442 F.2d 803 | D.C. Cir. | 1971
Lead Opinion
This case involves an action brought under § 205(g) of the Social Security Act, as amended,
I. The Facts
Plaintiff was born in the Philippines on September 22, 1910. Prior to finishing high school, he served with the United States Army as a Philippine Scout from 1938 to 1947, the source of his employment coverage for Social Security purposes.
After his military discharge, plaintiff took a radio technician course for ten months in 1951-52, and he worked as a strawberry picker and assistant bartender briefly in 1955. He had to quit both jobs because of his heart weakness.
II. Governing Principles
The Social Security Act, as amended, provides that “Every individual who * * * is insured for disability insurance benefits * * * and * * * is under a disability * * * shall be entitled to a disability insurance benefit.”
an individual * * * shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.7
The Government claims that the Secretary has no burden whatever of offering evidence of job availability for disability claimants. We think such a burden of coming forward does shift to the Government when the claimant has made a showing of inability to return to his former work, and the record does not otherwise contain any evidence of claimant’s ability to engage in substantial gainful work. If the Government meets its burden of coming forward, then the claimant has the overall burden of showing that his disability precludes substantial gainful work.
The Government bases its argument on the effect on prior law of § 158(b) of the Social Security Amendments of 1967.
Nevertheless, the 1967 Amendments have not jettisoned the rule that once the claimant shows evidence of his physical impairment disabling him from his former employment, the Secretary has the burden of going forward with evidence of other available employment. The only change wrought by the 1967 Amendments relates to the kind of evidence that must now be adduced. The Secretary need not show that the claimant would actually be hired. But he must show that there are jobs in the national economy that the claimant can do. In cases arising both before and after the 1967 Amendments it has been clearly stated that claimant’s evidence of physical impairment undercutting ability to engage in former employment puts a burden on the Secretary to come forward with evidence of capacity to perform jobs, in accordance with the statutory criterion. The burden of coming forward that is shifted to the Government has most recently been restated in Gray v. Finch, 427 F.2d 336 (6th Cir. 1970), where the claimant, a former foundry worker, presented evidence of lung disease that rendered him unfit to return to foundry work. The court said:
* * * The burden was on appellant to convince the Secretary that he was disabled from engaging in his former employment. He satisfied this requirement, thus shifting to the Secretary the burden of going forward with evidence to demonstrate the existence of available employment compatible with appellant’s disability. (427 F.2d at 338)10
In Gotshaw v. Ribicoff, 307 F.2d 840 (4th Cir. 1962), Mrs. Gotshaw could have continued doing the same work she had done for years if her employer had not installed a heavier spinning machine. It was also found “quite significant” that she made no effort to find other employment.
As to prior decisions of our court, the Government invokes Mitchell v. Gardner, 123 U.S.App.D.C. 195, 198, 358 F.2d 826, 829 (1966). There we rejected the claim of an epileptic, saying: “there would appear to be no reason why, with continuing medication, he could not return to his former work when he is released.” Today we focus on the rule that establishes the Government’s burden of going forward once the claimant has shown a medical impairment which prevents him from returning to his former type of work. A host of precedents attest to the vitality of that rule.
These cases make clear that the 1967 Amendments lighten the burden of what the Government must show, but claimant’s showing of inability to return to former work does shift to the Government a burden of coming forward. Now the Secretary need only come forward with proof that there are substantial job opportunities in the national economy that can be occupied by persons of the claimant’s background and condition. As already indicated, once the Secretary comes forward with such proof claimant must shoulder the overall burden of showing, i. e., convincing the Secretary, that the disability precludes any gainful employment.
Finally, we refer to the Government’s claim based on the putative effect of Section 223(d) (5) of the Act, 42 U.S.C. § 423(d) (5) (Supp. Y 1965-69), included
An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require.
However, a similar sentence, containing the word “proof” instead of the current “medical and other evidence,” was a part of former § 223(c) (2), 42 U.S.C.A. § 423(c) (2) (1964). Neither sentence is inconsistent with the requirement that after an initial showing by claimant, the Government has the burden of coming forward with vocational evidence.
The legislative history of (d) (5) is unenlightening, the Senate Report merely repeating the statutory language.
III. Application of Principles to the Record
The ease before us is unique in terms of the facts and state of the record. Plaintiff was a resident of the Philippines. When he inquired about a hearing on his claim he was informed by an H.E.W. official that “since no provision has been made for hearings to be held outside the United States, you would have to come into the United States at your own expense. * * *” (Tr. 98).
This ease is unique also in that plaintiff’s former employment was with the Army, rather than any of the almost infinite variety of civilian employments usually involved in benefit cases. Congress provided that service in the Army during and after World War II gave rise to Social Security benefits.
No evidence whatever was adduced by the Secretary, neither testimony of a vocational expert such as he often provides, nor deposition or interrogatories. Since the Secretary had the burden of coming forward on this point, his failure to adduce evidence leaves his findings without the support of substantial evidence as required by 42 U.S.C. § 405(g). Cf. Mitchell v. Gardner, 123 U.S.App.D.C. 195, 197-198, 358 F.2d 826, 828-829 (1966). Accordingly, we reverse and remand for entry of a judgment directing that plaintiff be granted the disability insurance benefits to which he would have been entitled had his application been approved, and to which he was entitled on the record as made.
So ordered.
. 42 U.S.C. § 405(g) (1964).
. The original appellant, Perfecto Meneses, died in August, 1968. His widow, Patro-cinia Meneses was substituted as plaintiff per order of the District Court on May 22, 1969. In this opinion, decedent Per-fecto Meneses will be referred to as “plaintiff.”
. Sections 217(a) of the Act, 42 U.S.C. § 417(a), and 217(e), 42 U.S.C. § 417(e) grant wage credits for active service (including service deemed active service) to World War II veterans and to veterans of post-World War II service. The Social Security Administration Regulations, 20 C.F.R. §§ 404.1304(a) (3) and 404.-1305(a) (3) (1970) include members of the Philippine Scouts as covered veterans for establishment of a period of disability under the Act.
. The hearing examiner in this case stated that plaintiff’s insured status ended on June 30, 1950. The Social Security Administration had earlier determined this date to be September 30, 1950. The difference is not significant to the case however.
. In 1955 the V.A. rating of appellant was Class III — 50 to 70% impairment. Class III is shown where “(a) organic heart disease exists but without resulting symptoms at rest; (b) walking more than one or two blocks on the level, climbing one flight of ordinary stairs, or the performance of the usual activities of daily living produce symptoms ; (e) emotional stress, hurrying, hill-climbing, recreation, or similar activities produce symptoms; and (d) signs of congestive heart failure, if present, are usually relieved by therapy.” Sag-all and Reed, The Heart and The Law, 810 (1968).
. 42 U.S.C. § 423(a) (1) (Supp. V, 1965-69).
. 42 U.S.C. § 423(d) (1) (A), and (d) (2) (A) (Supp. V, 1965-69).
. Pub.L.No.90-248, § 158(b), 81 Stat. 868, (now codified in 42 Ü.S.C. § 423(d) (2) (A), supra n. 7).
. H.R.Rep.No.544, 90th Cong., 1st Sess. 29-30 (1967) ; S.Rep.No.744, 90th Cong. 1st Sess. 48-49 (1967).
. It was because a vocational expert testified, producing evidence of several such jobs, and the claimant failed to demonstrate that he could not perform them that the court in Gray affirmed the Secretary’s denial of benefits. Once the Government met its burden of going forward by introducing evidence that claimant could do other work, claimant had the overall burden of proof showing that his disability precluded his doing the work.
See also Stumbo v. Gardner, 365 F.2d 275 (6th Cir. 1966) ; Long v. Cohen, 293
. See, e. g., Reyes Robles v. Finch, 409 F.2d 84, 86 (1st Cir. 1969); Mullins v. Cohen, 408 F.2d 39, 40 (6th Cir. 1969); Hicks v. Gardner, 393 F.2d 299, 301 (4th Cir. 1968); Rosin v. Secretary of H.E.W., 379 F.2d 189, 195 (9th Cir. 1967); McMillin v. Gardner, 384 F.2d 596, 598 (10th Cir. 1967); Galan Aguila v. Secretary of H.E.W., 308 F.Supp. 42, 45 (D.Puerto Rico 1970); Haskins v. Finch, 307 F.Supp. 1272, 1283 (W.D.Mo.1969); Weaver v. Finch, 306 F.Supp. 1185, 1191 (W.D.Mo.1969); Boback v. Finch, 304 F. Supp. 966, 969 (W.D.Pa.1969); Trujillo v. Cohen, 304 F.Supp. 265, 267-268 (D.Colo.1969). See Annot. 22 A.L.R.3d 440 (1968) and 1970 Supp. for an exhaustive collection of other cases.
. The question was noted, without decision, in Gentile v. Finch, supra, 423 F.2d at 248 n. 5; Flake v. Gardner, 399 F.2d 532, 541 (9th Cir. 1968); and Dean v. Gardner, 393 F.2d 327, 329 (9th Cir. 1968).
. S.Rep.No.744, 90th Cong., 1st Sess. 49 (1967).
. In view of our disposition of this case, we need not consider whether this was a correct statement. The Government’s brief on appeal argues that a hearing was available in the Philippines at the Veterans’ Administration Regional Office.
See 20 C.F.R. § 404.918 (1970). At oral argument counsel for appellant stated, without contradiction, that he had been orally advised by Government counsel that the Social Security Administration did not provide hearings in the Philippines. We also need not consider appellant’s further claims of procedural unfairness which as-sertedly vitiate the Secretary’s determination.
. See note 2, supra. “World War II” and “post-World War II” are defined in the Regulations, 20 C.F.R. §§ 404.1302, 404.-1303, as a period running from September 16, 1940, to the close of December 31, 1956.
Dissenting Opinion
(dissenting):
The burden of establishing a disability claim under the Social Security Act has always been on the claimant. He must show an “inability to engage in any substantial gainful activity.” 42 U.S.C. § 423(d) (1) (A) (Supp. IV, 1965-68) (Emphasis added.) This means an inability to engage not only in one’s former occupation, but also in some other gainful activity. The majority reverses the decision of the Secretary because they claim that once the appellant has shown that he is no longer able to engage in merely his former employment there is a “burden on the Secretary to come forward with evidence of capacity to perform jobs.” Unfortunately, the majority has grossly misinterpreted and misapplied the law on this subject. The claimant must show more than a mere inability to pursue his former employment to make out a case.
In Alsobrooks v. Gardner, 357 F.2d 110 (5th Cir. 1966) it was stated:
To establish a disability under the Act a claimant must show that he is unable to do his former work and is unable to perform any substantial, gainful work, including work of a lighter type. (Citations omitted.)
(Id. at 112) (Emphasis added.) It was held- in Harrington v. Gardner, 262 F.Supp. 288 (S.D.N.Y.1966):
This burden is satisfactorily met when [claimant] offers evidence of such incapacity that he is no longer capable of meeting the demands of his prior employment and that his background, as a practical matter, apparently precludes him from securing other employment.
(Id. at 291) (Emphasis added.) In Celebrezze v. Raley, 330 F.2d 755 (5th Cir. 1964), with Judge Wright on the panel, the court in a per curiam opinion in quoting from Hicks v. Flemming, 302 F.2d 470 (5th Cir. 1962) stated the rule as follows:
“To establish a disability under [the Act] a claimant must do more than show that he is unable to do his former work; he must be unable to perform any substantial, gainful work, including work of a physically or emotionally lighter type. * * * ”
To support its interpretation of the rule on burden of coming forward, the majority has cited many cases. In most of the cases the claimant has either initially demonstrated, besides a physical handicap, his lack of particular experience or educational background for another job, see, e. g., Mullins v. Cohen, 408 F.2d 39 (6th Cir. 1969); Long v. Cohen, 293 F.Supp. 370 (W.D.Va.1968)
Typical of the cases cited by the majority is Stumbo v. Gardner, supra. In this case the claimant failed to even establish that she was disabled from returning to her former employment. The court then was not even faced with the issue of whether the Secretary would have been compelled to go forward if .the claimant had shown only an inability to return to her former employment. Though Stumbo may have implied the majority’s interpretation of the rule, a careful study of the cases relied on by the Stumbo court shows the majority interpretation to be incorrect. Stumbo and other cases from other circuits that supposedly support the majority position can be found to ultimately rely on Thompson v. Celebrezze, 334 F.2d 412 (6th Cir. 1964) and Ellerman v. Flem-ming, 188 F.Supp. 521 (W.D.Mo.1960) for their statement of the law. In Thompson the claimant “proved his total disability.” Thompson v. Celebrezze, supra, 334 F.2d at 414. (Emphasis added.) The court then stated:
[H]e need only establish that he has become disabled from employment in any work in which he could profitably seek employment, in the light of his physical and mental capacities and his education, training and experience; and he need not be totally helpless or bedridden.
(Id.) (Emphasis added.) In Thompson it was only because the claimant had established that he could not read, had very little movement of his back and was unable to even do some types of light work that the burden shifted to the Secretary. In Ellerman the claimant made his case when he showed his lack of training and experience for anything other than physical labor. In neither Thompson nor Ellerman did the court hold that the initial burden was met by merely showing an inability to engage in former employment. In Justice v. Gardner, 360 F.2d 998 (6th Cir. 1966) the court dispelled any notion that its past decisions gave vitality to a rule the majority now states as being supported by a “host of precedents.” The court in Justice, assuming claimant’s inability to do only his prior work, stated:
"Our relevant decisions have been made m the factual contexts of each case and we did not announce a mechanical rule which would relieve each applicant from his'initial burden of proving disability. It is not the burden of the Secretary to make an initial showing of non-disability.
(Id. at 1002) (Emphasis added.) In Gray v. Finch, 427 F.2d 336 (6th Cir. 1970), which is quoted by the majority, it was stated that “the claimant must show that he is suffering from a medical disability which prevents him not only
It is quite evident from the record in this case that the claimant has utterly failed to meet his burden. All that we know of claimant’s physical condition prior to June or September of 1950, when his insured status terminated, is that he was given a disability discharge from the Army because of a finding by a Board of Medical Officers that he was “[i]n-capacitated for further duty because of possibility of subsequent cardiac damage on strenuous activity.” (Tr. 25) (Emphasis added.) Though the status of claimant’s health after 1950 is irrelevant, it is interesting to note that he was at all times since April 23, 1948, cleared to perform moderate activity. The majority, however, seems to take great comfort in relating the claimant’s physical condition some five years after his insured status had expired. If this type of evidence were proper food for thought, though I don’t concede it as such,
It is contrary to logic and prior case law to hold that a claimant, with the educational background of our claimant, has met his burden by merely establishing an incapacity any longer to serve m the Army. It is indeed quite conceivable that while in the Army claimant might well have had duties that required a certain degree of skill and responsibility that would have put him in good stead for transition to the civilian way of life. He had achieved the rank of staff sergeant and was described as intelligent. (Tr. 26.) Claimant could have provided the Secretary with information about his particular job experience or lack thereof in his application for disability. He failed to do so by leaving unanswered question 9 of the disability form which reads:
What kind of job did you work at most in the 3 years before the date [of your impairment] (give job title, nature of employer’s business, brief description of your duties)?
(Tr. 16) (Emphasis added.) Neither are we told of plaintiff’s activities in relation to job experience prior to 1938 when he became'a Philippine Scout. It is the duty of the claimant to provide this information in order to show his lack of qualification for any other line of work. Not until this is done can it be said there is any burden on the Secretary. To borrow a phrase from Gotshaw v. Ribicoff, 307 F.2d 840 (4th Cir. 1962), I too, find it “quite significant” that claimant does not allege that he made any effort to look for another job prior to 1955.
Even if I were to hold that the burden had shifted to the Secretary, the record would still support his ruling. It is obvious that claimant’s educational background would qualify him for the thousands of light jobs that exist in the community. It would be absurd to require vocational evidence to prove the obvious —that jobs not requiring strenuous ac
Unless we are to adopt a practice of abandoning reason and of interpreting cases beyond their intended scope, this case should be affirmed. I agree wholeheartedly with the majority that “the court is [not] bound to sustain a denial of disability benefits where the applicant has raised a serious question and the evidence affords no sufficient basis for the Secretary’s negative answer.” It is obvious to me, however, from a painstaking examination of the record that the applicant has not raised a “serious question” and that there is a more than “sufficient basis” for the Secretary’s holding.
. In Mullins and Long appellants could neither read nor write. This is particularly relevant, since in our case claimant lias had a high school education and a year of training in radio technology at Feati University.
. See Johnson v. Celebrezze, 217 F.Supp. 741 (S.D.W.Va.1963).
. Despite claimant’s academic achievements the majority refers to his training as “limited.” No such classification is justified. In 1950-51 only 11 percent of the total school population in the Philippines was enrolled in high school and 3.5 percent in college. See 15 Collier’s Encyclopedia 660 (1955). Claimant, who actually finished high school and spent a year in college, was certainly a member of a select minority group.