Hemphill v. Weinberger

• Decision Date: 10 October 1973
• Docket Number: No. 72-2584.,72-2584.
• Parties: James H. HEMPHILL, Plaintiff-Appellant, v. Caspar W. WEINBERGER, Secretary, Department of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

483 F.2d 1137 (1973)

James H. HEMPHILL, Plaintiff-Appellant, v. Caspar W. WEINBERGER, Secretary, Department of Health, Education and Welfare, Defendant-Appellee.

No. 72-2584.

United States Court of Appeals, Fifth Circuit.

September 14, 1973.

Rehearing Denied October 10, 1973.

David W. Palmer, Crestview, Fla., for plaintiff-appellant.

William H. Stafford, Jr., U. S. Atty., J. Worth Owen, Asst. U. S. Atty., Pensacola, Fla., for defendant-appellee.

Before GOLDBERG, AINSWORTH and INGRAHAM, Circuit Judges.

INGRAHAM, Circuit Judge:

James H. Hemphill appeals from the district court's judgment which affirmed the final decision of the Secretary of Health, Education and Welfare denying him disability insurance benefits. Hemphill filed his claim with the Social Security Administration in May 1968, asserting that he was totally and permanently disabled as of December 15, 1967. After the initial administrative determination that he was not disabled a de novo hearing was held before a hearing examiner. The hearing examiner likewise found that appellant was not disabled within the meaning of the Social Security Act, 42 U.S.C. § 423(d), as amended, and his decision became the final decision of the Secretary. Hemphill appealed to the district court, which subsequently remanded the case to the Secretary for clarification testimony as to appellant's disability from Dr. Herman Schrieber, Jr. After receiving this testimony the hearing examiner again denied the claim. That decision became the final decision of the Secretary, and on appeal the district court upheld this conclusion by granting the Secretary's motion for summary judgment.

The issue here is whether there is substantial evidence in the record as a whole to support the conclusion that Hemphill is not disabled as that term has been statutorily defined. Finding that there is such evidence in this record, we affirm.

In order to be eligible for disability insurance benefits a claimant must establish that he or she is 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 which has lasted or can be expected to last for a continuous period of not less than 12 months. . . ." 42 U. S.C. § 423(d) (1). Moreover, "an individual . . . shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. § 423 (d) (2) (A).

This Court's role in the administration of Social Security disability benefits has been recently summarized in Rivas v. Weinberger, 475 F.2d 255, 257 (5th Cir., 1972), as follows:

"Our function in reviewing fact findings of the Secretary is limited to determining whether there is substantial evidence in the record, considered as a whole, to support them. 42 U.S.C.A. § 405(g); see Ward v. Celebrezze, 5th Cir. 1963, 311 F.2d 115, 116. Substantial evidence is `more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.\' Breaux v. Finch, 5th Cir. 1970, 421 F.2d 687; see 4 K. Davis, Administrative Law Treatise § 29.02 (1953)."

It is unnecessary to undertake a detailed summary of the evidence in this record in order to perform this function. Mr. Hemphill testified that if it were not for gout and arthritis he would still be working. Although the record establishes that he also suffers from hypertension, it is clear that his hypertension, standing alone, does not furnish a basis for concluding that he cannot engage in substantial gainful activity. The crucial issue is whether appellant suffers from gout or arthritis, or both, to a degree rendering him disabled under the statute. On this point there is conflicting evidence; the Secretary must resolve such conflicts. Payne v. Weinberger, 480 F.2d 1006 (5th Cir., 1973); Grant v. Richardson, 445 F.2d 656 (5th Cir., 1971).

Dr. Herman Schrieber, Jr. a Boardcertified orthopedist, found that Mr. Hemphill did suffer from "a bona fide case of gouty arthritis" and noted that "during attacks of acute gouty arthritis involving any joint, one can expect a patient to become completely disabled." He continued, however, with the following statement: "There is good reason to state that in this case between the attacks the patient from the musculo-skeletal point of view should be capable...