Brenem v. Harris

• Decision Date: 14 July 1980
• Docket Number: No. 79-3798,79-3798
• Citation: 621 F.2d 688
• Parties: Johnie J. BRENEM, Plaintiff-Appellant, v. Patricia Roberts HARRIS, Secretary of Health and Human Services, Defendant-Appellee. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 688

621 F.2d 688

Johnie J. BRENEM, Plaintiff-Appellant, v. Patricia Roberts HARRIS, Secretary of Health and Human Services, Defendant-Appellee.

No. 79-3798

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

July 14, 1980.

Robertson & Wilkinson, Carl M. Weisbrod, Dallas, Tex., for plaintiff-appellant.

Kenneth J. Mighell, U.S. Atty., Martha Joe Stroud, Asst. U.S. Atty., Dallas, Tex., Walter E. McCabe, Jr., Baltimore, Md., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before BROWN, TJOFLAT and FRANK M. JOHNSON, Jr., Circuit Judges.

PER CURIAM:

Appellant, Johnie J. Brenem, appeals the decision of an Administrative Law Judge (ALJ) of the Department of Health and Human Resources denying him social security disability benefits for a period from January 30, 1976, a few days after he received a work-related back injury, until September, 1978, when he was deemed totally disabled due to a subsequent heart attack. On the reasoning that the record fails to show substantial evidence that Brenem was not totally disabled, we reverse and remand.

Brenem's application initially was denied by the Social Security Administration (SSA). He then pro se requested review of this finding by a Social Security ALJ. He indicated a desire to appear in person without the benefit of counsel. He later changed his mind, waiving his right to appear and asked that the decision be made on the basis of the exhibits in the record. This was done, and the ALJ found that:

The claimant has since January 30, 1976, had a spondylolysis of the lumbosacral spine and either a mild hysterial conversion neurosis or a mild compensation neurosis with some mild anxiety and depression.

However,

Although the claimant had the above mentioned impairments, he retained the residual mental and physical functional capacity to have continued to engage in substantial gainful activity by working at any of several different types of light and/or sedentary jobs existing in large numbers in the general geographical area where he lives which he is vocationally qualified to perform, according to an expert vocational assessment of his vocational capabilities, including the jobs of attendant at a self-service type automobile service station, bench assembler of small parts at a manufacturing plant, security guard, watchman, machine operator, and many others.

The Appeals Council of the SSA approved this determination, and the District Court affirmed, relying upon a Magistrate's findings, conclusions and recommendations after reviewing the ALJ's findings.

We find that the record demonstrates substantial evidence to support the ALJ's findings concerning Brenem's physical and psychological impairments. What the record does not show, however, is substantial evidence to support the finding that there existed in the economy other gainful employment which Brenem could do.

In order for a claimant to prove eligibility for Social Security disability benefits, he must show not only "that he has a medically determinable physical or mental impairment which has lasted or is suspected to continue for twelve months, (but) he must also prove that he cannot find 'substantial gainful work which exists in the national economy, regardless of whether . . . he would be hired if he applied for (such) work.' " Johnson v. Harris, 612 F.2d 993, 997 (5th Cir. 1980), quoting 42 U.S.C.A. § 423(d)(2)(A) (1974).

With respect to the latter part of his burden of proof, once a claimant has shown that he no longer can perform his former job, the burden then shifts to the Secretary to show that he can perform other gainful employment available in the economy. DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972). There is no dispute here that Brenem was no longer capable of performing the job he had before his back injury, and that the burden of proof of alternative employment then shifted to the Secretary.

To meet this burden, interrogatories were propounded to a vocational expert, who was also given a copy of almost all of the exhibits in the record. These interrogatories began as follows:

Based on your review of the exhibits admitted in evidence in this case, please furnish answers to the following questions:

1. Assuming the claimant retains the physical capacity to perform light jobs not requiring frequent or repeated but only occasional bending, stooping and lifting, are there any jobs existing in the Abilene and west Texas area which he would be able to perform considering his age, education, and past work experience? Indicate the numbers in which each type of job exist and provide the names of one or more employers in the area where such jobs exist.

There followed three similar hypothetical questions, assuming other physical limitations on the part of the claimant. But none of these interrogatories ever required the vocational expert to assume ...