Gaultney v. Weinberger, 74-1594

• Decision Date: 30 December 1974
• Docket Number: No. 74-1594,74-1594
• Citation: 505 F.2d 943
• Parties: Malcolm M. GAULTNEY, Jr., Plaintiff-Appellant, v. Caspar WEINBERGER, Secretary of Health, Education & Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 943

505 F.2d 943

Malcolm M. GAULTNEY, Jr., Plaintiff-Appellant, v. Caspar WEINBERGER, Secretary of Health, Education & Welfare Defendant-Appellee.

No. 74-1594.

United States Court of Appeals, Fifth Circuit.

Dec. 30, 1974.

David A. Webster, Atlanta, Ga., Sidney L. Moore, Jr., Macon, Ga., for plaintiff-appellant.

William J. Schloth, U.S. Atty., Ronald T. Knight, H. Palmer Carr, Jr., Asst. U.S. Attys., Macon, Ga., Carl H. Harper, Harry F. McDonagh, Dept. of HEW, Atlanta, Ga., for defendant-appellee.

Before BROWN, Chief Judge and AINSWORTH and DYER, Circuit Judges.

DYER, Circuit Judge:

Malcolm M. Gaultney, Jr., suffers pain, but there are no clinically observable causes. He appeals the denial of Social Security disability benefits by the Secretary of Health, Education and Welfare. The district court granted the Secretary's motion for summary judgment. Gaultney asserts on this appeal that the Administrative Law Judge's finding of non-disability was not supported by substantial evidence and that he applied an improper legal standard. Gaultney urges that the decision be either reversed or remanded for the taking of further evidence. Confined, however, by the scope of our review, we affirm the district court's grant of summary judgment.

The Administrative Law Judge's findings, approved by the Appeals Council, became the Secretary's findings, and, as such, are conclusive if they are supported by substantial evidence. 42 U.S.C.A. 405(g); Payne v. Weinberger, 5 Cir. 1973, 480 F.2d 1006; Williams v. Finch, 5 Cir. 1971,440 F.2d 613. The role of the reviewing court is severely limited. Williams v. Finch, supra; Richardson v. Richardson, 5 Cir. 1970, 437 F.2d 109. We do not re-weigh the evidence; we simply determine whether there is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' Richardson v. Perales, 1970, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842. As we have previously suggested, determinations which are not supported by substantial evidence are unusual, even rare. Payne v. Weinberger, supra, 480 F.2d at 1008; Williams v. Finch, supra, 440 F.2d at 615.

In this case, there is substantial evidence to support the Secretary's finding. Both the Administrative Law Judge and the district court summarized the evidence in some detail; we will not do so here. Basically, the finding of non-disability is supported by the testimony of several qualified experts: an orthopedic surgeon, a physician certified in rehabilitation, a psychiatrist, a neurologist also certified in psychiatry, and a vocational expert. The physician who served as medical advisor, Dr. Arthur M. Pruce, evaluated all the medical reports in this case and concluded from them that Gaultney's impairments did not meet nor equal in severity the list of impairments in the Social Security Regulations. 20 C.F.R. Appendix to Subpart P at 326 ff. Therefore, although there is conflicting evidence, and although we might have reached a different conclusion had we been the initial trier of fact, we hold that there is substantial evidence to support the Secretary's determination.

Gaultney next asserts that the Administrative Law Judge applied an improper legal standard in reaching his decision in that he failed to take into account the subjective testimony of Gaultney, his friends, and members of his family regarding the pain he suffers. If this claim were well founded, it would justify reversal or remand. Hayes v. Celebrezze, 5 Cir. 1963, 311 F.2d 648. It is well settled that pain alone can be disabling, even where its existence is unsupported by 'objective medical, clinical or laboratory evidence.' Prewitt v. Gardner, 5 Cir. 1968, 389 F.2d 993. Furthermore, we have often held that the judge must consider subjective evidence of pain as testified to both by the claimant and by other lay witnesses. DePaepe v. Richardson, 5 Cir. 1972, 464 F.2d 92, 94, 99-100; Hayes v. Celebrezze, supra. However, we have never suggested that the subjective evidence should take precedence over conflicting objective medical testimony; nor have we ever held that all pain is disabling. The Ninth and Tenth Circuits have properly held that the inability to work without incurring some pain or discomfort is not necessarily disability. Mark v. Celebrezze, 9 Cir. 1965, 348 F.2d 289; Dvorak v. Celebrezze, 10 Cir. 1965, 345 F.2d 894. Therefore, the question of how much pain is disabling is for the Administrative Law Judge, whose task it is to resolve conflicts in the evidence. Richardson v. Perales, supra. Gaultney asserts that the Administrative Law Judge ignored the evidence of pain. However, we see no reason to question the Judge's statement that he

. . . considered and weighed all of the demonstrative medical evidence, considered the diagnoses and expert medical opinions, weighed the testimony of the claimant as to his pain and discomfort on movement and activity, and the lay testimony from witnesses who testified at the hearing.

Further, the Judge acknowledges that 'it has been held that pain alone can be disabling.' But he properly states that a claimant's assertion that he is disabled by his pain does not foreclose attack on his credibility. It is not necessarily inconsistent to find that a claimant suffers pain in fact, and yet is not so severely impaired as to meet the...