Wilkinson v. Schweiker, 80-7534

• Citation: 640 F.2d 743
• Decision Date: 26 March 1981
• Docket Number: No. 80-7534,80-7534
• Parties: E. L. WILKINSON, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee. Summary Calendar. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 743

640 F.2d 743

E. L. WILKINSON, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human

Services, Defendant-Appellee.

No. 80-7534

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit B

March 26, 1981.

Clark, James & Crittenden, Charles Tyler Clark, Birmingham, Ala., for plaintiff-appellant.

Herbert J. Lewis, III, Asst. U.S. Atty., Birmingham, Ala., for defendant-appellee.

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

Before HILL, FAY and ANDERSON, Circuit Judges.

PER CURIAM:

Elmer L. Wilkinson has applied for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 423. He alleges that pain in his back and left leg and hip has rendered him incapable of working since September 2, 1976. After agency denials of his application at the initial and reconsideration stages, Wilkinson requested a hearing. At the conclusion of that hearing, the Administrative Law Judge (ALJ) likewise denied benefits, finding that Wilkinson, although unable to perform his past work, was able to work at a sedentary level. That decision was approved by the Appeals Council and adopted by the Secretary as the final decision. Wilkinson filed suit, and the district court affirmed the decision of the ALJ. We too affirm.

It is well established that the burden to demonstrate the existence of disability, as defined in 42 U.S.C. § 423(d), ¹ lies with the claimant seeking benefits. If the claimant can prove that he is no longer able to perform his past work, the burden shifts to the Secretary to show that there is some other type of substantial gainful activity suitable to the claimant. See Fortenberry v. Harris, 612 F.2d 947, 949-50 (5th Cir. 1980). Here, the claimant has cleared the initial hurdle; the ALJ found that Wilkinson was unable to perform the work he once performed. Wilkinson challenges, however, the conclusion that he is able to perform some sedentary work. Essentially, he raises two questions: (1) Was the denial of disability benefits supported by substantial evidence, and, particularly, did the ALJ properly consider Wilkinson's subjective testimony regarding his pain and discomfort? (2) Did the ALJ improperly question the vocational expert regarding the availability of employment suitable to Wilkinson?

Courts, when reviewing agency decisions concerning disability benefits, are not to reweigh the evidence. Rather, courts must determine only if there is substantial evidence in the record supporting the agency's decision. 42 U.S.C. § 405(g); Epps v. Harris, 624 F.2d 1267, 1269 (5th Cir. 1980); Fortenberry v. Harris, 612 F.2d at 950. Wilkinson has been examined by several doctors, including his personal attending physician, physicians who have examined him specifically with an eye towards this claim, and a psychiatrist. None of these maintained that Wilkinson was without the capacity to work. While some of the doctors noted that Wilkinson suffers from some psychiatric impairment and pain, others, whose opinions were not and should not be ignored, suggested that Wilkinson's dysfunction may be exaggerated. Furthermore, the record indicates that Wilkinson is not being treated for his malady, nor is he taking medication for his pain.

It is clear that the ALJ properly considered all evidence before him, including evidence of Wilkinson's subjective pain. "The factual determination of whether the claimant is able to work despite some pain is within the discretion of the Administrative Law Judge and will be upheld if supported by substantial evidence." Fortenberry v. Harris, 612 F.2d at 950 (citing Newborn v. Harris, 602 F.2d 105, 107 (5th Cir. 1979)). The determination that Wilkinson can work at a sedentary level is supported by the evidence here.

Thus Wilkinson's second question can be answered readily. Wilkinson charges that the ALJ, in his attempt to determine whether employment suitable to Wilkinson is available, improperly questioned the vocational expert. The following dialogue took place:

Q. All right, I want you to assume, Doctor, that I will find that he has the physical ability to perform sedentary work, and that on the basis of the physical ability to perform sedentary work, I'd like to know what, if any, effect, his psychiatric or psychophysiological problems would have on him, where they impose on him a mild impairment in his ability to relate to other people. Where he has a mild deterioration of personal habits, and a mild restriction on ability to perform work requiring frequent contact with others, where the contact was minimal.

Mild restriction in performing complex tasks, and a moderate restriction in his restriction of daily activities and...