Dunlap v. Harris, 80-1617
| Decision Date | 05 June 1981 |
| Docket Number | No. 80-1617,80-1617 |
| Citation | 649 F.2d 637 |
| Parties | Arthur R. DUNLAP for Daniel S. Dunlap, Appellant, v. Patricia Roberts HARRIS, Secretary of Health, Education and Welfare, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Michael R. Bamvakais, Edwin J. Kohner, St. Louis, Mo., for appellant.
Robert D. Kingsland, U.S. Atty., Bruce D. White, Asst. U.S. Atty. (argued), St. Louis, Mo., for appellee.
Before BRIGHT, HENLEY and ARNOLD, Circuit Judges.
In this social-security case Daniel S. Dunlap appeals from the District Court's decision upholding the Secretary's finding that he was not under a disability on his twenty-second birthday, the last date he had insured status for purposes of obtaining child's disability benefits on the earnings account of his father, Arthur R. Dunlap. 42 U.S.C. § 402(d). In order to prevail, Daniel must show that he was under a disability as defined by the Social Security Act commencing at a time on or prior to July 19, 1976, the day he became 22. The Secretary's decision is conclusive if it is supported by substantial evidence.
Claimant's application was denied by the Secretary on initial consideration and on reconsideration. On February 6, 1979, a hearing was held at plaintiff's request, at which Daniel S. Dunlap, his mother, June M. Dunlap, and a vocational expert testified. On March 20, 1979, the administrative law judge rendered a written opinion unfavorable to plaintiff, finding that plaintiff had not been under a disability at any time prior to or on his twenty-second birthday. His decision was affirmed by the Appeals Council, and plaintiff filed a complaint in the United States District Court for the Eastern District of Missouri. The case was referred to United States Magistrate William S. Bahn, who recommended a decision for the Secretary. After objections were filed by the plaintiff, United States District Judge H. Kenneth Wangelin granted summary judgment to the Secretary, and plaintiff filed a timely notice of appeal.
Daniel S. Dunlap's disability claim is based on a mental condition which has variously been diagnosed as manic-depressive disease depressed type; severe anxiety neurosis; schizophrenia, schizo-affective type; and personality disorder, passive-aggressive with chronic depression. There is no claim that plaintiff suffers or suffered from any serious physical ailments. A severe mental impairment is, of itself, sufficient to support an award of disability benefits. The mere existence, however, of mental disturbance is not per se a disability within the meaning of the Act. The appropriate test is whether the mental impairment is of such severity that plaintiff cannot, or could not on his last eligibility date engage in any substantial gainful employment. Corbin v. Califano, 481 F.Supp. 699 (W.D.Mo.1979). A nondisabling condition at age 22 which later develops into a disability is not sufficient as a basis for child's disability insurance benefits. Reading v. Mathews, 542 F.2d 993 (7th Cir. 1976).
The administrative law judge concluded that the claimant was suffering from a medically determinable mental condition which did not reach disability proportions until after the age of twenty-two. Claimant's major contention on appeal is that this determination is not supported by substantial evidence because the Secretary did not present any evidence as to his mental condition prior to his twenty-second birthday.
We will summarize the evidence. Daniel S. Dunlap was 24 years old at the time of the hearing. He had reached his 22nd birthday on July 19, 1976. His mental and emotional problems have appeared periodically throughout his life beginning at age seven. Because of emotional outbursts he was placed in special education classes at the age of seven and remained there until age eleven. At that point he went back to regular public schools, making satisfactory academic progress through the eleventh grade. He was never a disciplinary problem. After his grades fell very low, he dropped out of school in the twelfth grade and was never graduated.
He attended vocational-rehabilitation training three times. He was reported to be capable and had good work habits when assigned to a task which he enjoyed. After his second period of training he was placed in a pizza parlor making pizzas. He quit after four days because he said he did not like the work and did not like the pay. Later he worked as a dishwasher for three days. He quit that job also because he did not like the work. When asked at the hearing before the administrative law judge why he thought he could not work, he replied that he could not handle pressure and that he was not like other people who could continue to work at a job they did not like. He showed interest in jobs which would involve coins, which he collects, or in the music industry.
Claimant testified that he plays records, watches television, or runs errands for his parents during the day. At night he goes out two or three times a week with friends to a tavern or a disco. Mr. Dunlap lives with his parents, both of whom have serious medical problems, and his older brother, who is also unemployed and has a history of mental illness. Mr. Dunlap's mother testified that he had attempted suicide two times, once when he was eighteen and again several years later. Both attempts were by drug overdose. When asked if she had encouraged him to get a job, she said that she hadn't tried to push him, because he was not the type of person who could be pushed.
A vocational expert whose specialty is the placement of persons with mental illness testified that taking into consideration claimant's history of periodic mental problems, the medical evidence, the testimony at the hearing, and his lack of motivation, there were numerous jobs available in the St. Louis area for a person of his age and educational background. He suggested basic unskilled entry-level positions such as stock worker, materials handler in a warehouse, dock worker, or drill press operator, a job plaintiff enjoyed during his vocational training. When specifically asked about claimant's lack of motivation and periods of depression, the vocational expert qualified his answer, stating that if the depression were chronic and unresponsive to treatment, plaintiff would have to be placed in a low-pressure job, preferably one that he...
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