Benitez v. Califano

• Decision Date: 20 April 1978
• Docket Number: No. 76-1766,76-1766
• Citation: 573 F.2d 653
• Parties: Raul BENITEZ, Plaintiff-Appellant, v. Joseph A. CALIFANO, Secretary of Health, Education & Welfare, United States of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 653

573 F.2d 653

Raul BENITEZ, Plaintiff-Appellant, v. Joseph A. CALIFANO, Secretary of Health, Education &amp Welfare, United States of America, Defendant-Appellee.

No. 76-1766.

United States Court of Appeals Ninth Circuit.

April 20, 1978.

Eugene G. Schuster, of Critchlow, Williams, Ryals & Schuster, Richland, Wash., for plaintiff-appellant.

Dean C. Smith, U. S. Atty., Spokane, Wash., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before CHAMBERS and KENNEDY, Circuit Judges, and JAMESON, ^* District Judge.

JAMESON, District Judge:

Raul Benitez has appealed from a judgment affirming the decision of the Secretary of Health, Education and Welfare denying appellant's claim for social security disability benefits. Following a hearing, an administrative law judge concluded that appellant was "not entitled to either a period of disability or disability insurance benefits under sections 216(i) and 223(a) respectively, of the Social Security Act, as amended". ¹ The Appeals Council affirmed the decision of the administrative law judge. This action followed. Both parties filed motions for summary judgment. The motion of the Secretary was granted. We reverse.

Appellant is a United States citizen of Mexican ancestry. He was born on September 28, 1935 in Texas and received a fourth grade education. Although he can read and write Spanish, he is functionally illiterate in English. He can speak and understand some English, but can neither read nor write it.

Prior to the onset of his physical impairment appellant's work consisted primarily of farm labor picking cotton and fruit, and driving farm equipment. He worked briefly as a gas station attendant and for a car dealer cleaning cars.

Appellant suffered back injuries on April 30, 1971, when he fell off a tractor. His injuries resulted in chronic lumbosacral strain which requires periodic therapeutic treatment. The examining doctors generally were in agreement that his back condition prevented appellant from engaging in any work which would require him to do any bending, stooping, or lifting. In the future he would only be able to do light, sedentary type work.

Findings of Administrative Law Judge

At the administrative hearing a vocational counselor testified that although there were light, sedentary jobs available in the market that would not involve bending, stooping, or lifting, appellant's lack of education and fluency with English would make it difficult for him to obtain those jobs. After considering the hearing testimony and documentary evidence regarding appellant's physical condition and the availability of jobs in the area, the judge found that appellant's "impairment consists of a low back condition which permits only light or sedentary work which does not require repeated stooping or bending" ² and that impairment had prevented appellant "from doing his previous work at all times since May of 1971". The judge found further that although his impairment "leaves him with a residual physical capacity to perform a significant number of jobs which exist in his region of the country", the appellant "is not able to perform said jobs which are within his residual physical capacity because of his restricted literacy and fluency with the English language".

At the hearing and in his decision the judge expressed concern about appellant's unusual status. In a Special Problem Note he discussed the "significant problem which prevents a finding that Applicant has the actual ability to perform the light and sedentary jobs (otherwise available in the region), i. e., the nature and level of Applicant's education". He concluded that "Applicant would not be able to be trained for most of the jobs referred to within a reasonable period of time . . . (and) his language restriction would probably prevent employment at anything but a manual labor job". Nevertheless, the judge concluded that appellant was not under a "disability", as that term is used in the Social Security Act, because his physical impairment was not the "primary reason for preventing him from engaging in any substantial gainful activity. . . . " His unemployability was due to "his lack of fluency and education in English".

Scope of Review

By statute the "findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). "It is not within our province to judge the credibility of witnesses before the Administrative Law Judge". Walker v. Mathews, 546 F.2d 814, 820 (9 Cir. 1976). In general, our task is limited to reviewing the judge's factual findings to decide whether they are supported by substantial evidence. Id. at 818. However, "(e)ven though the findings be supported by substantial evidence, the decision should be set aside if the proper legal standards were not applied in weighing the evidence and making the decision". Flake v. Gardner, 399 F.2d 532, 540 (9 Cir. 1968).

Provisions of Social Security Act

42 U.S.C. § 423(d)(1)(A) defines "disability" as "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which can be expected to last for a continuous period of not less than 12 months". § 423(d)(2)(A) provides that "an individual . . . shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . ."

This court, in Rosin v. Secretary of Health, Education and Welfare, 379 F.2d 189, 195 (9 Cir. 1967), summarized the applicable rules in determining whether a claimant is unable "to engage in any substantial gainful activity":

To satisfy the statutory requirement that a claimant be unable to engage in any substantial gainful activity, it is not necessary that he introduce evidence which negatives every imaginable job open to men with his impairment, age, experience and education. (citing cases.) All that is required of the claimant is that he be unable to do the type of work that he was formerly engaged in and demonstrates his lack of particular experience for any other type of work. (citing cases.) Once the claimant has demonstrated that he can no longer engage in his former occupation, it is incumbent on the Secretary to show that there are other types of work which the claimant is capable of doing. (citing cases.) Such proof must not be based on the claimant's mere theoretical ability to do some kind of work, but must be based on practical and realistic considerations, such as education, experience, emotional and physical condition and reasonable job opportunities available within the area in which claimant lived. (citing cases.)

Cases from other circuits are in accord with these principles. In Brinker v. Weinberger, 522 F.2d 13, 17-18 (8 Cir. 1975), the court recognized that the Social Security Act is remedial and "to be construed liberally", and to "establish that a claimant . . . has the ability to engage in any substantial gainful activity . . . it must be shown that the claimant can realistically perform in existing employment". In Ferran v. Flemming, 293 F.2d 568, 571-72 (5 Cir. 1961), the court stated that "to sustain a finding of no disability there must be some record showing that (the claimant) can actually engage in some reasonably available and substantial gainful activity". And in Torres v. Celebrezze, 349 F.2d 342, 344 (1 Cir. 1965), cited by this court in Rosin, supra, the court said, "It is of no value to a claimant to be physically capable to perform jobs which his age, education and experience prevent him from obtaining."

Applicable Regulation under Social Security Act

The Secretary on this appeal, as did the administrative law judge and district court, relies solely on 20 C.F.R. § 404.1502 in support of the contention that appellant failed to establish his entitlement to disability benefits because his physical impairment was not the primary reason for his inability to engage in "any substantial gainful activity". This regulation reads in pertinent part:

(b) Conditions which constitute neither a listed impairment nor the medical equivalent thereof likewise may be found disabling if they do, in fact, prevent the individual from engaging in any substantial gainful activity. Such an individual, however, shall be determined to be under a disability only if his physical or mental...