Johnson v. Harris

• Decision Date: 03 March 1980
• Docket Number: No. 79-3101,79-3101
• Citation: 612 F.2d 993
• Parties: Percy JOHNSON, Plaintiff-Appellant, v. Patricia Roberts HARRIS, Secretary of Health and Human Resources, Defendant-Appellee. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 993

612 F.2d 993

Percy JOHNSON, Plaintiff-Appellant, v. Patricia Roberts HARRIS, Secretary of Health and Human Resources, Defendant-Appellee.

No. 79-3101

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

March 3, 1980.

Mary Ellen Felps, Austin, Tex., for plaintiff-appellant.

Hugh P. Shovlin, Asst. U. S. Atty., San Antonio, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before BROWN, TJOFLAT and FRANK M. JOHNSON, Jr., Circuit Judges.

PER CURIAM:

The issue of this appeal is whether the District Court erred in granting a summary judgment affirming the finding of an Administrative Law Judge (ALJ) that the Appellant was not disabled within the meaning of Sections 416(i)(1) and 423(d)(1)(A) of the Social Security Act and thus was not entitled to disability insurance benefits. We hold that the Administrative Law Judge did not have sufficient evidence on which to base his finding, and the District Court erred in granting summary judgment affirming this finding. Therefore, we reverse and remand.

The Appellant, Percy Johnson, is a fifty-nine year old man with a fifth grade education who was formerly employed as a heavy equipment operator but has not worked since November 9, 1976. After a medical examination on March 3, 1977, the Veterans Administration (VA) classified Johnson as disabled due to degenerative disease at multiple levels of the cervical spine. Johnson received $199 a month from that agency as disability compensation. This is his only source of income.

On May 9, 1977, the claimant filed an application with the Social Security Administration (SSA) for disability insurance benefits, claiming that he was disabled due to constant pain in his head, back and arms. This application was denied initially and upon reconsideration by the Office of Disability Operations of the SSA. A hearing on the claim was held on November 30, 1977, before the ALJ who found that Johnson was not entitled to Social Security disability benefits. This decision was approved by the Secretary of Health, Education and Welfare on March 29, 1978. Johnson then filed suit in the Western District of Texas pursuant to § 205(g) of the Act, 42 U.S.C. § 405(g) (1974). The SSA's motion for summary judgment, affirming the finding of the ALJ, was granted by the District Court, and Johnson's motion for rehearing was denied. Now he appeals.

I. The Evidence Presented At The Hearing

The evidence at the hearing before the ALJ revealed that Johnson has undergone surgery several times. In 1945, he had an operation on a ruptured tendon in his right forearm. He underwent surgery again in 1965 for the removal of two discs and the fusion of his lumbar spine. In 1968, a windmill fell on him, breaking his neck. A bone graft at the C-5 and 6 levels of the cervical spine was required. Ever since this operation he has worn a cervical collar to support his neck. At the time of his initial application for social security benefits, he was having traction with a twenty pound weight three times a day, but is unclear from the record whether he still requires this treatment.

On November 9, 1976, Johnson entered the Veterans Administration Clinic complaining of severe abdominal pain. A perforated duodenal ulcer, which was closed, and an ulcer crater at the greater curvature of the stomach were discovered and treated with antacids. On a second visit to the VA Clinic on April 29, 1977, a gastric ulcer with a second lesion was discovered but was determined not to require surgery.

At the hearing Johnson testified that he is not able to stand, sit, or lie down in one position for long periods of time. Therefore, he is unable to sleep well at night, never getting more than five or six hours of sleep a night. He is able to take care of his personal needs, such as bathing, shaving and dressing himself. However, he has trouble keeping his right arm raised for any length of time because he gets cramps in his forearm.

He is able to go to the grocery store with his wife, but often has to sit in the car and wait for her because he cannot stand to walk too long. He is able to drive very short distances, but not as far as eighteen miles to his church. He can walk only two or three blocks without resting. He takes pills for the pain in his back two or three times a day. He also takes antacids for his ulcers.

There was no testimony given by any medical experts at the hearing. Among the numerous exhibits introduced was a SSA medical disability determination dated June 8, 1977, which states that Johnson did have "some degenerative arthritic changes of the cervical spine," but that there was no other evidence of back injury. This condition was determined not to amount to disability. Another disability determination of July 21, 1977, described Johnson's ulcers as a severe impairment but, with proper medical management, not considered to persist for twelve consecutive months. Therefore, they were not considered disabling either. On appeal, Johnson attacks these reports as insufficient because he claims the physicians who wrote them never even examined him.

At the hearing, a vocational expert testified that Johnson's former job as a heavy equipment operator was classified by the Dictionary of Occupational Titles as a job which requires a medium range of work activity, the lifting, pushing or pulling of not more than fifty pounds.

The ALJ then posed a hypothetical question to the vocational expert:

Question: All right, now then, disregarding completely any mental or physical impairment which the claimant may have or be found to have, what transferable skills, if any, does he have that could be utilized in the work of a lighter nature than his former work as a heavy equipment operator?

Answer: For example, an individual that has reading comprehension of Mr. Johnson's age would be able to work at positions such as a watchman these are jobs where we're not talking about carrying guns for high security, but basically individuals that might work in a building or in a parking lot, give directions and do check people in and out of the building or a parking lot. Another one would be involved with, as toll collector, and these are jobs that are typically classified locally as a parking lot attendant, where you're taking money and making change when a person comes in and out of a parking lot. The third example would be that as a person that's working as a buffer or polisher in the jewelry business, just cleaning rings, snapping sets out of old rings, such as an art carved diamonds that's an industrial type of setting, I'm not talking about locally in a small jewelry store but in an industrial manufacturing setting.

But the expert qualified his answer:

Now the question that the judge posed to me was that if you have no physical problems.

And if in his review of the records he finds that the physical problem is such that you're unable to operate a vehicle, then that job is thrown aside, it's inappropriate as an answer.

This was the end of the hearing.

II. The Sufficiency Of The Evidence

The burden of a claimant to establish disability under the Act, 42 U.S.C §§ 416(i)(1) & 423(d)(2)(A) (1974) is a very heavy one. Indeed, it is so stringent that it has been described as bordering on the unrealistic. Williams v. Finch, 440 F.2d 613, 615 (5th Cir. 1971) (Ainsworth, J.). Not only must the claimant show that he has a medically determinable physical or mental impairment which has lasted or is suspected to continue for twelve months, he also must prove that he cannot find "substantial gainful work which exists in the national economy, regardless of whether * * * he would be hired if he applied for (such) work." 42 U.S.C. § 423(d)(2)(A).

Despite the stringency of this test, the District Court can reverse a finding of the SSA adverse to a claimant only if it is not supported by substantial evidence. 42 U.S.C. § 405(g) (1974). The reviewing court may not reweigh the evidence nor substitute its judgment for that of the Secretary. Laffoon v. Califano, 558 F.2d 253, 254 (5th Cir. 1977); Goodman v. Richardson, 448 F.2d 388, 389 (5th Cir. 1971). The scope of our review on this appeal is also limited. We only may question whether the District Court was correct in concluding that there was substantial evidence on which to base the finding of the ALJ.

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.' " NLRB v. Columbian Enameling and Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660, 665 (1939), Quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126, 140 (1938).

The reviewing Court must look at all evidence as a whole and take into consideration

(1) objective medical facts or clinical findings; (2) diagnoses of examining physicians; (3) subjective evidence of pain and disability as testified to by the claimant and corroborated by his wife, other members of his family, his neighbors and others who have observed him; and (4) the claimant's age, education and work history.

DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972).

A claimant for social security disability benefits has the burden of proving his disability under the Act. He "must show that he suffers from a mental or physical impairment that not only renders him unable to perform his previous work but, given his age, education, and work experience, prevents him from engaging 'in any other kind of...