Patrocinia Meneses v. Secretary of Health, Education and Welfare

TAMM, Circuit Judge

(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. * * * ”

*810 Celebrezze v. Raley, supra, 330 F.2d at 757 . (Emphasis added.) A claimant is required to be unable to do the type of work that he was formerly engaged in and demonstrate his lack of particular experience for any other type of work. See Rosin v. Secretary of HEW, 379 F.2d 189 (9th Cir. 1967).

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) 1 or has failed even to establish incapacity to return to his former work, thus rendering a discussion of the matter unnecessary. See, e. g., S.tumbo v. Gardner, 365 F.2d 275 (6th Cir. 1966). In the other cases cited the courts were more concerned with the Secretary showing that claimant would actually be hired. See, e. g., Rosin v. Secretary of HEW, supra. This, of course, is no longer a requirement under the amendments.

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 *811 from performing his previous work, but also from obtaining any gainful employment.” (Id. at 337.)

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, 2 it would be quite a bit more helpful to consider what claimant did only one year after his insured status expired. At that time the claimant was in good enough health to start and then successfully complete a full year’s load of university courses. Claimant offered no evidence, medical or otherwise to show that by his lack of education, experience or good health that he was unable to perform any other substantial activity. The record indicates that claimant was a high school graduate and spent a year at Feati University taking courses in radio technology, 3 a trade that hardly requires “strenuous activity.”

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 *812 tivity are available in the national community for high school graduates with additional credits in radio technology. Breaux v. Finch, 421 F.2d 687 (5th Cir. 1970). If we are to assume that it is common knowledge that such jobs are available for people possessing claimant’s educational background, then it is a proper subject for judicial notice. See Brown v. Piper, 91 U.S. 37 , 23 L.Ed. 200 (1875); Burr v. NLRB, 321 F.2d 612 (5th Cir. 1963); Mills v. Denver Tramway Corp., 155 F.2d 808 (10th Cir. 1946); Lowe v. United States, 83 F.Supp. 128 (W.D.Mo.1949). “Courts need not be blind to what all others know.” Burr v. NLRB, supra,, 321 F.2d at 624. Such things as economic and business conditions have often been subject to judicial notice. Antonio Roig Suers. S. En C. v. Sugar Bd. of Puerto Rico, 235 F.2d 347 (1st Cir. 1956), cert. denied, 352 U.S. 928 , 77 S.Ct. 225 , 1 L.Ed.2d 162 (1956); Barlow v. Budge, 127 F.2d 440 (8th Cir. 1942), cert. denied, 317 U.S. 647 , 63 S.Ct. 42 , 87 L.Ed. 521 (1942); Superior Trucking Co. v. United States, 274 F.Supp. 196 (N.D.Ga. 1967); In re Chaney, 76 F.Supp. 911 (W.D.Va.1947), aff’d sub nom. Chaney v. Stover, 167 F.2d 471 (4th Cir. 1948); Gualtieri v. Sperry Gyroscope Co., 67 F.Supp. 219 (E.D.N.Y.1946).

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.