OPINION OF THE COURT
VAN DUSEN, Senior Circuit Judge.
In this appeal, Mamie Lewis challenges the district court's grant of summary judgment for defendant, including its holding that her religious beliefs do not qualify as good cause for her decision to decline remedial surgery under 20 C.F.R. § 404.1507 (1977), and the conclusion of the Department of Health, Education and Welfare (HEW) that she is not disabled within the meaning of 42 U.S.C. §§ 416(i)(1) and 423(d) (1976)
Lewis (claimant) is 55 years old. She worked as a clerk-typist for the Common-wealth of Pennsylvania from 1955 until 1967, when she left work due to back problems. From 1969 until February 1977 she was employed as a cafeteria assistant for the Harrisburg School District, working approximately 2½ hours per day preparing frozen lunches and cleaning up after lunch.
The medical evidence examined by the ALJ consisted of medical reports from several doctors. These reports indicated that claimant has had a massive uterine tumor since 1967. A 1974 medical report noted that claimant had difficulty moving and breathing because of the pressure created by the tumor. An April 27, 1977, letter of Dr. Charles Delone stated that the tumor was larger than a full-term fetus. A July 14, 1977, report of Dr. S. Clayton, who works for the Dauphin County Board of Assistance and saw claimant at the request of the welfare authorities, concluded that claimant could not work as a result of her condition.
Claimant testified at the hearing that she had substantial pain, weakness and shortness of breath (Ap. 31-33). Claimant also testified concerning her daily routine to the effect that she became exhausted doing light housework and had reduced her participation in church events, although she was still in the choir.
Claimant had been repeatedly advised by her doctors that the tumor could be surgically removed and that she would be cured if she underwent a hysterectomy. The ALJ found that the condition was remediable with surgery.
Claimant has consistently refused to undergo such surgery due to her religious belief in faith healing. Claimant is a devout member of the Church of God. Her minister accompanied her to the hearing before the ALJ and testified concerning the Church's tenets and Lewis' beliefs. The minister explained that the Church had no tenet against resorting to surgery, but that he was willing to pray with claimant to achieve her cure. The minister stated that he supported her decision to rely on divine healing. Claimant testified that she believed in divine healing because she had been relieved of a back ailment in 1967 without the aid of medical science. She attributed this cure to the power of prayer. The ALJ stated that "[t]he claimant indicated at the hearing that she is reluctant to undergo surgery as a result of her religious beliefs." Although defendant does not challenge her religious belief as the cause of claimant's refusal of surgery for a condition "remediable with surgery," neither the ALJ nor the Appeals Council made a specific finding that claimant was sincere in her stated religious objection to surgery on her abdomen (Ap. 14-15).
The ALJ also noted claimant's physical appearance as part of the evidence available for determining disability. The ALJ stated that "[a]t the hearing she appeared to be healthy and answered the questions clearly and intelligently. She was a soft-spoken, very pleasant woman who did not appear to be disabled." This was the final piece of evidence noted by the ALJ.
After reviewing the evidence, the ALJ concluded that the claimant was not disabled. The ALJ stated that:
The ALJ's opinion was adopted by the Secretary.
The claimant appeals on the basis of lack of evidence to support this finding of non-disability by the Secretary and argues that, if we conclude that claimant is disabled, we must award her benefits because her religious belief in faith healing is justifiable cause for refusing to accept remedial surgery under the regulations to § 423, which deny disability benefits to claimants who willfully refuse to undergo remedial care to cure their disability, unless the claimant can show "justifiable cause" for such refusal. 20 C.F.R. § 404.1507 (1977).
In reviewing the Secretary's finding of disability we are mindful that any findings of fact by the Secretary must be accepted as conclusive by a reviewing court "if supported by substantial evidence." 42 U.S.C. § 405(g) (1976). "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir.1979).
In this case, claimant offered substantial evidence concerning the details of her ailment. Most importantly she submitted the report of Dr. Clayton, who was hired by the Dauphin County Board of Assistance to determine whether claimant was disabled in regard to her obtaining welfare benefits. Dr. Clayton found that claimant "cannot work." This doctor made the finding for another government agency, and his finding is entitled to substantial weight. Clearly, from this evidence, claimant has carried her initial burden to prove disability.
The burden now shifts to the Secretary to prove non-disability. The ALJ offers no explanation why he rejected Dr. Clayton's finding or claimant's subjective complaints concerning her health. The ALJ's review of the evidence demonstrates only two factors which might serve to justify his conclusion. First, after describing petitioner's daily routine, he concludes that "[h]er ability to get around and function normally appears to be generally unimpeded." In view of the fact that claimant has difficulty moving and breathing,
The second piece of evidence noted which might support the ALJ's ultimate conclusion is his statement concerning her appearance. He stated that "[a]t the hearing she appeared to be healthy and answered the questions clearly and intelligently. She was a soft-spoken very pleasant woman who did not appear to be disabled." Although physical appearance may be a factor to consider, the ALJ could not determine from claimant's appearance alone that she was not disabled by her tumor. See Williams v. Finch, 440 F.2d 613 (5th Cir.1971). The ALJ rejected a professional medical opinion on the basis of his own observation. As we noted in Gober v. Matthews, 574 F.2d 772, 777 (3d Cir. 1978), an ALJ "is not free to set his own expertise against that of a
Quite simply, the ALJ had no evidence to rebut the claimant's prima facie case based on the medical evidence, and the Secretary should have determined that the claimant was disabled.
WILLFUL REJECTION OF MEDICAL TREATMENT ON RELIGIOUS GROUNDS
Having determined that claimant is disabled on this record, we address the question of whether claimant's religious objections to surgery justify her decision willfully to refuse treatment to correct a remediable condition, since it was raised by counsel in the district court and in this court. Although the ALJ never reached this question as a basis for his decision
The issue raised by counsel is whether claimant's religious belief is a "justifiable cause" for declining surgery.
The leading case in determining whether a person may obtain benefits under a government program, despite refusal for religious reasons to comply with a condition to the entitlement, is Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). In Sherbert the Court held that the free exercise clause of the First Amendment
In arriving at its conclusion, the Court weighed the governmental interests against the claimant's First Amendment interests in the free exercise of her religion. The government had two interests. The first interest was to reduce the payments made out of the unemployment compensation funds.
We note that the Court specifically stated in Sherbert, supra, that it was not deciding a case such as this where claimant's religious convictions make her "a nonproductive member of society," using this language at page 410, 83 S.Ct. at page 1797:
(See note 9.)
The Sherbert opinion was concluded with this sentence at page 410 of 374 U.S., at page 1797 of 83 S.Ct.:
The Social Security Administration has previously considered the effect of Sherbert upon the denial of disability benefits under 20 C.F.R. § 404.1507 of the regulations. In SSR 67-61, C.B. 1967, p. 118, the Administration held that Sherbert required the Secretary to award disability benefits to a Christian Scientist who was disabled by cataracts, which were curable, because his religious belief required him to forego surgery. After quoting the holding of Sherbert, the ruling stated:
Thus the agency itself has apparently determined that in disability cases the balance between the government's financial interest and the individual's religious interest in declining surgery must be decided in favor of the individual's First Amendment religious rights. See also Montgomery v. Board of Retirement, 33 Cal.App.3d 447, 109 Cal.Rptr. 181 (1973).
We need not determine whether the agency's interpretation of Sherbert on disability cases is in fact correct, because the Social Security Administration's ruling implicates the establishment clause of the First Amendment. The establishment clause requires the government to extend the same benefits it currently extends to Christian Scientists under the regulations to all individuals who sincerely believe in faith healing. The Supreme Court has held that: "The `establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which . . . prefer one religion
The government attempts to distinguish the ruling from the case at bar by noting that faith healing is not a tenet of claimant's church, the Church of God. The import of the Secretary's argument is that an individual's belief which is not a tenet of the church in which she worships is not a belief protected by the First Amendment and thus denial of benefits to claimant would not violate the establishment clause. This presents the question of whether an individual's belief, not adopted by, but consistent with the views of, his sect, is a religious belief protected by the First Amendment.
The Supreme Court has noted the importance of accommodating individual beliefs. In Davis v. Beason, 133 U.S. 333, 342, 10 S.Ct. 299, 300, 33 L.Ed. 637 (1890), the Court defined religion and spoke of the Amendment's concern for individuals:
Similarly, in United States v. Ballard, 322 U.S. 78, 87, 64 S.Ct. 882, 886, 88 L.Ed. 1148 (1944), where the Court recognized an individual's claim that he was a divine messenger of God as a possible religious belief, the Court stated that the framers of the Constitution and the Bill of Rights
In sum, we believe that the decisions of the Supreme Court of the United States adopt the view that an individual's sincere religious belief which is not a tenet of her sect is a belief protected by the First Amendment.
In the case at bar, the claimant may have been denied benefits due to her adherence to her religious beliefs. As the Secretary has held that the religious beliefs of Christian Scientists constitute "justifiable cause" for willfully declining to obtain medical treatment to cure remediable ailments, the establishment clause requires that the same protection must be afforded claimant if her religious beliefs are sincere.
In view of the state of the record, where there has been no explicit finding or conclusion on the sincerity of claimant's religious belief in faith or divine healing requiring her to refuse surgery on her abdomen (see note 13), we will vacate the district court order granting summary judgment for defendant, and remand the case to that court for entry of an order remanding the case to the Secretary of Health, Education and Welfare for further evaluation and consideration, in light of this opinion, of the disability of plaintiff under 42 U.S.C.A. § 423(d) and 20 C.F.R. § 404.1507 (1977).
ALDISERT, Circuit Judge, dissenting.
My difference with the majority tracks a narrow compass. I do not disagree with their exposition of appropriate Supreme Court teachings relating to first amendment religious beliefs. I differ with their application of these precepts to the record
I would not remand for an additional hearing because although the litigant was entitled to a day in court, she is not entitled to a return visit to repair her inept factual presentation. That she presented her first amendment contention at the hearing cannot be gainsaid. That the ALJ summarized her position cannot be denied: "The claimant is reluctant to undergo surgery as a result of her religious beliefs." App. at 14. I see no reason to give this litigant a second chance to prove her case.
My reading of the record convinces me that claimant failed in her burden to demonstrate that her refusal to submit to surgery was based on strongly held religious beliefs as discussed in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); United States v. Ballard, 322 U.S. 78, 87, 64 S.Ct. 882, 886, 88 L.Ed. 1148 (1944); and Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890). Although the majority opinion deems Sherbert v. Verner controlling, it neglects the Court's important observation that "[n]o question has been raised in this case concerning the sincerity of appellant's religious beliefs." 374 U.S. at 399 n.1, 83 S.Ct. at 1791 n.1.
The record in this case shows that claimant failed to meet the burden of proving that her aversion to surgery rests on sincere religious beliefs. There is, for example, the testimony of claimant's minister, Reverend James Jackson, that the teachings of her particular church do not proscribe surgical procedures:
App. at 36. As the majority note, Maj. Op., at 79 n.12, the tenets of the sect are relevant as evidence of Mrs. Lewis' sincerity. More persuasive, however, is the claimant's own testimony. She testified that she is a member of Reverend Jackson's church, a congregation of the Church of God, App. at 35, and that she had previously submitted to gynecological surgery in 1960. Indeed, she had undergone a dilatation and curettage (D and C) procedure, one of the very procedures recommended to alleviate her present condition. See App. at 12. When specifically asked, on two separate occasions by her own counsel, if submitting to surgery would interfere with her religious beliefs, she answered "No":
App. at 49-50. Her counsel subsequently returned to this question, slightly rephrased, hoping for a more favorable answer:
Id. at 51. These statements tend to show that Mrs. Lewis' decision to forego surgery was not based on a conflict between her religion and conventional medical practice.
Id., § 423(d)(2)(A).
There is nothing in this record to indicate that only one other person, in addition to appellant, will be drawing federal social security benefits because of the religious belief controlling the action of claimant in this case. If the defendant finds the burden of paying the disability benefit funds to those non-Christian Scientists and non-California Church of God members (see Montgomery case, cited below), who adhere to a belief in faith healing of the type of this plaintiff, is sufficiently great, it will have the opportunity to vacate its ruling SSR 67-61, C.B. 1967, p. 118, cited below, holding that Christian Scientists are entitled to disability benefits even though their beliefs may make them nonproductive members of society.
We note that there is evidence upon the record which could support a finding of sincerity in the testimony of both claimant and her minister. Claimant testified on questioning by the ALJ, inter alia, as follows:
Claimant's minister testified on questioning by the ALJ, inter alia, as follows:
Subsequently he testified as follows:
Claimant's answers to the ambiguous questions cited by the dissent do not seem to us to require a finding of insincerity. The hearing transcript shows that the claimant repeatedly asserted religious beliefs for refusing surgery and that the hypothetical questions posed to her were difficult for her to comprehend, and gave rise to some confused answers, upon which the dissent relies. In context, those statements do not detract from the contention that claimant was motivated by religious beliefs.
We note that the surgery performed in 1960, referred to in the dissenting opinion, was seven years before claimant's "miracle healing" in 1967 which led to her 1978 testimony quoted above, and that the magistrate's report expressly does not challenge the sincerity of claimant's "personal religious belief." (15a).
The ALJ simply never addressed the question of sincerity, and in light of the evidence outlined above, we cannot agree with the dissent's assertion that claimant has failed to sustain her burden of proof as a matter of law concerning the sincerity of her belief. This is a matter for the ALJ, as the finder of fact, subject to the Appeals Council, to determine.