Desedare v. SECRETARY OF HEALTH, ED. AND WELFARE, Civ. No. 79-6050.

• Decision Date: 28 July 1981
• Docket Number: Civ. No. 79-6050.
• Citation: 534 F. Supp. 21
• Parties: James D. DESEDARE, Plaintiff, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant.
• Court: U.S. District Court — Western District of Arkansas

534 F. Supp. 21

James D. DESEDARE, Plaintiff, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant.

Civ. No. 79-6050.

United States District Court, W. D. Arkansas, Hot Springs Division.

Memorandum Opinion and Order October 1, 1980.

Opinion After Remand May 29, 1981.

Order Staying Remand to Agency Pending Appeal July 28, 1981.

Edward E. Scrimshire, Malvern, Ark., for plaintiff.

Larry R. McCord, U. S. Atty., Fort Smith, Ark., for defendant.

OREN HARRIS, Senior District Judge.

This is an action for review of a final decision of the defendant, Secretary of Health, Education and Welfare for denying the claim of the plaintiff, James D. Desedare, for disability benefits under the Social Security Act. Jurisdiction of this Court is established pursuant to 42 U.S.C. § 405(g).

Plaintiff filed an application for disability insurance benefits on January 8, 1978, alleging that he became unable to work on August 6, 1977, because of a back injury. The claim was denied initially and on reconsideration. A hearing was held before an ALJ who determined that plaintiff was not disabled within the meaning of the Social Security Act. The ALJ's decision became the final decision of the Secretary when the Appeals Council approved the decision. From that decision comes this petition for review.

The limited role of the Court on judicial review under 42 U.S.C. § 405(g), is to determine whether there is substantial evidence to support the findings of the Secretary. If supported by substantial evidence, the findings are conclusive and must be affirmed. For purposes of the Social Security Act, substantial evidence is defined as more than a mere scintilla, which means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

The ALJ found that although claimant was precluded from his former heavy work, he is not precluded from engaging in those sedentary, entry-level jobs as testified to by the vocational expert, all of which exist in significant numbers in the region in which claimant resides.

The claimant has the initial burden of establishing that he is unable to perform his past occupation due to the medically determinable impairment. However, when a claimant has established that a disability precludes him from performing his former work, the burden shifts to the Secretary to prove that there is some other type of substantial gainful employment that the claimant can perform. Davis v. Califano, 605 F.2d 1067 (8th Cir. 1979).

The ALJ concluded that plaintiff could not perform his former job. Thus, the burden shifted to the Secretary to establish by a preponderance of the evidence that there was work available in the national economy that plaintiff could perform in his disabled condition. The only evidence in the record to support the ALJ's finding that plaintiff could engage in substantial gainful activity is the testimony of the vocational expert. The Court has to conclude, after a review of the record, that vocational expert's testimony was fatally deficient because the hypothetical failed to precisely set out all of the claimant's impairments. Behnen v. Califano, 588 F.2d 252 (8th Cir. 1978); Lewis v. Califano, 574 F.2d 452 (8th Cir. 1978); Daniels v. Mathews, 567 F.2d 845 (8th Cir. 1977).

The Court finds that the vocational expert's answers to the ALJ's hypothetical questions were deficient and did not constitute substantial evidence on which the Secretary could base a denial of benefits and remands this cause to the Secretary for further consideration consistent with this opinion.

IT IS, THEREFORE, Ordered that this cause be and is hereby remanded to the Secretary of Health, Education and Welfare with directions that new and additional evidence be taken with reference to the application of the plaintiff, that the application be reconsidered in light of the entire record as supplemented, and that the new and reconsidered final decision of the Secretary, together with the supplemental record, shall be filed in this cause, as provided in 42 U.S.C. § 405(g). Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is denied, without prejudice to further appropriate motions.

Opinion After Remand

This is an action for review of a final decision of the defendant, Secretary of Health, Education and Welfare, denying the claim of the plaintiff, James D. Desedare, for disability benefits under the Social Security Act. Jurisdiction of this Court is established pursuant to 42 U.S.C. § 405(g).

Plaintiff filed an application for disability insurance benefits on January 8, 1978, alleging that he became unable to work on August 6, 1977, because of a back injury. The claim was denied initially and on reconsideration. After a hearing before an ALJ, the claim was again denied. The decision of the ALJ was affirmed by the Appeals Council and became the final decision of the Secretary.

A petition for review was filed with this Court and by Order dated September 29, 1980 the case was remanded for development of the evidence. Specifically, this Court instructed that the Secretary had failed to establish by a preponderance of the evidence that there was work available in the national economy that plaintiff could perform in his disabled condition. This Court stated the vocational expert's testimony was fatally deficient because the hypothetical question propounded to him failed to precisely set out all of the claimant's impairments. The Court noted this is required by the Eighth Circuit Court of Appeals.

Upon remand, a supplemental hearing was held. A vocational expert was called to testify. On January 14,...