Smith v. Schweiker

• Decision Date: 04 June 1981
• Docket Number: No. 79-3615,79-3615
• Citation: 646 F.2d 1075
• Parties: Curtis H. SMITH, 462-56-2584, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1075

646 F.2d 1075

Curtis H. SMITH, 462-56-2584, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human

Services, Defendant-Appellee.

No. 79-3615.

United States Court of Appeals, Fifth Circuit.

Unit A

June 4, 1981.

Chapman, Tinsley & Reese, Carlyle H. Chapman, Jr., Dallas, Tex., for plaintiff-appellant.

William L. Johnson, Jr., Asst. U. S. Atty., Fort Worth, Tex., Charles F. Sandoval, Asst. U. S. Atty., Albuquerque, N. M., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before BROWN, COLEMAN and GEE, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

Appellant, Curtis H. Smith, attacks a decision of the Secretary of Health and Human Services (Secretary) terminating as of November 1977, his Social Security Disability Insurance Benefits and Supplemental Security Income pursuant to 42 U.S.C.A. § 405(g), as amended, and 42 U.S.C.A. § 1383(c), as amended. These benefits had previously been awarded Smith based upon a finding of "disability" which had commenced on May 23, 1974, following a car/tractor accident in which Smith had sustained serious neck and back injuries. The decision of the Administrative Law Judge (ALJ) which terminated Smith's "disability" status became the final decision of the Secretary following what was referred to as a "de novo" consideration of additional evidence by the Appeals Council in December of 1978. Smith sought judicial review in the District Court on January 25, 1979. On a motion for Summary Judgment, the District Court affirmed the cessation of Smith's benefits finding that (i) the proper legal standards had been employed by both the ALJ and Secretary and (ii) there was substantial evidence to support the final decision. The only real issue before this Court is whether substantial evidence reading the record as a whole supports the Secretary's final decision terminating Smith's disability as of November 1977. We hold it does not and reverse and remand.

Scrubbing Up Our Standard Of Review

Our standard of review is both provided for and limited by § 205(g) of the Social Security Act, 42 U.S.C.A. § 205(g), which states that "(t)he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive " Fruge v. Harris, 631 F.2d 1244 (5th Cir. 1980); Epps v. Harris, 624 F.2d 1267 (5th Cir. 1980); Fortenberry v. Harris, 612 F.2d 947 (5th Cir. 1980); Newborn v. Harris, 602 F.2d 105 (5th Cir. 1979); Chaney v. Califano, 588 F.2d 958 (5th Cir. 1979); Young v. Califano, 581 F.2d 549 (5th Cir. 1978); Mims v. Califano, 581 F.2d 1211 (5th Cir. 1978). Of course, no similar presumption of validity attaches to the Secretary's conclusions of law, including determination of the proper standards to be applied in reviewing claims. We are aware, of course, that we may not reweigh the evidence or substitute our judgment for that of the Secretary's. See Rhynes v. Califano, 586 F.2d 388, 390 (5th Cir. 1978); Laffon v. Califano, 558 F.2d 253 (5th Cir. 1977). This very narrow ambit of judicial review, however, does not excuse us from our responsibility to scrutinize the record in its entirety to determine whether substantial evidence does support the Secretary's findings. Flowers v. Harris, 616 F.2d 776 (5th Cir. 1980); Simmons v. Harris, 602 F.2d 1233 (5th Cir. 1979). ¹

In our search for substantial evidence we are guided, as the hearing examiners are, by consideration of (i) objective medical facts or clinical findings, (ii) diagnoses of examining physicians, (iii) subjective evidence of pain and disability as testified to by the claimant, and (iv) the claimant's age, education and work history. Johnson v. Harris, 612 F.2d 993, 997 (5th Cir. 1980); Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980); DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972). We also recall that the scheme of the act requires the claimant to carry the initial burden of establishing the existence or continued existence ² of a disability by proving that he is unable to perform his previous work. Once this is shown, the burden shifts to the Secretary to establish that there is other substantial gainful employment in the economy which the claimant can perform. If the Secretary points to possible alternative employment, the burden of persuasion then returns to the claimant to prove his inability to perform those jobs. Western v. Harris, 633 F.2d 1204 (5th Cir. 1981); Fruge, 631 F.2d at 1245; Johnson, 612 F.2d at 993.

Given these statutory requirements for showing disability, our judicially declared guidelines, and our limited scope of judicial review, we now begin our examination of the record in quest of substantial evidence.

Dissecting The Facts The Evidence Presented At The Hearing

A. Age, Education, Work Experience

Appellant Smith is presently 42 years old, married with four children and possesses a seventh grade education with no vocational or specialized training. His job experiences include grocery stock clerk, carton-packing machine operator for a milk company, unskilled sheet metal handler for a trailer manufacturer, and ranch-hand for a cattle company. In 1968, Smith was employed by Tarrant County as a heavy equipment operator where he worked until he was injured in an accident on May 23, 1974, when an automobile struck the mowing tractor which he was operating.

B. Objective Medical Facts And Clinical Findings

Smith was immediately hospitalized complaining of pain in the cervical and lumbosacral regions and the left hip, with circulatory problems occurring in the left leg. He was treated for these injuries by Dr. Issac L. Van Zandt, an internist and orthopedic surgeon in Ft. Worth, Texas. A set of back x-rays in July 1974 showed Smith to have a low back defect with a first degree spondylolisthesis a Greek term basically meaning one bone slipping onto another. By September 1974, Smith's condition had worsened and extensive spinal surgery a bilateral fusion at L4-S1 was performed in October 1974 by Dr. Van Zandt.

C. Diagnosis

Dr. Van Zandt's post-operative clinical notes indicate that Smith continued to complain of a disabling pain in the lower back radiating through the left hip area, leg and foot, despite medications, ³ injections, ⁴ physical therapy and use of a supportive girdle. By January 1976, Dr. Van Zandt notes that Smith's back condition was considerably better since the October back surgery, but that he continued to experience pain while standing, squatting, kneeling, sitting and was required to rest two-to-three hours a day. The doctor concluded that he had "probably reached a plateau" and was "not going to get any improvement in the future." (R., Vol. II at 126). At this time, Dr. Van Zandt advised Smith to seek the help of the Texas Rehabilitation Commission (TRC) for possible employment retraining.

Acting on this advice, Smith sought the assistance of the TRC in June 1976. Case worker Malone who evaluated Smith's abilities and potential capabilities, found him cooperative and willing to attempt "any assigned tasks with the best of his ability", (R., Vol. II at 379), but unable to complete tasks due to pain. ⁵ The TRC advised Smith by letter that "vocational rehabilitation services may not reasonably be expected to benefit you in terms of employment". (R., Vol. II at 187).

In July 19, 1976, Dr. Van Zandt referred Smith to Dr. Hoover in Dallas for an electromyography (EMG). These test results were "mildly abnormal" indicating a probable mild 'chronic' L-5 nerve root irritation residual on the left side residuals from the previous surgery. These findings and analysis were concurred in by Dr. Van Zandt. Consulting evaluations by Dr. Fred Sanders, ⁶ another orthopedic surgeon, and Dr. Ronald Smith, ⁷ a neurosurgeon, in March 1977, agreed with Dr. Hoover's and Dr. Van Zandt's opinions that Smith's continued pain was caused by residuals of previous surgery. A second EMG study in April 1977 substantially confirmed the diagnosis of these four doctors.

D. Subjective Evidence

These medical reports were corroborated by Smith's own subjective testimony before the ALJ in October 1977. He stated that since the 1974 accident, he had experienced constant severe pain in his back from his neck to his hips and radiating into his legs, feet and toes. The pain was so disabling that he could not engage in house or yard work, shopping, hunting, fishing or any physical activity outside of church attendance or short trips to pick up his children from school. Smith testified that he had trouble remaining in a stationary position for more than five minutes, ⁸ and that stooping, bending, stair-climbing and lifting were difficult to impossible due to pain and stiffness. Smith concluded by stating that he did not know of any eight hour day work he could be capable of because of his lack of education and his back trouble. (R., Vol. II at 66, 67, 77, 81, 95).

Before making a final decision in Smith's case, the ALJ on November 8, 1977, ordered Smith examined by a Social Security physician, Dr. Farooq I. Selod. Based upon his single examination of Smith, Dr. Selod's diagnosis substantially agreed with the other medical opinions ⁹ that Smith was suffering from "residuals of previous back injuries", but he was of the opinion that Smith could perform a six-eight hour sitting job using his upper extremities absent repetitive movements of both feet.

Besides Dr. Selod's evaluations, the ALJ considered the recommendations of Austin Foster, an administrative vocational psychologist, who testified at the hearing in response to two sets of hypothetical questions. The ALJ posed the first hypothetical which was premised on the physical capabilities outlined by Dr. Selod, i. e., that if he (ALJ) were to find an individual capable of engaging in strictly sedentary types of work with emphasis on the upper extremities, what types of work would the witness find existing in the national economy. In response, Foster listed...