Martin v. Finch, 27622 Summary Calendar.

• Decision Date: 02 September 1969
• Docket Number: No. 27622 Summary Calendar.,27622 Summary Calendar.
• Parties: Rayfield MARTIN, Plaintiff-Appellant, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

415 F.2d 793 (1969)

Rayfield MARTIN, Plaintiff-Appellant, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 27622 Summary Calendar.

United States Court of Appeals Fifth Circuit.

September 2, 1969.

Guy C. Faggard, Pascagoula, Miss., Albert Sidney Johnston, Jr., Biloxi, Miss., for appellant.

Robert E. Hauberg, U. S. Atty., E. Donald Strange, Asst. U. S. Atty., Jackson, Miss., Robert M. Heier, Kathryn H. Baldwin, Attys., U. S. Dept of Justice, William D. Ruckelshaus, Asst. Atty. Gen., Washington, D. C., for appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

AINSWORTH, Circuit Judge:

Rayfield Martin 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 the Department of Health, Education and Welfare that Martin was not entitled under the Act to either a period of disability or disability insurance benefits.¹ See Social Security Act §§ 216(i), 223, 42 U.S.C. §§ 416(i), 423 (1964), as amended (Supp. IV, 1969). The Secretary denied Martin's claim on the grounds that Martin's "diagnosed impairments, either singularly or in combination, did not preclude him from performing his usual occupation," and that Martin "was not precluded from engaging in substantial gainful activity by an impairment * * *." Section 205(g) of the Act provides in part that "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * *." 42 U.S.C. § 405(g) (1964). The function of this Court, therefore, "is not to re-weigh the evidence but to determine whether there is substantial evidence to support the Secretary's decision." Rome v. Finch, 5 Cir., 1969, 409 F.2d 1329, 1330; Labee v. Cohen, 5 Cir., 1969, 408 F.2d 998. The District Court granted summary judgment in this case in favor of the Secretary. We agree with the District Court that there is substantial evidence in the agency record which supports the Secretary's finding of no "disability," as that term is now defined in sections 216(i) and 223(d) (1)-(3) of the Social Security Act, 42 U.S.C. §§ 416(i), 423(d) (1)-(3) (Supp. IV, 1969). Therefore, we affirm the judgment.

Martin, who is fifty-two years old, claims that he is unable to engage in "any substantial gainful activity" because of the numerous impairments from which he suffers. These impairments, Martin states, include nosebleeds when he works, chronic back sprain, traumatic arthritis, and hypertension. Other than the claimant's own self-serving testimony respecting the existence of these impairments, only the reports of a Dr. Morris, Martin's personal physician, tend to substantiate the claim of disability. Dr. Morris was of the opinion that Martin's hypertension, in combination with his back condition, left the claimant unable to work. The Secretary rejected the diagnosis of hypertension, however, on the ground that "it is totally unsupported by acceptable findings." See 20 C.F.R. §§ 404.1524,- .1526 (1969) (Social Security Administration regulations pertaining to medical evidence of, and conclusion by physician regarding, a claimant's disability.) Instead the Secretary found that Martin suffers from minimal osteoarthritis and the residuals of a medial menisectomy to the right knee, "neither of which has resulted in any significant dysfunction of the musculoskeletal system." These findings were based upon the reports of two doctors who, in addition to Dr. Morris, examined Martin. As the District Court concluded, these two "competent doctors who examined plaintiff indicated that in their opinion he was able to work. One of these doctors, Dr. Enger, a highly qualified orthopedic surgeon, had treated the plaintiff for one of the conditions on which he relied to establish disability. Surely his diagnosis is entitled to great weight."

When we view the medical testimony in the light most favorable to Martin, see Labee v. Cohen, 5 Cir., 1969, 408 F.2d 998, 1000, we find substantial evidence that Martin is, as the Secretary concluded, "in remarkably good condition for his age." We do not disregard the opinion of Dr. Morris. This opinion, however, at best presents merely a conflict in the evidence which the Secretary resolved against Martin. See Green v. Gardner, 5 Cir., 1968, 391 F.2d 606, 607. That the medical evidence is conflicting does not entitle a claimant to either a period of disability or disability insurance benefits.

Martin argues before this Court that his stated inability to find work is evidence that he is unable to engage in "any substantial gainful activity." Within the context of this case, this argument is devoid of merit. Since Martin's claim was pending before the Secretary on January 2, 1968, the amendments to sections 216(i) and 223 of the Social Security Act which became effective on that date are applicable to...