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BAILEY v. HECKLER

January 6, 1984

GEORGE A. BAILEY, et. al., Plaintiffs,
v.
MARGARET M. HECKLER, Secretary of the Department Health and Human Services, Defendant



The opinion of the court was delivered by: RICHEY

 This action is brought under 42 U.S.C. ยง 405(g) to review the final decision of the Secretary of Health and Human Services terminating the plaintiff's disability benefits. Both parties have moved for judgment on the administrative record which the Court has considered along with their motions, memoranda of points and authorities, and their proposed findings of fact. For the reasons stated below, the Court remands this case for reconsideration by an Administrative Law Judge (ALJ).

 It is particularly helpful to discuss the facts of this case in detail.

 Mr. Bailey was born on April 30, 1933. He has an 11th grade education and worked as a laborer in the construction industry for over twenty-five years. (R. 152; 34-35). *fn1" Mr. Bailey injured his left foot while working in August, 1978, and on January 26, 1979, he injured his back while loading steel. As a result of this back injury, Mr. Bailey developed problems with his right knee. (R. at 137).

 In February, 1979, Mr. Bailey had surgery for his foot injury and was fitted with a lumbar corset to help relieve his back pains. Later that year plaintiff was fitted with a cane and in December his right knee was operated on.

 On March 26, 1979, Mr. Bailey applied for disability benefits. Initially his claim was denied, but, in a decision dated December 7, 1979, an ALJ awarded Mr. Bailey benefits as of January 26, 1979.

 In awarding benefits the ALJ determined that Mr. Bailey was unable to work because of, among other things, low back pain, damage to his left big toe which limited its capacity to bear weight or bend; torn ligaments in his right knee which often caused the knee to buckle; and severe left leg and foot pain which restricted his ability to stand or walk for extended periods. The ALJ noted that Mr. Bailey wore a back brace, used a cane, took medication to relieve pain, and had been under continuous medical management since January 1979. (R. at 137-38).

 During the period he received benefits, Mr. Bailey was examined regularly by physicians. All their reports agree that Mr. Bailey was not capable of returning to his previous work.

 In November 1981, Mr. Bailey was notified that as a result of improvement in his condition he would no longer be considered disabled. Accordingly, his benefits would stop as of that month. On appeal, this determination was modified by the Appeals Council which found that his disability had ended as of October 1981. Having exhausted his administrative remedies, Mr. Bailey filed this action. *fn2"

 Plaintiff's counsel makes several arguments in support of his motions for remand or reversal. Only one need be discussed.

 Plaintiff alleges that the sound quality of the tape recording of the hearing under review here was so poor that it was impossible to construct a complete, accurate transcript of those proceedings. The resultant gaps in the record make meaningful judicial review impossible. Therefore, plaintiff argues the appropriate remedy is remand for a hearing de novo so that an accurate record can be assembled.

 STANDARD OF REVIEW

 A district court performs a limited function when reviewing social security benefits cases. The court is not to reevaluate the evidence. Its role is only to determine whether or not the findings of the Secretary are supported by "substantial evidence." Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). To enable the reviewing court to make such determinations, the Secretary has the ...


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