Cagle v. Califano

• Decision Date: 12 January 1981
• Docket Number: No. 79-1598,79-1598
• Citation: 638 F.2d 219
• Parties: Carl B. CAGLE, Appellant, v. Joseph CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 219

638 F.2d 219

Carl B. CAGLE, Appellant, v. Joseph CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellee.

No. 79-1598.

United States Court of Appeals Tenth Circuit.

Argued Nov. 21, 1980.

Decided Jan. 12, 1981.

Harris H. Prescott, Oklahoma City, Okl. (Ungerman, Conner, Little, Ungerman & Goodman, Oklahoma City, Okl., with him on brief), for appellant.

Patricia L. Bossert, Denver, Colo. (Alice Daniel, Asst. Atty. Gen., Washington, D. C., Hubert H. Bryant, U. S. Atty., Robert P. Santee, Asst. U. S. Atty., Tulsa, Okl., Joseph S. Friedman, Trial Atty., Dept. of Health, Ed. and Welfare, Washington, D. C., with her on brief), for appellee.

Before DOYLE, BREITENSTEIN and SEYMOUR, Circuit Judges.

BREITENSTEIN, Circuit Judge.

Plaintiff-appellant Cagle brought this action under 42 U.S.C. § 405(g) seeking judicial review of the final administrative decision of the Secretary of Health, Education, and Welfare denying plaintiff's application for disability insurance benefits and supplemental security income under the Social Security Act (the Act). We affirm in part and remand with directions.

The Secretary's decision must be sustained if supported by substantial evidence. Gardner v. Bishop, 10 Cir., 362 F.2d 917, 919, and 42 U.S.C. § 405(g). The reviewing court does not weigh the evidence and may not substitute its discretion for that of the agency. See Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131.

Plaintiff complains of back pains which affect his ability to work as a welder. His original application for disability insurance benefits, filed in April, 1974, was denied as was a subsequent application made in June, 1976. Another application, presented on February 8, 1977, was denied because of failure to show the requisite disability. Pursuant to a timely request, an Administrative Law Judge, ALJ, conducted a hearing at Miami, Oklahoma, on September 28, 1977. After hearing the testimony of the plaintiff and his wife, and after considering the medical and vocational testimony and reports, the ALJ made findings which included:

"3. The claimant had a laminectomy and lumbosacral fusion with discetomy L5-S1 and subsequently (sic) exploratory surgery which showed the fusion to be solid.

4. The claimant suffers from low back pain and left sciatic, secondary to nerve root adhesions, a hiatal hernia with reflux esophagitis, and anxiety reaction and depression."

The ALJ further found that the applicant was not under a disability as defined by the Act at any time before the decision. In a carefully prepared and comprehensive memorandum opinion the district court reviewed the evidence, medical, vocational, and subjective, presented to the ALJ and the Secretary. The court found that the decision was supported by substantial evidence and should be affirmed. We have read the transcript and examined the medical reports and agree with the district court. No good purpose would be served by any new summary of the evidence.

Plaintiff says that the decision of the ALJ is based in part on the answer of a vocational expert to an improper hypothetical question. The question assumed that plaintiff had driven an automobile "for a couple of hours a day and/or go on a trip like that to Austin (in one day)." Defendant testified that he had driven from his home in Jay, Oklahoma, to Austin, Texas, in one day. Plaintiff also says that the question omitted pertinent medical evidence. The hypothetical did not assume facts missing from the record. See Myers v. Weinberger, 6 Cir., 514 F.2d 293, 294, and Chaney v. Califano, 5 Cir., 588 F.2d 958, 960, n.5. Both the ALJ and the vocational expert gave consideration to the medical evidence and the subjective testimony of the plaintiff. The questioning of the vocational expert was fair and proper.

Plaintiff asks that the case be remanded to the Secretary for the consideration of new and material medical evidence not available at the time of the administrative decision. Section 405(g), 42 U.S.C., which provides for judicial review of the Secretary's actions, says that the court "may, at any time, on good cause shown, order additional evidence to be taken before the Secretary." In a supplemental trial brief, plaintiff requested a remand to the Secretary because of medical evidence which became available...