Herridge v. Richardson, 71-3236 Summary Calendar.
| Decision Date | 27 July 1972 |
| Docket Number | No. 71-3236 Summary Calendar.,71-3236 Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
| Parties | Weslie W. HERRIDGE, Plaintiff-Appellant, v. Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant-Appellee. |
Ike F. Hawkins, Jr., Shreveport, La., for plaintiff-appellant.
Donald E. Walter, U. S. Atty., Shreveport, La., John N. Mitchell, Atty. Gen., U. S., Dept. of Justice, Administrative Div., Washington, D. C., Leven H. Harris, Asst. U. S. Atty., Shreveport, La., for defendant-appellee.
Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.
Weslie W. Herridge commenced this action under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) (1964), to obtain judicial review of the determination by the Secretary of Health, Education and Welfare that he was not entitled under the Act to either a period of disability or disability insurance benefits. See 42 U.S.C. §§ 416(i), 423. The district court granted summary judgment in favor of the Secretary and Herridge appeals. We affirm.
The disability claimant seeking to overcome an adverse determination by the Secretary on the merits of his claim faces a difficult task in the federal courts. In cases such as this, the function of the trial and appellate courts "is not to re-weigh the evidence but to determine whether there is substantial evidence to support the Secretary's decision." Brown v. Finch, 429 F.2d 80, 82 (5th Cir. 1970). The Secretary is not required to show that some job exists for which a disability claimant would be hired. The burden is on the claimant to prove his disability. If there is substantial evidence that jobs exist in the economy that the claimant could perform the Secretary's denial of benefits must be affirmed. Jackson v. Richardson, 449 F.2d 1326, 1330 (5th Cir. 1971).
At the hearing Herridge was not represented by counsel although the Hearing Examiner fully advised him of his rights in this regard prior to the hearing. Herridge testified in his own behalf and informed the Hearing Examiner that he had requested his former job supervisor to come to the hearing to testify. However the supervisor did not appear at the hearing. The only other witness at the hearing was Dr. William Giddens who testified as a medical witness on the basis of the medical exhibits in the case. A vocational expert was also summoned to the hearing, but after the medical testimony the Hearing Examiner deemed the vocational testimony unnecessary.
The evidence indicated that Herridge was 48 years old, has never had any formal schooling and is unable to read or write. He served in the Air Force, working principally as a truck driver. His work history consists primarily of driving trucks and he has most recently been employed driving a trash truck for the City of Shreveport. In March 1969 Herridge underwent a lobectomy for cancer of the lung. Approximately onehalf of his right lung was removed. Herridge claims that he has been unable to engage in substantial gainful activity since January 1969 because of the pain and shortness of breath caused by the removal of part of his lung and because of a ruptured disc.
The Hearing Examiner's decision, adopted by the Secretary, found that although Herridge suffers discomfort while driving the City trash truck, the discomfort is typical of patients who have undergone this kind of surgery and is reasonably tolerable by claimant and does not prevent his working at his previous work for the City of Shreveport. Because the...
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...not establish a disability. Plaintiff must also show preclusion from engaging in any substantial gainful employment. Herridge v. Richardson, 464 F.2d 198 (5th Cir.1972); Ratliff v. Richardson, 445 F.2d 440 (5th Cir. 1971). Title 42 U.S.C. § 423(d)(2) provides that one's physical or mental i......
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