Tew v. Schweiker, 80-3949

• Decision Date: 17 April 1981
• Docket Number: No. 80-3949,80-3949
• Citation: 642 F.2d 925
• Parties: Geneva TEW, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee. Summary Calendar. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 925

642 F.2d 925

Geneva TEW, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee.

No. 80-3949

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit A

April 17, 1981.

Laurel G. Weir, Philadelphia, Miss., for plaintiff-appellant.

George Phillips, U.S. Atty., E. Donald Strange, Asst. U.S. Atty., Jackson, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before CHARLES CLARK, REAVLEY and WILLIAMS, Circuit Judges.

CHARLES CLARK, Circuit Judge:

The plaintiff appeals from a decision of the district court affirming the Secretary's denial of her application for social security disability insurance benefits. Finding that the decision of the ALJ was supported by substantial evidence, we affirm. ¹

Geneva Tew sought district court review of a decision of the Secretary of Health and Human Services (Secretary) denying her application for disability benefits provided under the Social Security Act. Plaintiff applied for these benefits, alleging complete disability due to back and respiratory ailments. Plaintiff's application was disallowed at each stage of the administrative process. Both parties moved the district court for summary judgment on the administrative record. The district court granted the Secretary's motion.

The plaintiff, a resident of Meridian, Mississippi, has a high school education and attended one semester of business college. She has an extensive record of employment in skilled and semi-skilled jobs. She has worked on an assembly line in a factory, as a ticket agent in a bus station, as a clerk in a florist shop, and as an insurance agent. She resigned from her last job as a sales clerk in a department store in October 1976 allegedly because of the onset of her disability.

In her application for benefits, plaintiff alleged "right lung trouble" and "back trouble" as the sources of her disability. She was hospitalized under the care of Dr. Med Scott Brown in April 1979. On this occasion, she was admitted for "swelling of the feet and ankles, arthritis in the knees and ankles, indigestion and generalized weakness." The discharge diagnosis revealed an old compression fracture with mild kyphotic deformity, osteoarthritis, and hypoglycemia. Following discharge, plaintiff remained under the care of Dr. Brown who reported in a December, 1979 letter that she had pain in her joints and suffered from a chronic bronchial condition.

Mrs. Tew describes her symptoms as acute, chronic pain through the back, shoulders, and lower neck as well as swelling and pain in her knees and ankles. She testified that, as a result of her orthopedic condition, her mobility is severely limited. She also suffers from persistent shortness of breath and, according to her testimony, has blacked out and coughed up blood on occasion. Plaintiff stated that she could do light housework, shop, and attend church. At the time of the administrative hearing, she was able to walk four blocks and had begun patronizing a health spa for therapeutic purposes.

In the opinion of two treating physicians, the plaintiff is disabled. Dr. Brown, a specialist in internal medicine and cardiology, and Dr. Gus A. Rush, a specialist in obstetrics and gynecology, each stated in letters supplementing medical reports, that plaintiff could not be gainfully employed. However, Dr. James R. Green, an orthopedic surgeon who performed a consultative examination, characterized plaintiff's impairment as mild. His examination record reflected no abnormalities or deformities, and a normal range of motion. In addition, a non-examining physician who evaluated the medical evidence considered plaintiff capable of performing light work.

This court has recently explained the allocation of the burden of proof in a suit such as this. "Clearly the burden rests on the claimant to produce substantial evidence to establish her disability... But just as clearly, once the claimant meets the burden showing that she cannot perform her usual line of work, the burden shifts to the Secretary to show that the claimant is able to perform some other kind of substantial work available in the economy." Western v. Harris, 633 F.2d 1204 (5th Cir. 1981) (citations omitted). Here, the Administrative Law Judge stated in a portion of his decision subtitled "evaluation of the evidence": "While claimant has limitation of excessive bending and stooping, claimant retains the functional capacity to lift, stand and walk within the functional demands of a women's garment salesperson." The ALJ had before him substantial evidence to support this finding of fact. Part of this evidence was the opinion of a "Review Physician" stating that Mrs. Tew could perform as a woman's garment salesperson, the last job she had held before she asserts she became disabled.

The findings of fact by the Secretary are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). All of the plaintiff's arguments on appeal either challenge the allocation of the burden of proof or assume the plaintiff proved her prima facie case. Our holding that she did not prove she could not do her ordinary work answers these arguments.

Since the ALJ found that Mrs. Tew could perform a job that she had done before, she failed to meet her burden of proof that she could not do her ordinary work. Thus, the decisions of the ALJ, the Secretary, and the district court, are

AFFIRMED.

JERRE S. WILLIAMS, Circuit Judge, dissenting:

My reading of the record in this case makes it impossible to accept the conclusion of the majority that the decision of the administrative law judge is supported by substantial evidence. Under this record, the issue whether there is substantial evidence to support the decision being appealed need not be reached because of specific errors to the prejudice of the claimant which were made in the administrative hearing and decision. Further, because of error, the decision does not meet the substantial evidence requirement.

First. The Court concludes that the ALJ found that Mrs. Tew failed to make a prima facie case of disability. It rests this conclusion on the ALJ's statement that "claimant retains the functional capacity to lift, stand and walk within the functional demands of a women's garment salesperson," holding that this statement constituted a specific fact finding that Mrs. Tew is capable of doing her former work. I am convinced for several reasons that this statement by the ALJ was not a finding of fact but rather was merely part of the ALJ's summary of the evidentiary presentation in this case. The paragraph in which the statement appears relates the findings of the physicians who reviewed Mrs. Tew's medical records in connection with her disability claim. The latter part of the paragraph is an almost verbatim rendition of the important portions of the reports filed by those physicians. Nothing in the relevant passage suggests that the ALJ intended to...