (dissenting opinion) (claimant deemed to be illiterate though he could read at the second grade level.)
Counsel for the defendant admits that the transcript is incomplete because portions of the tape were inaudible and therefore not transcribed. (Defendant's Memorandum In Opposition to Plaintiff's Motion to Remand, p. 3). Nevertheless, counsel urges that remand is unnecessary as "it is highly improbable that the inaudible portions . . . would change the sense of the answers properly recorded in the transcript." Id. Moreover, the inaudible testimony was heard by the ALJ who took it into consideration when reaching his decision. Id. at 4.
Whatever the probabilities, the absence of a complete record frustrates judicial review. The role of a reviewing court is to ensure that appropriate tests and standards are applied and maintained. The court is not to speculate as to whether certain information was or was not considered by the ALJ or whether lost testimony does or does not support his findings. Stewart v. Harris, 509 F. Supp. 31 (N.D. Cal. 1980). It does not matter if the record is merely incomplete, e.g., testimony lost because of a malfunctioning tape recorder, Stewart v. Harris, supra, or if the record of the hearing was lost altogether. Williams v. Secretary of HEW, 481 F. Supp. 69 (S.D.N.Y. 1979) (tape recording of the hearing totally inaudible). When the record is incomplete on a dispositive factual issue, there is an inadequate basis on which the court can review the Secretary's determination. Therefore, the appropriate remedy is remand.
In conclusion, the deficiency of the record makes it impossible to determine if the Administrative Law Judge's findings are supported by substantial evidence. Therefore, this case is remanded to the Secretary for the taking of additional evidence and reconsideration of the termination of benefits. The Court will enter an order in accordance with the foregoing of even date herewith.
For the reasons stated in the opinion of even date herewith, it is, by the Court this 6th day of January, 1984,
ORDERED, that this case shall be, and hereby is, remanded to the defendant for reevaluation by its Administrative Law Judge for the taking of additional evidence and reconsideration; and it is
FURTHER ORDERED, that the defendant's motion for judgment of affirmance and the plaintiff's motion for judgment of reversal are denied; and it is
FURTHER ORDERED, that pending a decision on the remand by the Secretary and its Administrative Law Judge, the case shall stand dismissed, without prejudice, on the docket of this Court.