The Hearing Examiner also mistakenly attributed an adverse significance to statements of the examining psychiatrist that claimant's "motivation to improve his current level of function or to improve his conditions in life remain rather poor," and that Boyd "won't change much, his motivation to improve himself is certainly not great and I think he will continue to rely on other people for help, care and assistance." This is like the situation in Lippert v. Ribicoff, 215 F. Supp. 28 (N.D.Calif. 1963), where the Examiner put reliance on a medical report, which included the statement that the claimant's " lack of motivation will probably interfere with his performing adequately in any position in which he is placed," to support a finding of no disability. This was condemned by the court, which declared that
Dr. Yocun's report we have already discussed, with its only recommendation of "psychotherapy and perhaps vocational rehabilitation in the form of physical therapy to regain his confidence in himself and his capacity to work." With regard to Dr. Yocun's evaluation, upon which the Government relies so greatly, we turn to Lippert v. Ribicoff, D.C., 215 F. Supp. 28, 29, in which the court, in referring to a similar situation, said: "The Examiner quoted from Dr. Pope's Report the internist's opinion that it is difficult to evaluate plaintiff `* * * because one sees men with no more disability than this man presents but with proper motivation performing very adequately.' * * * Dr. Pope concludes: `I'm afraid his lack of motivation will probably interfere with his performing adequately in any position in which he is placed.' * * * The Examiner apparently relied on these statements to support a finding of no disability.
In such an affliction, it is held that lack of such motivation to work is, in itself, one of the symptoms of the disorder from which appellant admittedly suffers. Thus, in Lippert v. Ribicoff, D.C., 215 F. Supp. 28, 34, the court had occasion to pass upon a similar question and said: "The interdependent relationship of plaintiff's ailments and the totality of their effect upon plaintiff's physical and mental capabilities to perform any substantial activity, though misused by the Examiner, was recognized by the doctors retained by the Secretary.
Poore v. Mathews, 419 F. Supp. 142 (D.Neb. 1976). Plaintiff cites Ber v. Celebrezze, 332 F.2d 293 (2d Cir. 1964), Ratliff v. Celebrezze, 338 F.2d 978 (6th Cir. 1964), Varnado v. Flemming, 295 F.2d 693 (5th Cir. 1961), Henninger v. Celebrezze, 349 F.2d 808 (6th Cir. 1965), Celebrezze v. Warren, 339 F.2d 833 (10th Cir. 1964), Lippert v. Ribicoff, 215 F. Supp. 28 (N.D.Cal. 1963), Bowen v. Celebrezze, 250 F. Supp. 46 (W.D.La. 1963), Randall v. Flemming, 192 F. Supp. 111 (W.D.Mich. 1961), Lightcap v. Celebrezze, 214 F. Supp. 209 (W.D.Pa. 1962), and Clemochefsky v. Celebrezze, 222 F. Supp. 73 (M.D.Pa. 1963), as bases for my overturning the Secretary's decision and allowing plaintiff a period of disability and disability benefits.
This Court would have no hesitancy in accepting the diagnosis of a conversion reaction and making it the basis of awarding benefits were we not convinced from our examination of the entire record that plaintiff's condition is more self-induced than real. We are fully cognizant of the reluctance of some courts to base a denial of benefits upon the claimant's lack of motivation, Lippert v. Ribicoff, 215 F. Supp. 28 (N.D. Calif. 1963), and of the teachings of Carico v. Gardner, 377 F.2d 259 (4th Cir. 1967) that the questions of motivation, or the lack of it, cannot be simply regarded. Yet, when a court of review is called upon to reverse the fact finder, where motivation and credibility are important factors, as they are here, it would seem that by analogy the standard prescribed by Rule 52(a), Fed. Rules Civ.Proc., 28 U.S.C.A., should be accorded appropriate consideration. Under this rule, the court's findings of fact are not to be set aside unless clearly erroneous, and due regard must be given by the reviewing authority to the opportunity which the trial court had to see and observe the witnesses and judge their credibility.
Yet, without any factual foundation whatever, the remand hearing examiner suggests that plaintiff's difficulty is subject to the explanation that he simply lacks motivation; a matter over which the hearing examiner obviously assumes the plaintiff has control. The remand hearing examiner would not have attempted to rationalize his decision on the basis of "motivation" if he had understood the teaching of Lippert v. Ribicoff, N.D.Cal. 1963, 215 F. Supp. 28. The hearing examiner in that case attempted to deny liability on the basis of an internist's suggestion that "one sees men with no more disability than this man presents but with proper motivation performing very adequately." Judge MacBride noted and held that:
Bridges v. Gardner, 368 F.2d 86 (5th Cir. 1966) (opinion released November 3); Gardner v. Smith, 368 F.2d 77 (5th Cir. 1966). More especially, on the point of whether the activities of plaintiff as shown by this record constitute 'substantial gainful activity' within the meaning of the statute, see Ellerman v. Flemming, 188 F.Supp. 521 (D.C.Mo.1960) and Lippert v. Ribicoff, 215 F.Supp. 28 (D.C.Cal.1963). It seems clear to this court that the word 'substantial' as used in the statute, does not modify 'gainful' (although plaintiff gains little by his minimal work here), but rather it modifies 'activity'.
There is ample authority for the court to hold that the Secretary has, in a case such as this, failed in his proof and that plaintiff should have judgment authorizing an award of disability payments. Moke v. Celebrezze (D.Cal. 1964), 236 F. Supp. 174; Parfenuk v. Flemming (D. Mass. 1960), 182 F. Supp. 532; Lippert v. Ribicoff (D.Cal. 1963), 215 F. Supp. 28. However, hardship and other equitable factors seem to pervade the determination of the cases refusing to remand to permit the Secretary to augment the record.
Brown v. Celebrezze (E.D.S.C.1962) 210 F.Supp. 692, 694, quoting from Klimaszewski v. Flemming, D.C., 176 F.Supp. 927. See also, Lippert v. Ribicoff (D.C.Cal., 1963) 215 F.Supp. 28. The evidence shows plaintiff's subjective symptoms of pain in the left lower lumbar region which sometimes puts him to bed, his leg hurts him continuously and walking makes him dizzy and if he walks two blocks he has to rest because his legs have a 'tired feeling', he falls because his head 'swims' and he has shortness of breath and swelling of the ankles.
"`The act is concerned not with a standard man of ordinary and customary abilities, but with the particular person who may claim its benefits and the effect of the impairment upon that person, with whatever abilities or inabilities he has.'" Brown v. Celebrezze, (E.D.S.C., 1962) 210 F. Supp. 692, 694, quoting from Klimaszewski v. Flemming, D.C., 176 F. Supp. 927; Lippert v. Ribicoff, (D.C.Cal., 1963) 215 F. Supp. 28. After a careful examination of the record in this case and the foregoing authorities, I am of the opinion that the final decision of the Secretary is not supported by substantial evidence and is clearly erroneous.