Kraemer v. Sullivan, 89-3116

• Decision Date: 25 July 1989
• Docket Number: No. 89-3116,89-3116
• Citation: 885 F.2d 206
• Parties: , Unempl.Ins.Rep. CCH 14953A Charles E. KRAEMER, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., 1 Secretary, Health and Human Services, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 206

885 F.2d 206

27 Soc.Sec.Rep.Ser. 78, Unempl.Ins.Rep. CCH 14953A

Charles E. KRAEMER, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., ¹ Secretary, Health and Human Services, Defendant-Appellee.

No. 89-3116

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

July 25, 1989.

Robert H. Urann, Gardner, Robein & Urann, Metairie, La., for plaintiff-appellant.

Marguerite Lokey, John M. Gough, Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, KING, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Plaintiff Charles E. Kraemer challenges the denial of social security disability benefits by the Secretary of Health and Human Services. Because we find that the determination that plaintiff is not disabled within the meaning of the Social Security Act is supported by substantial evidence, we affirm.

I.

Kraemer is a fifty-nine-year-old former insulator. He has a general equivalency diploma (GED) and has taken some college courses. After working for twenty-five years, Kraemer discontinued his employment because of health problems related to long-term exposure to asbestos fibers.

On April 1, 1986, Kraemer applied for social security disability insurance benefits, alleging disability resulting from asbestosis. After his application was denied, a hearing before an administrative law judge ("ALJ") was held on May 18, 1987. At the hearing, Kraemer testified that he was hospitalized after having a stroke and a massive hemorrhage. ² He claimed that he was experiencing dizzy spells once a day and that he was tired and often short of breath. He was hospitalized in 1985 and again in 1987 as a result of severe back pains. He reported ongoing stiffness in his back that required him to stand periodically to relieve the stiffness.

In January and April 1986, Kraemer was examined by his physician, Dr. Velazquez, who concluded that he was having no symptoms and that his condition was stable. However, after a subsequent physical-capacities evaluation in July 1986, Dr. Velazquez concluded that Kraemer could not sit, stand, or walk for more than one hour at a time, or for no more than four hours in an eight-hour period. He also determined that Kraemer could not lift or carry weight over twenty-five pounds and could not bend, squat, crawl, climb, or reach. He further suggested that Kraemer be restricted from exposure to dust, fumes, or gases.

Despite Kraemer's own testimony to the contrary and Dr. Velazquez's recommendations, a vocational expert present at the hearing testified that Kraemer had the capacity to perform medium-level work. The expert testified that Kraemer would be able to work as a janitor, maintenance man, delivery man, awning installer, or a signaler. If Kraemer were restricted to performing only light work, the vocational expert determined that Kraemer could still work as an optical lens assembler.

In April 1986, Kraemer was examined by Dr. Brooks Emory, who determined that his pulmonary function studies showed only mild impairment. Dr. Sheldon Hersh also examined Kraemer in May 1986, reporting that his blood pressure was under control, his neurological examination was normal, and he had no chest pain or dyspenic. The doctor further determined that a pulmonary examination revealed no serious problems.

In his decision of September 11, 1987, the ALJ concluded that Kraemer was not disabled. On November 27, 1987, the appeals council denied Kraemer's request for review of the ALJ's decision, and Kraemer sought review in district court. A magistrate recommended that the Secretary's motion for summary judgment be granted. The district court accepted this recommendation and granted judgment in favor of the Secretary. This appeal followed.

II.

The Secretary's determination must be affirmed if it is supported by substantial evidence and based upon a correct view of the law. Brown v. Bowen, 864 F.2d 336, 338 (5th Cir.1988); Hollis v. Bowen, 837 F.2d 1378, 1382 (5th Cir.1988). "Substantial evidence means more than a scintilla, less than a preponderance, and is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir.1988) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir.1983)).

The claimant has the initial burden of proving that his disability has prevented him from engaging in any substantial activity. Abshire, 848 F.2d at 640. The burden then shifts to the Secretary to show that the claimant is not disabled and is capable of employment. Id. In determining whether a claimant is disabled, the ALJ must apply a five-step sequential evaluation procedure:

1. An individual who is working and engaging in substantial gainful activity will not be found disabled regardless of the medical findings.

2. An individual who does not have a "severe impairment" will not be found to be disabled.

3. An individual who meets or equals a listed impairment in Appendix 1 of the regulations will be considered disabled without consideration of vocational factors.

4. If an individual is capable of performing work he has done in the past, a finding of "not disabled" must be made.

5. If an individual's impairment precludes him from performing his past work, other...