Markham v. Califano, No. 78-1960

• Decision Date: 05 July 1979
• Docket Number: No. 78-1960
• Parties: Anita MARKHAM, Plaintiff-Appellant, v. Joseph A. CALIFANO, Jr., Secretary of the United States Department of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 533

601 F.2d 533

Anita MARKHAM, Plaintiff-Appellant, v. Joseph A. CALIFANO, Jr., Secretary of the United States

Department of Health, Education and Welfare,

Defendant-Appellee.

No. 78-1960.

United States Court of Appeals, Tenth Circuit.

July 5, 1979.

Bruce M. Plenk, Utah Legal Services, Inc., Salt Lake City, Utah, for plaintiff-appellant.

Ronald L. Rencher, U. S. Atty., and James R. Holbrook, Asst. U. S. Atty., Salt Lake City, Utah, for defendant-appellee.

Before PICKETT, McWILLIAMS and DOYLE, Circuit Judges.

PICKETT, Circuit Judge.

On August 5, 1974, Anita Markham filed applications for total disability insurance benefits since May, 1969, under Title II of the Social Security Act, 42 U.S.C. § 401, et seq., and for supplemental security income benefits under Title XVI of the Act. The claims alleged that the applicant was disabled within the meaning of the Act due to an "arthritic neck, back, wrists, feet and hands." The Secretary denied the claim for disability insurance benefits, but the claim for supplemental security income benefits was allowed. After exhausting administrative remedies, ¹ the claimant, as authorized by 42 U.S.C. § 405(g), filed suit in the United States District Court for the District of Utah for a review of the Title II disallowance. The District Court found that the decision of the Secretary was supported by substantial evidence, and affirmed. We agree with that decision.

42 U.S.C. § 423(d)(1)(A) of Title II of the Social Security Act provides that an insured claimant, to be entitled to disability insurance benefits, must establish inability to engage in any substantial gainful activity by reason of medically determinable physical or mental impairment for a period of at least one year. Alexander v. Richardson, 451 F.2d 1185 (10th Cir. 1971), cert. denied, 407 U.S. 911, 92 S.Ct. 2437, 32 L.Ed.2d 685 (1972). In Hill v. Califano, No. 78-1235, an unpublished decision filed May 30, 1979, this court held that substantial gainful activity means performance of substantial services with reasonable regularity, either in competitive or self employment. It was also noted in the Hill case that "(a) person may be disabled from emotional problems as well as those which are physical."

Ability to drive an automobile, participate in some community affairs, attend school, or to do some work on an intermittent basis does not necessarily establish that a person is able to engage in a "substantial gainful activity," but such activities may be considered by the Secretary, along with medical testimony, in determining the right of a claimant to disability payments under the Act. Hill v. Califano, supra; Yawitz v. Weinberger, 498 F.2d 956 (8th Cir. 1974); Rivas v. Weinberger, 475 F.2d 255 (5th Cir. 1973). 42 U.S.C. § 405(g) provides that the finding of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Valentine v. Richardson, 468 F.2d 588 (10th Cir. 1972). In Gainey v. Flemming, 279 F.2d 56, 58 (10th Cir. 1960), we said:

. . . Neither the district court in the first instance nor a court of appeals on appeal is free to substitute its findings of fact or its inferences drawn from the evidence for those of the referee which later become the basis of the final decision of the secretary if the findings and inferences of the referee are supported by substantial evidence.

The Perales case, Supra 402 U.S. at 401, 91 S.Ct. at 1427, defines "substantial evidence" as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

The administrative law judge found that the claimant last met the statutory earnings requirement of Title II of the Social Security Act on June 30, 1974. The claimant does not question this as the final date of her insured status under the Act; consequently, her right to recovery must precede that date. In his discussion of the evidence, the administrative law judge stated that "(t) here is no evidence in the file showing that the claimant was unable to engage in substantial gainful activity on or before June 30, 1974 when she last met the earnings requirements." Specifically, it was found that "(t)he claimant is not entitled to disability insurance benefits under the Act as the onset of her disability did not begin within the period when the claimant met the statutory earnings requirements." The only issue involved in this appeal is whether the finding as to when the applicant became disabled is supported by substantial evidence. In determining the claimant's disability for Title XVI purposes, the administrative law judge found that due to "physical and mental impairments" she was disabled as of June, 1975. Claimant contends that a fair analysis of the record establishes that the disability relates back to a time when her Title II insurance was in effect.

When the claim was filed, Mrs. Markham was forty-seven years of age, the mother of three children, two of whom were living with her. She was separated from her husband, who did not contribute to the support of the family. Her work history disclosed that prior to 1957 she had been employed at various times as a secretary, bookkeeper, cashier, hostess and sales clerk. Between the years 1957 and 1969 she worked in the Los Angeles, California, area as an actress in the motion picture and television industries. In 1967, she was injured in an automobile accident, which apparently was the beginning of her arthritic problems. She was last employed in 1969. In her testimony before the administrative...