McLamore v. Weinberger
| Decision Date | 05 April 1976 |
| Docket Number | No. 75-1511,75-1511 |
| Citation | 538 F.2d 572 |
| Parties | Joseph E. McLAMORE, Appellee, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Frederic D. Cohen, Atty., Appellate Section, Civ. Div., U. S. Dept. of Justice, Washington, D. C. (Rex E. Lee, Asst. Atty. Gen., Washington, D. C., John K. Grisso, U. S. Atty., Columbia, S. C., and Leonard Schaitman Atty., Appellate Section, Civ.Div., U. S. Dept. of Justice, Washington, D. C., on brief), for appellant.
J. Marvin Mullis, Jr., Columbia, S. C., for appellee.
Before CLARK, * Supreme Court Justice, Retired, HAYNSWORTH, Chief Judge, and BOREMAN, Senior Circuit Judge.
In a final decision, the Secretary of H.E.W. denied Social Security disability benefits to Joseph E. McLamore. Subsequently, McLamore sought review of the decision in district court pursuant to 42 U.S.C. § 405(g) (1970). The district court concluded that the record failed to support the Secretary's denial of benefits and granted summary judgment for McLamore. The Secretary appeals from the summary judgment.
The question presented on appeal is whether the Secretary can discharge his affirmative burden of establishing claimant's capacity to perform alternative jobs without introducing the testimony of a vocational expert. Finding substantial evidence in the record to support the Secretary's decision, we reverse the district court and remand with direction to enter judgment for the Secretary.
It is not disputed that McLamore presented a prima facie case of disability. His testimony at the hearing and his medical history demonstrate a back injury which prevented him from performing his customary occupation. His prior occupation was that of a general laborer.
In October 1972, McLamore first became unable to work due to sharp pains in his back, pain in his right hip and tightness in his leg muscles. Medical records disclosed that prior to the onset of his alleged disability, he had experienced minor problems with his back which resulted in a 5% functional impairment of the back. On December 20, 1972, Dr. C. B. Rush felt the claimant was totally disabled and estimated the duration of his disability as six months. On December 6, 1973, two weeks after the oral administrative hearing, Dr. Rush reported McLamore's chronic lower back condition prohibited his performance of normal manual labor.
Under Taylor v. Weinberger, 512 F.2d 664 (4th Cir. 1975), and authorities cited therein, once McLamore established his prima facie case, the burden of going forward shifted to the Secretary. The Secretary shoulders a two-fold burden under 42 U.S.C. § 423(d)(2)(A). First, he must show that claimant, considering his age, his education, his work experience, his skills and his physical shortcomings, has the capacity to perform an alternative job. Second this job must be shown to exist in the national economy. Only the first prong is at issue here.
The Secretary presented substantial evidence to sustain the administrative judge's finding that McLamore is capable of engaging in substantial gainful activity of a light and sedentary nature. First, there was the factor of McLamore's age. He was young, twenty-six at the onset of his alleged disability, and is...
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