Allen v. Schweiker

• Decision Date: 15 April 1981
• Docket Number: No. 80-5312,80-5312
• Citation: 642 F.2d 799
• Parties: Joey B. ALLEN, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant- Appellee. Summary Calendar. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 799

642 F.2d 799

Joey B. ALLEN, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant- Appellee.

No. 80-5312

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit B

April 15, 1981.

R. A. Culbertson, Greater Orlando Area Legal Services, Inc., Orlando, Fla., for plaintiff-appellant.

Wilbur V. Chaney, Asst. U. S. Atty., Orlando, Fla., for defendant-appellee.

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

Before RONEY, TJOFLAT and VANCE, Circuit Judges.

PER CURIAM:

Joey Allen appeals from the denial by the Secretary of Health and Human Resources of his application for disability benefits and supplemental security income under the Social Security Act, 42 U.S.C.A. §§ 423(a); 1381a. The district court affirmed the denial. Allen challenges the legal standard followed and findings of fact made by the administrative law judge, as well as the district court's denial of his motion to remand in light of new evidence. Finding no reversible error and the Secretary's decision to be supported by substantial evidence, we affirm.

Allen is a middle-aged male with a ninth grade education. He has been employed variously as a horse trainer, railroad freight conductor, carpenter, carpenter's helper, and laborer. He was last employed in 1976 as a construction laborer.

On November 18, 1976, Allen applied for disability benefits and supplemental security income, alleging a disability based on pain in and behind his eyes causing him to go unconscious several times a day. After a hearing, an administrative law judge denied the application on the ground Allen was not disabled within the meaning of the Social Security Act, 42 U.S.C.A. § 423(d). This denial was approved by the Appeals Council, thereby making it the final decision of the Secretary. The district court affirmed.

The findings and decision of the Secretary are conclusive if supported by substantial evidence. 42 U.S.C.A. § 405(g). The reviewing court thus has a very limited role, and may not decide the facts anew or substitute its judgment for that of the Secretary. See, e. g., Goodley v. Harris, 608 F.2d 234 (5th Cir. 1979); Simmons v. Harris, 602 F.2d 1233 (5th Cir. 1979).

In this case, there is substantial evidence to support the Secretary's decision. Medical reports by doctors who had examined Allen between 1974 and 1977 were introduced, including those of two neurologists, two psychiatrists, an ophthamologist, and a specialist in internal medicine and cardiology. As Allen concedes, none of these doctors found any physical or mental impairment which could conceivably cause his alleged pain, although both psychiatrists found Allen suffered from a mild "personality disorder." The ophthamologist and one of the neurologists specifically concluded they believed Allen was capable of working. In addition, a vocational specialist testified that Allen, given his age, education, work experience, mental condition, and complaints of pain, could perform a number of jobs, including his former employment as a laborer.

The only contrary evidence offered was testimony by Allen himself and by his former wife as to his "blackouts" and feelings of pain. Although the administrative law judge did not specifically evaluate the testimony of the ex-wife, he noted that Allen, a "difficult" witness, could not be given a high degree of credibility. After a review of the transcript, we cannot say the judge erred in discounting Allen's testimony. An administrative law judge may properly challenge the credibility of a claimant who asserts he is disabled by pain. See Simmons v. Harris, supra, 602 F.2d at 1236; Gaultney v. Weinberger, 505 F.2d 943, 946 (5th Cir. 1974). In any event, the resolution of conflicting evidence is for the Secretary and the administrative law judge, rather than for this Court. See, e. g., Grant v. Richardson, 445 F.2d 656 (5th Cir. 1971); Celebrezze v. Maxwell, 315 F.2d 727 (5th Cir. 1963).

Allen, however, asserts three grounds of error. He first contends the administrative law judge applied an improper legal standard by basing the denial solely on the lack of objective medical evidence and by disregarding his subjective symptoms of pain. He correctly argues that symptoms which are real to the claimant, although unaccompanied by objective medical data, may support a claim for disability. See, e. g., DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972); Page v. Celebrezze, 311 F.2d 757 (5th Cir. 1963). A review of the opinion of the administrative law judge, however, indicates the judge did consider Allen's symptomology. The judge stated only that "(i)n weighing the evidence, I must take into consideration the fact that (Allen's) complaints have not been substantiated by any objective medical evidence" (emphasis supplied). The opinion clearly shows the judge based his decision not only on the lack of medical evidence but also on Allen's failure to prove through testimony he suffered from disabling pain.

Allen next asserts the administrative law judge failed to make adequate findings of fact, specifically with regard to whether he in fact had blackouts and feelings of pain, and whether his former wife was a credible witness. The ultimate findings of fact, however, adequately resolved these subordinate issues. The judge specifically found that Allen's testimony, the primary evidence...