Celebrezze v. Kelly
| Decision Date | 17 July 1964 |
| Docket Number | No. 21095.,21095. |
| Citation | 331 F.2d 981 |
| Parties | Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Appellant, v. Hubert C. KELLY, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Alan S. Rosenthal and Martin Jacobs, Attys., Dept. of Justice, John W. Douglas, Asst. Atty. Gen., H. M. Ray, U. S. Atty., Dept. of Justice, Washington, D. C., for appellant.
Guy N. Rogers, Asst. Atty. Gen., State of Miss., Jackson, Miss., for appellee.
Before TUTTLE, Chief Judge, and POPE* and BROWN, Circuit Judges.
The judgment of the trial court directing the Secretary of Health, Education and Welfare to find that the appellee "has established a period of disability within the meaning of Title 42 United States Code, Section 416(i), and is entitled to the payment of disability insurance benefits under the provisions of Title 42, United States Code, Section 423," must be reversed.
It is clear that in its analysis of the record made in the administrative proceedings before the Secretary as to the appellee's physical condition, the trial court rejected the evidence that would support the findings of the examiner and adopted evidence that supported the contentions of the appellee.
There was ample evidence to support the examiner's findings that the claimant "has remaining capacity for weight bearing, walking, standing, sitting, stooping, grasping, lifting, reaching and bending, as evidenced by the fact that he is fully ambulatory." It is also clear that there was ample evidence to support the findings by the examiner that "there is no apparent reason why the claimant could not return to his former occupation as a model maker as far as his physical condition is concerned," and further findings that there was a large number of fields of work open to the claimant "which are considered to be of a light or sedentary nature and which require a minimum of education and retraining."
The trial court seemed to find fault with the failure of the Secretary "to show that any of these occupations are in fact available to plaintiff in his community." In none of the cases arising under this act has this Court held that there must be a showing that there are jobs actually available in the town or community in which the claimant resides open to him, and which are within his determined physical capability to fill before there can be a denial of coverage under the act. Neither has this Court ever stated that proof of...
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Gardner v. Brian, 8342.
...expected to consider if regularly in the labor market." See Gardner v. Smith, 5th Cir., 368 F.2d 77, quoting and citing Celebrezze v. Kelly, 5 Cir., 331 F.2d 981, 982. This is not to say that the Secretary has the "duty of finding a specific employer for a specific job." It does mean that "......
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Reyes Robles v. Gardner
...He must then determine what type of work the individual can do in the face of his disability, as has been done here. Celebrezze v. Kelly (5 Cir., 1964, 331 F.2d 981); Ray v. Celebrezze, 4 Cir. 1965, 340 F.2d 556; Hall v. Celebrezze, 4 Cir. 1965, 347 F.2d 937. Finally, the Secretary must mak......
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Gardner v. Smith
...the geographical areas which the claimant would normally be expected to consider if regularly in the labor market." Celebrezze v. Kelly, 5 Cir. 1964, 331 F.2d 981, 982; see also, Tigner v. Gardner, 5 Cir. 1966, 356 F.2d 647, 651; Thomas v. Celebrezze, 4 Cir. 1964, 331 F.2d 541, The Secretar......
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De Gracia v. Secretary of Health, Education and Welfare
...of employment in that field within the geographical area which claimant would normally be expected to consider. Celebrezze v. Kelly (5th Cir., 1964), 331 F.2d 981. Although the claimant does not have the burden of negativing every possible job opportunity, the administrative agency has only......