Gardner v. Brian, 8342.

• Decision Date: 29 November 1966
• Docket Number: No. 8342.,8342.
• Citation: 369 F.2d 443
• Parties: John W. GARDNER, Secretary of Health, Education and Welfare, Appellant, v. Ellice C. BRIAN, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

369 F.2d 443 (1966)

John W. GARDNER, Secretary of Health, Education and Welfare, Appellant, v. Ellice C. BRIAN, Appellee.

No. 8342.

United States Court of Appeals Tenth Circuit.

November 29, 1966.

David L. Rose, Washington, D. C. (John W. Douglas, Washington, D. C., Bruce Green, Muskogee, Okl., Harvey L. Zuckman, Washington, D. C., with him on brief), for appellant.

Earl P. Enos, Duncan, Okl., for appellee.

Before MURRAH, Chief Judge, and LEWIS, BREITENSTEIN, HILL and SETH, Circuit Judges.

MURRAH, Chief Judge.

We reheard this case en banc to resolve the seeming conflict between Dvorak v. Celebrezze, 10 Cir., 345 F.2d 894, and Haley v. Celebrezze, 10 Cir., 351 F.2d 516, on the constantly recurring question whether a claimant for social security benefits is "under disability", i. e. unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration." 42 U.S.C. §§ 416(i) (1) (A), 423(c) (2).

After remand by the District Court for further "neurological and orthopedic findings", the Appeals Council acting for the Secretary again denied the claimed benefits. Denial was based upon medical and psychiatric reports dating from October, 1955, thru 1963, and upon the testimony of a vocational consultant who, without having interviewed the claimant but making reference to a dictionary of "occupational titles" expressed the view that under the assumed facts of record the claimant could engage in enumerated light sedentary occupations requiring minimal entry training; that these enumerated occupations would be consistent with his age, educational background, residual capacity and work experience.

Since this case was submitted, we have again recognized that "Congress has delegated to the Secretary the duty of administering the Act and making factual determinations and conclusions within the guidelines set out in the statute" and that "the findings of fact of the Secretary and inferences drawn therefrom are not to be disturbed by a reviewing court if there is substantial evidence to support them." Gardner v. Bishop, 10 Cir., 362 F.2d 917; see also Johnson v. Gardner, 10 Cir., 368 F.2d 909; Celebrezze v. Warren, 10 Cir., 339 F.2d 833, construing 42 U.S.C. § 405(g); Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. The Secretary is, to be sure, empowered to construe and interpret the provisions of the statutory scheme he administers, i. e. see Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616; United States v. Southwest Potash Corp., 10 Cir., 352 F. 2d 113. But, reviewing courts are also charged with the duty to construe legislation in the light of ascertained Congressional policy. "They are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute." National Labor Relations Board v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839.

In reversing the Secretary the trial court considered only medical testimony contemporaneous with the claimed period of disability, i. e. September 15, 1959, until March, 1963. On the basis of this medical testimony and considering the claimant's age, education, work experience and physical impairment, the court concluded that the claimant was unable to engage in any substantial gainful activity during the claiming period. In arriving at its decision the trial court interpreted the statutory term "any substantial gainful activity" to mean "what is reasonably possible, not what is conceivable" — that "a theoretical ability to so engage is not enough if no reasonable opportunity is available." The court observed that the claimant was 58 years old with an eighth grade education and a work experience limited to farm work, oil well servicing, tank welding and car parts man; that he had no special training or skills of any kind and that his limited education and work experience brought him within the rule that "When a claimant's former employment is the only type of work he is capable of performing, then `former work' means `any work' and the requirements of the Act are met." Celebrezze v. O'Brient, 5 Cir., 323 F.2d 989, 992.

Although the court did not reject the testimony of the consultant concerning the availability of suitable employment, it did take the view that claimant was not "required by the use of a catalog of the nation's industrial occupations to go down the list and verbally negative his capacity for each of them or their availability to him as an actual opportunity for employment." And see Butler v. Flemming, 5 Cir., 288 F.2d 591; Underwood v. Ribicoff, 4 Cir., 298 F.2d 850; Hayes v. Celebrezze, 5 Cir., 311 F.2d 648.

We followed the same case law to arrive at the same conclusions in Celebrezze v. Warren, supra, and epitomized the rule gleaned from the cited cases as clearly establishing that "in determining whether a particular applicant is unable to engage in any substantial gainful activity, i. e. what he can do and what is available to him to do, consideration must be given to his age, education, training, experience and mental and physical capabilities." And, following established case law, we rejected the notion that "pain must be endured" and that "no matter how severe or overpowering, it is not disabling." We adopted Judge Brown's language for the Fifth Circuit in Butler v. Flemming, supra, 288 F.2d 595, in which he said "Congress has in effect stated that if a person is unable except under great pain to engage in any substantial gainful activity in which he might be employable, taking into consideration his age, training, work experience and physical and mental capacities, he shall be deemed to be disabled for the purposes of this Act." Cf. Johnson v. Gardner, supra.

Judge Breitenstein, speaking for this court in Dvorak v. Celebrezze, supra, apparently took a different philosophical view of the effect of pain on the ability to engage in gainful activity. He recognized that the Act should be liberally construed to ameliorate the rigors of life, but did not think these principles require disability benefits merely upon a showing that "a man cannot work because it hurts"; that while subjective symptoms should be evaluated, consideration must also be given to "credibility, motivation and medical evidence of impairment." Finally, he observed that "although the claimant does not have the burden of negativing every possible job opportunity, the administrative agency has only to produce some evidence from which a finding can be made that the claimant can do some type of work. It does not have the duty of finding a specific employer and a specific job."

It may be that the language in Dvorak was intended to erect a stricter test for determining what a claimant can do and what is available for him to do. Dvorak seems to follow cases from the Eighth Circuit which adopt stricter requirements to make out a case for the claimant based upon the availability of work opportunities. See Celebrezze v. Sutton, 8 Cir., 338 F.2d 417; Celebrezze v. Bolas, 8 Cir., 316 F.2d 498; see also Jones v. Celebrezze, 331 F.2d 226, where the Seventh Circuit categorically stated that the "Secretary did not have the burden of proving availability of * * * employment opportunities." And see Gee v. Celebrezze, 7 Cir., 355 F.2d 849.

In any event we adhere to the test as blueprinted in Celebrezze v. Warren, supra, as elaborated in Celebrezze v. O'Brient, 5 Cir., 323 F.2d 989; Kerner v. Flemming, 2 Cir., 283 F.2d 916; Butler v. Flemming, supra; Hayes v. Celebrezze, supra; Ray v. Celebrezze, 4 Cir., 340 F.2d 556; Massey v. Celebrezze, 6 Cir., 345 F.2d 146; Underwood v. Ribicoff, 4 Cir., 298 F.2d 850. We think Judge Sobeloff in Cyrus v. Celebrezze, 4 Cir., 341 F.2d 192, expressed what seems to us to be the prevailing and better reasoned view to the effect that "there must be evidence to show the reasonable availability of jobs which this particular claimant is capable of performing." The Fifth Circuit has most recently reaffirmed the test of "`reasonable availability' of jobs within the geographical areas which the claimant would normally be 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 "once the claimant has shown inability to perform his usual vocation, the burden falls upon the Secretary to show the reasonable availability of suitable positions." Haley v. Celebrezze, supra. This burden is not met by the production of a catalog of the nation's industrial occupations and proof that the claimant would be capable of performing one or more of the enumerated occupations if available. The Secretary must show reasonable availability and the claimant is not required to negative his capacity to do every possible job in the catalog.

Of course, every case must rest upon its particular facts, and it is significant to note that in Dvorak the Secretary found it "reasonable to expect that some suitable employment could be found there Albuquerque, New Mexico, claimant's home were the claimant motivated to seek it." It is also noteworthy that in Gardner v. Bishop, supra, the court affirmed the finding of the Secretary based upon a finding of its examiner that "claimant did not have physical impairments of such severity so as to prevent him from engaging in any substantial gainful activity, or even returning to the type of work in which he had been engaged prior to his alleged disability."

The medical books relied upon for the Secretary's diagnosis in Haley v. Celebrezze, supra, were not ruled out even though they were...