Reyes Robles v. Finch

• Citation: 409 F.2d 84
• Decision Date: 01 April 1969
• Docket Number: No. 7211.,7211.
• Parties: Pedro REYES ROBLES, Plaintiff, Appellee, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

409 F.2d 84 (1969)

Pedro REYES ROBLES, Plaintiff, Appellee, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant, Appellant.

No. 7211.

United States Court of Appeals First Circuit.

March 25, 1969.

As Amended April 1, 1969.

Morton Hollander, Atty., Dept. of Justice, with whom Edwin L. Weisl, Jr., Asst. Atty. Gen., Carl Eardley, Acting Asst. Atty. Gen., William Kanter, Atty., Dept. of Justice and Francisco A. Gil, Jr., U. S. Atty., were on brief, for appellant.

Harvey B. Nachman, San Juan, P. R., with whom Nachman, Feldstein, Laffitte & Smith, San Juan, P. R., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

This is an appeal by the Secretary of Health, Education and Welfare from a district court order refusing to grant his motion for summary judgment and granting claimant-appellee's motion for summary judgment awarding him "a period of disability and the corresponding disability benefits * * *." Robles v. Gardner, 287 F.Supp. 200, 207 (D.P.R. 1968). Appellee contends that he has been unable to work since 1964 because of an accident which aggravated a condition of his left arm and hand which had existed, following an operation some ten or twelve years ago.

The district court has twice considered this matter. In its first opinion the court, without specifically reversing the Secretary's finding that appellee was not disabled within the meaning of the statute, 42 U.S.C. § 423(d) (1) (A) (1969 Supp.), remanded the case to the Secretary "in order that he make specific findings as to the availability and opportunity for employment of a person with the physical handicaps, education and experience of the Plaintiff." Robles v. Gardner, 259 F.Supp. 78, 81 (D.P.R. 1966). Unable then to prosecute his appeal for want of appellate jurisdiction, the Secretary on remand again found that appellee was not disabled, but, pursuant to court mandate, made vocational inquiries and found that employment opportunities existed for him in Puerto Rico. In its second opinion the district court refused to accept both findings. It concluded "that the plaintiff has a disability within the meaning of the statute", Robles v. Gardner, supra, 287 F. Supp. at 203, held that the hearing examiner's finding that several jobs were available to appellee in Puerto Rico was not supported by substantial evidence, and granted summary judgment for the claimant-appellee.

The question posed to the district court by the cross motions for summary judgment was whether or not the Secretary's denial of disability was supported by substantial evidence. Rials v. Ribicoff, 207 F.Supp. 904, 905 (W.D. Ky.1962); cf. Ledbetter v. Celebrezze, 324 F.2d 735 (5th Cir. 1963). We deem ourselves compelled to reverse. The district court's concern for the injured individual who seeks disability is understandable. But courts are circumscribed both as to the reach of the Social Security statutes regarding disability and as to the scope of review of agency action. As to the protection afforded by these statutes, they are not an ancillary unemployment compensation device. And as to the scope of court review, "substantial evidence" is a stringent limitation. Applying this limitation we conclude that the district court erred both at the intermediate stage when, not disagreeing with the Secretary's finding as to appellee's ability to work,¹ it elevated the vocational issue to the status of a threshold inquiry, and in its final holding that appellee "has a disability within the meaning of the statute". Robles v. Gardner, supra, 287 F.Supp. at 203.

The burden rests on the claimant to establish that he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. §§ 416(i) (1), 423(d) (1) (A) (1969 Supp.). See 42 U.S.C. § 423(d) (5) (1969 Supp.); 20 C.F.R. §§ 404.1502(b), 404.1510(a); Walters v. Gardner, 397 F.2d 89 (6th Cir. 1968)). Only when a claimant shows that he is not able to return to his former work is there a necessity for an administrative showing of available work. Torres v. Celebrezze, 349 F.2d 342, 345 (1st Cir. 1965). See also May v. Gardner, 362 F.2d 616, 618 (6th Cir. 1966); Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965); 42 U.S.C. § 423(d) (2) (1969 Supp.).

In this case the state of the evidence as to appellee's ability to work is as follows. We note initially that appellee was unable to produce a report from the doctor who originally operated on his arm, that he failed to produce evidence of advice allegedly given him by a doctor in 1964 to stop working, and that he failed to produce any medical assessment of his left arm prior to 1964 to serve as a comparative basis. On the other hand, there was not only lay evidence of a continuing ability to work,² but also medical reports which, while admittedly not indicating that appellee had free use of his left arm, failed to reveal any recent deterioration.³ Finally, the Secretary made credibility findings which had substantial record support.⁴

It is apparent from the district court's second opinion that it bottomed its finding regarding recent deterioration on the uncontradicted testimony of the appellee as aided by the report of Dr. Portalatin.⁵ This assumes, however, that the Secretary was bound to accept as credible the almost entirely subjective testimony of appellee. While the Secretary could have accepted such testimony, he was not obliged to do so. Indeed if a claimant could, as a matter of law, overcome the effect of what would otherwise be substantial evidence of continued ability to work by his own testimony as to his condition, the Secretary would rarely if ever be justified in denying benefits.

So holding, we do not reach the issue of record support for the Secretary's finding, which remand required him to make, that appellee could find gainful employment.

Reversed and remanded to the District Court with the direction that summary judgment be entered for the Secretary.

1 Although the district court, in its first opinion, stated that "the medical evidence submitted shows that, at best, Plaintiff is almost totally disabled, as far as his left arm is concerned", it then observed:

"The Secretary found that Plaintiff could still work at the previous jobs he had had. This is very fine; but, the Secretary does not examine the facts as to what the availability of employment of this type of work is in the community in which Plaintiff is now residing." Robles v. Gardner, supra, 259 F.Supp. at 81.

We can only view the court's statements as indicating that the Secretary had not completed his inquiries rather than that the finding made...