Olson v. Schweiker, 81-1188

• Decision Date: 11 December 1981
• Docket Number: No. 81-1188,81-1188
• Citation: 663 F.2d 593
• Parties: Jack E. OLSON, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary, Department of Health and Human Services, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 593

663 F.2d 593

Jack E. OLSON, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary, Department of Health and Human Services, Defendant-Appellee.

No. 81-1188

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Dec. 11, 1981.

Stephen L. Olson, Oklahoma City, Okl., for plaintiff-appellant.

Martha Joe Stroud, Asst. U. S. Atty., Dallas, Tex., for defendant-appellee.

Appeal From the United States District Court for the Northern District of Texas

Before GEE, GARZA and TATE, Circuit Judges.

GARZA, Circuit Judge.

In October 1978, Jack Olson filed an application for disability insurance benefits with the Social Security Administration on the basis of a condition which he claimed had prevented him from working since August 30, 1975. The shoulder, hip, ankle, and neck problems of which the claimant complained, a condition known as osteoarthritis, prohibited him from engaging in any type of gainful employment. Medical reports also indicated claimant suffered from ulcers and gout. After this application was denied claimant requested a hearing on his claim. This hearing was conducted before an Administrative Law Judge (ALJ) on September 18, 1979. ¹ The ALJ denied disability benefits on two grounds. With regard to the majority of the medical evidence which was dated before claimant's previous benefit denial, the ALJ held this testimony to be merely cumulative of the evidence submitted in the earlier case. For this reason, he ruled claimant had not presented the new and material evidence required to warrant reopening that decision. ² The evidence of disability after that date was considered in a different light. This evidence was examined independently to determine whether claimant's condition in the years of 1978 and 1979 was of such severity that he was disabled and unable to engage in any employment. On this second issue, the ALJ found claimant had failed to prove that he was disabled. While acknowledging that claimant suffered periodic attacks of arthritis, he found that claimant had the residual capacity to work at a sedentary job. Claimant sought judicial review of the benefit denial in federal district court. After considering both parties' motion for summary judgment, the district judge affirmed the decision of the Secretary. It is from this decision that claimant appeals.

Plaintiff traces his physical problems back to injuries sustained in World War II. These injuries resulted in a condition which the Veterans Administration (VA) judged to warrant a 40% disability rating. Upon discharge in 1945, he was granted service-connected disability payments. He voluntarily renounced these payments in 1955, when he advised the Veterans Administration that he was financially able to care for himself. Plaintiff has engaged in a variety of occupations since that time but his primary expertise is in the fields of automobile and real estate sales. He was employed by a Ford dealership at the time his serious medical problems began. He worked sporadically from 1972 to 1975, but has been unable to work at all since that time.

The only question before this court is whether the findings of the Secretary, as to any facts, are supported by the substantial evidence. In a case such as this, where appeal is taken from a summary judgment determination in favor of the Secretary, the review function of the circuit court is akin to that of a district court. Review must be made independently and without the assumption that the district court acted correctly. McDaniel v. Harris, 639 F.2d 1386, 1388 (5th Cir. 1981). However, as to review of the decision of the ALJ, it is not the function of this court to try the case de novo or reweigh the evidence. Instead, we are limited to determining whether there is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Gaultney v. Weinberger, 505 F.2d 943, 945 (5th Cir. 1974), quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1970).

It is axiomatic that the burden rests on claimant to prove that he suffers from a disability as defined by the Social Security Act, 42 U.S.C. § 423. Disability is defined by the statute as "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). It is not enough that claimant simply be unable to perform the type of work in which he was previously engaged. He must demonstrate that he is unable to perform any type of gainful employment available in the national economy. The inquiry is not whether claimant is able to obtain work but whether he is able to engage in any vocation. Brown v. Finch, 429 F.2d 80 (5th Cir. 1970).

Much of the testimony which was given at the hearing on the most recent application by claimant was in fact information which had been considered when his previous two applications were processed. There is no reason, therefore, to delve into this information. However, there was also some new testimony given at the hearing before the ALJ and it is this information that must be the subject of our consideration.

One occurrence on which claimant places high importance is the revocation of his driver's license for medical reasons which occurred in 1978. This action came about after claimant went to a Department of Public Safety (DPS) station to change the address on his driver's license. He was spotted by a DPS officer who requested that he produce his driver's license. Subsequently, he received notification that his driver's license had been suspended and a temporary license issued. The Texas Department of Health then determined that claimant was physically unable to safely operate an automobile and Judge George A. Patzig revoked his license. The ALJ did consider the driver's license revocation in his decision, but did not consider it important because he found there were many jobs for which claimant was qualified which did not require him to drive an automobile. It is the view of this Court, however, that the claimant must have been suffering badly for the DPS officer to have noticed him initially. This fact is not mentioned by the ALJ.

It is settled law that pain itself may be enough to justify an award of disability benefits, whether or not the pain can be medically documented by symptoms. Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979). In holding that claimant is not disabled and has the residual capacity for sustained work activity, the ALJ stresses that one V.A. report which claimant submitted which indicated that he was not on narcotics "would contraindicate the existence of severe pain." However, this finding overlooks the medical report of Dr. Bragg dated February 22, 1979, which states, in relevant part, "The patient is sensitive to all medications except Tylenol. The patient is allergic to Morphine, Demerol, Codeine, and Penicillin." This court recently stated, in Scharlow v. Schweiker, 655 F.2d 645 (5th Cir. Sept. 8, 1981), that failure of the ALJ to make credibility findings about claimant's allegations of pain required reversal and remand of the cause. It follows that a credibility choice based on misinterpretation of medical records mandates identical action.

Based on similarly shaky terrain is the ALJ's finding that there are many jobs for which claimant is still qualified. It is clear that...