Braswell v. Heckler, 83-1628

• Decision Date: 02 May 1984
• Docket Number: No. 83-1628,83-1628
• Citation: 733 F.2d 531
• Parties: , Unempl.Ins.Rep. CCH 15,296 Warren A. BRASWELL, Appellant, v. Margaret M. HECKLER, Secretary of Health & Human Services, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 531

733 F.2d 531

5 Soc.Sec.Rep.Ser. 108, Unempl.Ins.Rep. CCH 15,296

Warren A. BRASWELL, Appellant, v. Margaret M. HECKLER, Secretary of Health & Human Services, Appellee.

No. 83-1628.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 10, 1984.

Decided May 2, 1984.

John W. Reid, II, Schnapp, Graham & Reid, Fredericktown, Mo., for appellant.

Thomas E. Dittmeier, U.S. Atty., St. Louis, Mo., Wesley D. Wedemeyer, Asst. U.S. Atty., St. Louis, Mo., for appellee; Paul P. Cacioppo, Regional Atty., Region VII, Bruce R. Granger, Atty., Dept. of Health and Human Services, Kansas City, Mo., of counsel.

Before HEANEY, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BRIGHT, Circuit Judge.

HEANEY, Circuit Judge.

Warren Braswell appeals the district court's order granting summary judgment to the defendant Secretary of Health and Human Services. That order affirmed the Secretary's decision denying Braswell social security disability benefits. The sole issue on appeal is whether the Secretary's decision denying disability is supported by substantial evidence. For the reasons set forth below, we reverse.

Braswell is now 49 years old. He has a fifth grade education. He served in the military and received an honorable discharge. He has worked since he was 17 years old. He was employed successively in a hat factory, an autobody plant, a crayon factory, and in a school as a janitor. More recently he has worked as a sawmill operator and general laborer.

In 1971, during a period of "terrible depression," Braswell attempted to commit suicide by shooting himself in the head. Although he survived this injury, bullet fragments remain in his head. Several years later, Braswell began to have seizures, and he was hospitalized for a blackout in 1975. A skull x-ray revealed that he now has a bone deformity in the right frontal region, and a brain scan diagnosed decreased blood flow through the right side of his brain. The doctor diagnosed his condition as "post operative brain surgery epilepsy." His doctors' reports variously describe him as now slightly retarded, or of low average intelligence.

The doctors discharged him on anticonvulsant medication. With this medication, Braswell no longer has convulsions or "grand mal" seizures, but he continues to have blackout spells, or "petit mal" seizures. These blackouts may last from ten to twenty minutes, and afterward he often feels weak and needs to lie down. During the time he worked as a sawyer, Braswell had three different car accidents due to his blackouts, and has now been instructed that he cannot drive. Because of his blackout spells, he lost the last job he held as a laborer for a siding contractor. Braswell's wife and neighbors observe that his personality has changed after the head injury. In contrast to his formerly calm disposition, he now tends to be hostile, becomes angry more easily, and thinks "he is always right."

Braswell filed a claim for disability insurance and supplemental security income benefits on October 16, 1980. The Secretary denied his claims; he requested and received a hearing before an Administrative Law Judge (ALJ) on February 24, 1982. The ALJ also denied his applications, and the Appeals Council affirmed this decision on May 18, 1982. Braswell then filed suit in federal district court for the Eastern District of Missouri. After reviewing a federal magistrate's recommendation, the district court granted the Secretary's motion for summary judgment on April 28, 1983. Braswell then brought this appeal.

Our task on review is to determine whether the Secretary's decision denying disability is supported by substantial evidence. 42 U.S.C. Sec. 405(g) (1976). Persons are considered "disabled" under the Social Security Act if they have an

inability to engage in any 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. 423(d)(1)(A) (1976).

Once claimants show their inability to perform their former job due to their disability, the burden then shifts to the Secretary to prove that they can perform some other kind of substantial gainful activity. Jackson v. Schweiker, 696 F.2d 630, 631 n. 1 (8th Cir.1983); Tucker v. Schweiker, 689 F.2d 777, 779 (8th Cir.1982); Tennant v. Schweiker, 682 F.2d 707, 710 (8th Cir.1982).

Under the Secretary's regulations, the disability determination involves step-by-step consideration of any current work activity, the severity of the claimant's impairments, the claimant's residual functional capacity and age, education, and work experience. 20 C.F.R. Sec. 404.1520(a) (1983). In this case, the ALJ decided to deny disability because he found that Braswell's impairment is not of such severity as to preclude him from performing any substantial gainful activity, and that he retains the residual functional capacity to perform his past relevant work as a janitor.

We hold that there was not substantial evidence to support these findings by the ALJ for several reasons. First, the Secretary's regulations provide that if the claimant suffers an impairment which meets the duration requirement and is listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404, or is equal to a listed impairment, the claimant will be determined disabled without considering age, education and work experience. 20 C.F.R. Sec. 404.1520(d) (1983). The ALJ found that Braswell's condition did not meet or equal a listed impairment. Section 11.03 of the Listing of Impairments provides:

11.03 Epilepsy--minor motor seizures (petit mal, psychomotor, or focal), documented by EEG, and by detailed description of a typical seizure pattern, including all associated phenomena; occurring more frequently than once weekly in spite of at least 3 months of prescribed treatment. With alteration of awareness or loss of consciousness and transient postictal manifestations...