Bonilla v. Richardson, SA-71-CA-64.
| Decision Date | 20 March 1972 |
| Docket Number | No. SA-71-CA-64.,SA-71-CA-64. |
| Parties | Jesus C. BONILLA v. Elliot RICHARDSON, Secretary of Health, Education, and Welfare. |
| Court | U.S. District Court — Western District of Texas |
James R. Warncke, San Antonio, Tex., for plaintiff.
Hugh P. Shovlin, Asst. U. S. Atty., San Antonio, Tex., for defendant.
MEMORANDUM AND ORDER DETERMINING MOTIONS FOR SUMMARY JUDGMENT
This action is brought by plaintiff, Jesus C. Bonilla, against Elliot Richardson, Secretary of Health, Education, and Welfare, under the Social Security Act, § 205(g), 42 U.S.C. § 405(g) (1970), to review a final decision of the Secretary denying plaintiff's application for the establishment of a period of disability under § 216(i) of the Act, 42 U.S.C. § 416(i) (1970), and for disability insurance benefits under § 223 of the Act, 42 U.S.C. § 423 (1970). Plaintiff filed application for disability insurance benefits on July 28, 1969, alleging that he became unable to work on May 1, 1969, at age 37, because of "diabetic, back injury." (Tr. 74). His application was denied both initially and on reconsideration by the Bureau of Disability Insurance of the Social Security Administration after a Texas State Agency found that plaintiff was not under the necessary disability. (Tr. 78-88). Plaintiff thereafter requested an administrative hearing which was held on June 1, 1970, with plaintiff, his counsel, one witness, and a vocational expert in attendance. (Tr. 28-72). On September 16, 1970, the hearing examiner issued his opinion denying plaintiff's application. (Tr. 13-22). On December 1, 1970, the Appeals Council granted a rehearing and arranged for plaintiff to have a medical examination. (Tr. 11). After receipt of additional evidence, the Appeals Council affirmed the hearing examiner on February 22, 1971 (Tr. 4-10), and this decision became the final decision of the Secretary subject to judicial review. This action was filed February 26, 1971, and is presently before this Court on cross-motions for summary judgment.
The sole issue before this Court is whether there is substantial evidence in the record to support the Secretary's finding that plaintiff is not entitled to a period of disability or disability insurance benefits under the Act, and whether the Secretary applied the proper legal standards. 42 U.S.C. § 405(g) (1970); Williams v. Finch, 440 F.2d 613, 615 (5th Cir. 1971); Green v. Gardner, 391 F.2d 606, 607 (5th Cir. 1968). "Substantial evidence" is Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), quoting, Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938).
It is not this Court's function to try the case de novo, Alsobrooks v. Gardner, 357 F.2d 110 (5th Cir. 1966), rehearing denied, 394 F.2d 985 (5th Cir. 1968); nor to weigh the evidence, Brown v. Finch, 429 F.2d 80 (5th Cir. 1970); nor to resolve factual conflicts including contrary medical opinions of doctors, Hayes v. Celebrezze, supra, 311 F.2d 648 (5th Cir. 1963); nor to make credibility findings, Celebrezze v. Zimmerman, 339 F.2d 496 (5th Cir. 1964).
Pate v. Richardson, 330 F.Supp. 39, 40-41 (S.D.Tex.1971); accord, Jackson v. Richardson, 449 F.2d 1326 (5th Cir. 1971); Cross v. Finch, 427 F.2d 406 (5th Cir. 1970); Martin v. Finch, 415 F.2d 793 (5th Cir. 1969).
The applicant had the burden of proving the disability which would entitle him to social security benefits under the Act. Jenkins v. Gardner, 430 F.2d 243, 245-46 (6th Cir. 1970), cert. denied, 400 U.S. 1001, 91 S.Ct. 472, 27 L.Ed.2d 452 (1971); King v. Finch, 428 F.2d 709, 711 (5th Cir. 1970). The burden is a heavy one. Williams v. Finch, supra, at 615. Disabling impairments must be lengthy and of indefinite duration.1 Moreover, under the Act as amended in 1968, the applicant must show 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.2
42 U.S.C. § 423(d) (2) (1970), as amended emphasis supplied.
Courts have recognized that the burden on the applicant is so stringent that it borders on being unrealistic. Williams v. Finch, supra, at 615; see Floyd v. Finch, 441 F.2d 73, 76 (6th Cir. 1971) (McAlister, J., dissenting); Cooper v. Finch, 433 F.2d 315, 316 (5th Cir. 1970). Nevertheless, the standard is clear and the United States Supreme Court recently approved the Act as fair and workable. Richardson v. Perales, 402 U.S. 389, 410, 91 S.Ct. 1420, 28 L. Ed.2d 842 (1971). This is not to say that the Courts have abdicated their traditional judicial function of scrutinizing the record as a whole to determine the reasonableness of the Secretary's decision. Williams v. Finch, supra, at 615; see Jackson v. Richardson, 449 F.2d 1326 (5th Cir. 1971); Sharbino v. Richardson, 334 F.Supp. 107 (E.D.La.1971). This function necessitates an inquiry to establish whether the Secretary correctly determined (1) what can claimant do?; and (2) what employment opportunities in the national economy are available to a man who can only do what claimant can do? Butler v. Flemming, 288 F.2d 591, 594 (5th Cir. 1961).
The evidence shows that plaintiff was born on July 15, 1931 in Mexico, where he attended school to the sixth grade. (Tr. 5, 34). Prior to 1969, his vocational experience included work as a television tube tester, a trimmer for an aircraft company, a welder's helper, a mechanic's helper, a service station attendant, and a construction worker. (Tr. 34-37). On May 1, 1969, plaintiff injured his back while lifting a heavy beam at work. Subsequently, plaintiff was hospitalized several times due to his back injury. On one occasion, doctors discovered he had diabetes. (Tr. 100). On July 17, 1969, Dr. Lewis M. Helfer performed a low back operation, which he described as an "interlaminal removal of herniated nucleus pulposus at L5-S1 bilaterally, L4-5 left." (Tr. 102). Plaintiff claims, however, that there has been no lasting improvement because he has trouble sitting or standing for longer than 30 minutes at a time, he cannot walk further than 4 or 5 blocks and he must lie down intermittently throughout the day. (Tr. 50, 51, 71). Following his operation, plaintiff attempted to work as an automobile and furniture upholsterer, a construction worker, and a dishwasher. (Tr. 40-43). Because of his back pain, plaintiff was forced to leave each of these jobs after a few days.
A detailed discussion of the medical evidence in the record is beyond the scope of this opinion. Briefly stated, the record establishes that the plaintiff has the following medical ailments: (1) herniated discs at L4-5 and L5-S1, which were repaired by surgery on July 17, 1969 (Dr. Helfer, Tr. 102); (2) diabetes (Dr. Helfer, Tr. 100); (3) degenerative osteoarthritis throughout the spine (Dr. Hardy, Tr. 116); (4) anterior lipping, especially at the L-4 level (Dr. Hardy, Tr. 116); (5) Spondylolysis3 (Radiology Report, Tr. 117); and (6) obesity (Dr. Hardy, Tr. 115). The examiner's conclusion is uncontradicted that, due to the operation and permanent-partial impairment to the body resulting therefrom, "Mr. Bonilla does not have the physical capacity to engage in heavy, aduous exertion and probably cannot perform moderate labor." (Tr. 20). However, the examiner concluded that plaintiff "retains sufficient physical and mental capacities to engage in at least light sedentary occupational activities." (Tr. 21). The Court finds substantial evidence to support this conclusion.
There is substantial evidence in the record to support the examiner's conclusions that plaintiff does not suffer any significant functional loss due to diabetes millitus, and, with regard to obesity, "should Mr. Bonilla lose weight as suggested by his doctor, the condition of the back and left leg would improve." (See Tr. 105, 116, 113).
The rule is well settled "that a claimant who has a disabling impairment which can reasonably be classified as remediable is not entitled to receive disability benefits."
Knox v. Finch, 427 F.2d 919, 921 (5th Cir. 1970) diabetes; Stillwell v. Cohen, 411 F.2d 574, 575-76 (5th Cir. 1969) obesity.
There is no clinical or medical evidence in the record that the degenerative osteoarthritis, anterior lipping, or spondylolysis prevents all substantial gainful activity. The only evidence that claimant cannot perform any work is from claimant himself. Section 404.1501(c) of Social Security Administration Regulation No. 4 states: "Statements of the applicant, including his own description of his impairment (symptoms) are, alone, insufficient to establish the presence of a physical or mental impairment."4 Plaintiff, therefore, has not shouldered his burden of proof. Compare Williams v. Finch, 440 F.2d 613, 615-16 (5th Cir. 1971). Although the evidence is clear that plaintiff suffers pain as a result of the accident and subsequent operation, there is also evidence that this pain is relieved by physical therapy. (Tr. 106). Regardless of how this Court would view the evidence if it were before the Court in an original proceeding, the evidence cannot now be reweighed. Although pain can be disabling in certain cases, see Pate v. Richardson, 330 F.Supp. 39, 41 n. 1 (S.D.Tex. 1971), there is no evidence in this case that Mr. Bonilla is disabled by pain from performing all substantial, gainful activity.
Since the Secretary supported his conclusions that plaintiff can do light, sedentary work, the next matter to be reviewed is whether there is substantial evidence in the record to support the Secretary's determination...
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