Howell v. Schweiker

• Citation: 699 F.2d 524
• Decision Date: 03 March 1983
• Docket Number: No. 82-5217,82-5217
• Parties: Vincent HOWELL, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 524

699 F.2d 524

1 Soc.Sec.Rep.Ser. 180

Vincent HOWELL, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee.

No. 82-5217

United States Court of Appeals Eleventh Circuit.

March 3, 1983.

Robert J. Willis, Florida Rural Legal Services, Inc., Cynthia A. Metzler, Bartow, Fla., for plaintiff-appellant.

Elyse Sharfman, D.H.H.S., Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY, VANCE and ANDERSON, Circuit Judges.

RONEY, Circuit Judge:

In this social security disability case, the claimant, Vincent Howell, appeals from a district court order remanding the case to the Secretary of Health and Human Services to determine whether Howell can perform substantial gainful activity other than his former work. Concluding that the order is not appealable, we dismiss.

While working as a fruit picker on June 20, 1978, Howell suffered a back injury when a sack of oranges fell on him causing him to fall from a ladder. The Secretary subsequently denied Howell any benefits, finding that he was not disabled within the meaning of section 223(d)(1)(A) of the Social Security Act, 42 U.S.C.A. Sec. 423(d)(1)(A). Howell filed suit in district court seeking review of the administrative determination pursuant to 42 U.S.C.A. Sec. 405(g).

Although the magistrate appointed by the court found insufficient evidence to support a finding that Howell was physically able to resume his work as a fruit picker, the agency had not determined whether he could perform other work. Upon a showing that a claimant cannot perform his old job, the burden shifts to the Secretary to demonstrate that the claimant is qualified based on his age, education and employment experience to perform other work available in the national economy. Johnson v. Harris, 612 F.2d 993, 997 (5th Cir.1980). On the recommendation of the magistrate, the district court remanded the case to the agency to determine whether Howell could engage in other available work. The district court, however, refused to accept the magistrate's recommendation that the Secretary be directed to employ a vocational expert in making this determination.

On appeal, Howell challenges the district court's ruling in two respects. First, he asserts the court should have ordered the Secretary to award him benefits rather than remand for more proceedings. Second, he argues that if a remand was warranted, the court should have required the Secretary to use a vocational expert.

The initial question is whether the district court's order of remand is appealable. To be appealable, an order of the district court must be final pursuant to 28 U.S.C.A. Sec. 1291 or it must fall into a series of specific classes of interlocutory orders pursuant to 28 U.S.C.A. Sec. 1292. Appellant argues only Sec. 1291 jurisdiction. The district court's decision in this case, however, did not end the litigation. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978); Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). On remand, the Secretary may deny or grant benefits in light of the district court's decision. The issue will be whether he can satisfy his burden to show that Howell could have engaged in other substantial gainful employment.

Howell relies on the Cohen exception, arguing that if he cannot now appeal the district court's decision, he will never be able to challenge the propriety of remanding, rather than ordering the Secretary to grant the benefits based on the present record. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). In effect, Howell asks us to foreclose the Secretary from meeting a burden which did not arise until the district court's decision. This is not a case where the district court issued a ruling that will control the outcome of the litigation.

Howell cites a few cases in which this Court held reviewable, on the Secretary's appeal, district court orders remanding to the Secretary for further proceedings. Gold v. Weinberger, 473 F.2d 1376, 1378 (5th Cir.1973); Cohen v. Perales, 412 F.2d 44, 48-49 (5th Cir.1969), rev'd on other grounds sub nom., Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). In both Perales and Gold, however, the Court stressed that the district court had not only remanded the case, but also had made an evidentiary ruling adverse to the Secretary. As the Court noted, if the Secretary could not then appeal the decision, he might never be able to challenge the evidentiary ruling.

That is not the case here. The district court refused to direct the Secretary to employ a vocational expert. Instead the court noted that recently promulgated regulations permit the agency to forego vocational testimony in favor of vocational tables developed by the agency to determine easily whether alternative work is available that the claimant can perform. 20 C.F.R. Part 404, Subpart P, Appendix 2, Secs. 200.00-204.00 (1982). Based on the claimant's age, employment experience, education and residual functional capacity, the tables state whether the claimant is entitled to benefits. In effect, the Social Security Administration takes administrative notice of the available jobs. Id. Sec. 200.00(b). The district court concluded that the agency can legally rely on the tables as long as it makes specific findings supported by substantial evidence as to Howell's qualifications and capabilities, and articulates any jobs it determines Howell can perform. See generally Broz v. Schweiker, 677 F.2d 1351 (11th Cir.1982), petition for cert. filed, 51 U.S.L.W. 3394 (U.S. Nov. 23, 1982) (No. 82-816); Salinas v. Schweiker, 662 F.2d 345 (5th Cir.1981). If the Secretary denies Howell benefits without sufficient evidence or with improper evidence, the claimant may obtain review in subsequent appellate proceedings. 11 U.S.C.A. Sec. 405(g). Any legal ruling made in the present order can be reviewed effectively after the remand. In any event, the Secretary may decide on remand to rely on a vocational expert rather than to apply the vocational tables, and thereby eliminate one of the issues Howell wants us to decide.

This Court has previously refused on jurisdictional grounds to entertain the Secretary's appeal from a district court decision to remand to the Secretary for a determination as to whether alternative work was available which the claimant could perform. Tookes v. Harris, 614 F.2d 1296 (5th Cir.1980) (Unpublished opinion attached as Appendix). We cite Tookes only because we have been unable to find a published opinion directly on point. We of course are bound by Fifth Circuit opinions rendered

                before October 1, 1981, Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), even unpublished ones.   See United States v. Ellis, 547 F.2d 863, 868 (5th Cir.1977) (decision without published opinion is binding precedent).  As in this case, the district court in Tookes had determined that substantial evidence did not support the Secretary's finding that the claimant could return to his old job and that the agency should decide whether the claimant could perform available alternative work.  This Court's conclusion that it lacked jurisdiction to hear the appeal is controlling here.   See also Barfield v. Weinberger, 485 F.2d 696, 698 (5th Cir.1973) (holding nonjurisdictional an appeal from a district court order remanding to Secretary to determine if hearing afforded claimant satisfied Supreme Court requirements)
                

APPEAL DISMISSED.

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________

No. 79-3340

Summary Calendar ^*

__________

CHARLIE C. TOOKES,

Plaintiff-Appellee,

versus

PATRICIA ROBERTS HARRIS, Secretary of Health and Human Resources,

Defendant-Appellant.

__________

Appeal from the United States District Court for the Middle

District of Georgia

__________

(MARCH 25, 1980)

Before AINSWORTH, FAY and RANDALL, Circuit Judges.

PER CURIAM:

The Secretary of the Department of Health, Education and Welfare (HEW) appeals the district court's order remanding to the administrative law judge (ALJ) Mr. Charlie Tookes claim for disability benefits. We dismiss the appeal.

Charlie C. Tookes is a fifty-nine year old man with a fourth grade education. Mr. Tookes, without benefit of counsel, filed an application for disability benefits because of his heart trouble, high blood pressure, and diabetes. ¹ The Social Security Administration denied the application initially and on reconsideration. After a hearing de novo the ALJ determined that Tookes was not under a disability. The HEW Appeals Council affirmed that decision, which then became final. Disability as defined in section 223 of the Social Security Act means:

inability to engage in 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.

42 U.S.C. Sec. 223 (1976). The ALJ concluded that Tookes retained the residual functional capacity to perform a wide range of activities consistent with his occupational background. The ALJ also found that Tookes failed to establish a medically determinable impairment or combination of impairments of a severity which precluded him from engaging in any substantial gainful activity for a continuous period of twelve months.

The district court acknowledged that its role was limited to determining whether substantial evidence on the record as a whole existed to support the Secretary's decision. 42 U.S.C. Sec. 405(g) (1976). The court concluded, however, that the record before it was insufficient for a finding that substantial evidence supported the ALJ. The court therefore remanded the case to the ALJ "to determine whether...