Petition for Writ of Certiorari — Jordan v. Heckler

Office - Suor

88-1973 SPE

ny cs JUN J fans

=n ———————>——— = STEVAS

IN THE ————

Supreme Court of the Gnited States

OCTOBER TERM, 1984

HERBERT JORDAN

Petitic.rer,

Lun

MARGARET M. HECKLER

Secretary of the Department of

Health and Human Services

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ALLEN W. HOWELL

Attorney for Petitioner

Post Office Box 7482

Montgomery, Alabama 36107

(205) 262-6387

AR RETR SARIN, LISELI RG AE EE RT TE EE IS,

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

i

QUESTIONS PRESENTED

(1) Whether the Respondent in making Social Securi-

ty disability determinations is required by the doctrine of

collateral estoppel or the doctrine of res judicata to accept

as indisputable fact, the facts in the Court’s Findings of

Fact made by the Court of Claims or other courts in prior

litigation to which the United States and the Social Secu-

rity disability benefits applicant were both parties.

(2) As to facts judicially found and determined by the

Court of Claims or other courts in prior litigation to which

the United States and Social Security disability benefits

applicant were both parties, whether 42 U.S.C. § 405(g)

or the Mann v. Gardner, 380 F.2d 182 (C.A. 5, 1967)

principle against considering “extra-record evidence” in

judicially reviewing Social Security disability cases over-

rules or prevents the invocation of the doctrine of col-

lateral estoppel or the doctrine of res judicata, as those

doctrines have been enunciated in Sunshine Anthracite

Coal Co. v. Adkins, 310 U.S. 381 (1940), United States v.

Moser, 266 U.S. 236 (1924), and United States v. Stauffer

Chemical Co., ___. U.S. ___, 104 S.Ct. 575 (1984).

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...... 0. ee esse eee ee eee eeeees i

Taper OF AUTHORITIES ..... ccc ccs ccceccsescctetecss ili

Coennnnet TOW anc on heck hee di svi winds telances l

A eo rrr tree ror: et 2

Geasueen INVOLVED oo. ccccavcvccswecsesescussuseus 2

STATEMENT OF THE CASE ....cccccccccccscccccsccess 3

REASONS FOR GRANTING THE WRIT .........00eeeeeees 4

ee) nT errr rrr yr tr rt 10

Appenpix A —Magistrate’s Recommendation Adopted

by the District Court .............+5: la

APPENDIX B —-District Court’s Opinion ............ 10a

AppENDIX C —District Court’s Judgment .......... lla

AppENDIX D —Opinion of the Court of Appeals ..... 13a

AppENDIX E —Judgment of the Court of Appeals ... 22a

AppeNDIxX F —Order of Court of Appeals Denying Peti-

tion for Rehearing .............+.0065 24a

AppENDIX G —Decision of the Administrative Law

Judge of the Respondent ...........-- 26a

ili

TABLE OF AUTHORITIES

CASES: Page

Jordan v. United States, 205 Ct.Cl. 65 (1974) .... 4, 7, 10

Mann v. Gardner, 380 F.2d 182 (C.A. 5, 1967) ....... i, 6

Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381

eee ncaa cha cud cinceecece i, 6

United States v. Moser, 266 U.S. 236 (1924) ........ i, 6, 9

United States v. O’Grady, 22 Wall. 641 (1875) ........ 9

United States v. Stauffer Chemical Co., ___ U.S. ___.

ere i, 6, 9

STATUTES:

i i, 2, 3, 6, 7

42 U.S.C. § 423(1) ERROR Da vc kvinanccithveoka 3, 4

Federal Rules of Civil Procedure

IE 7

SUE ON SSL a Meigs vane cbssss00s00ns or

~]

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1984

ere

HERBERT JORDAN

Petitioner,

Vv.

MARGARET M. HECKLER

Secretary of the Department of

Health and Human Services

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

To the Honorable, the Chief Justice and Associate Jus-

tices of the Supreme Court of the United States.

Herbert Jordan, the Petitioner herein, prays that a

Writ of Certiorari issue to review the judgment of the

United States Court of Appeals for the Eleventh Circuit

entered in the above entitled case on January 31, 1984,

and issued as Mandate on March 28, 1984.

OPINIONS BELOW

The unreported Recommendation of the Magistrate of

the United States District Court for the Middle District of

Alabama is printed in Appendix A hereto, infra page la.

The unreported Opinion of the District Court is printed in

Appendix B hereto, infra, page 10a, said opinion adopted

2

the said Magistrate’s Recommendation. The Judgment of

the District Court is printed in Appendix C hereto, infra,

page lla. The unreported Opinion of the United States

Court of Appeals for the Eleventh Circuit is printed in

Appendix D hereto, infra, page 13a. The Judgment of the

Court of Appeals is printed in Appendix E hereto, infra,

page 22a. The Order of the Court of Appeals denying

rehearing is printed in Appendix F hereto, infra, page

24a. The decision of the Administrative Law Judge of the

Respondent is printed in Appendix G hereto, infra, page

26a.

JURISDICTION

_ This Judgment of the Court of Appeals (Appendix E,

infra, page E-1) was entered on January 31, 1984. A

timely petition for rehearing was denied on March 20,

1984 (Appendix F, infra, page F-1). The jurisdiction of

the Supreme Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

This case involves 42 U.S.C. § 405(g) which in perti-

nent part provides as follows:

§ 405(g) Judicial review. Any individual, after any

final decision of the Secretary made after a hearing to

which he was a party, irrespective of the amount in

controversy, may obtain review of such decision .

civil action commenced within sixty days after the

mailing to him of notice of such decision or such

further time as the Secretary may allow. {venue

provision omitted] As part of his answer the Secreta-

ry shall file a certified copy of the transcript of the

record including the evidence upon which the find-

ings and decision complained of are based. The court

shall have power to enter upon the pleadings and

transcript of the record, a judgment affirming,

modifying, or reversing the decision of the Secreta-

3

ry, with or without remanding the cause for a rehear-

ing. The findings of the Secretary as to any fact, if

supported by substantial evidence, shall be con-

clusive, * * *,

This case also involves 42 U.S.C. § 423(d) which in

pertinent part provides as follows:

§ 423(d). Definition of Disability. (1) The term “dis-

ability” means—

(A) inability to engage in any substantial gainful

activity by reason of any medically determinable

physical or mental impairment which can be ex-

pected to result in death or which has lasted for or

can be expected to last for a continuous period of not

less than 12 months; or

(B) [omitted - deals with “blindness” and is inap-

plicable]

(2) For purposes of paragraph (1)(A)—

(A) [Omitted]

(B) an individual ({inapplicable exceptions omit-

ted]) shall be determined he under a disability only

if his physical or mental impairment or impairments

are of such severity that he is not only urable to do

his previous work but cannot, considering his age,

educaion, and work experience, —— e in any other

kind of substantial gainful work w ich exists in the

national economy, sh ag of whether a specific

job vacancy exists for him, or whether a specific job

vacancy exists for him, or whether he would be hired

if he applied for work. For purposes of tne preceed-

ing 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 re-

gions of the country.

4

STATEMENT OF THE CASE

This is a Social Security disability case brought by the

Petitioer pursuant to 42 U.S.C. § 405(g). The Respon-

dent denied Petitioner’s application for disability benefits

relying on a decision of an Administrative Law Judge

(“A.L.J.” hereinafter). The A.L.J.’s decision is repro-

duced in Appendix G hereto, infra, p. 26a

The A.L.J. in his decision dated November 15, 1975

found inter alia that Petitioner while on the payroll of the

Veteran’s Administration (“V.A.” hereinafter) Hospital

as a nursing aide, “performed to the obvious satisfaction

of the parties in this work activity.” (Appendix G, p. 31a).

The A.L.J. used this assumption as a basis for determin-

ing that Petitioner was not disabled within the meaning of

42 U.S.C. § 423(d).

The Court of Claims in Jordan v. United States, 205

Ct.Cl. 65 (1974), reversed the U.S. Army’s board for the

correction of military records and changed Petitioner’s

regular honorable discharge to an honorable disability

discharge. The Army, like the A.L.J., was relying on

Petitioner’s so-called work at the V.A. Hospital as sup-

port for the position that the Petitioner was not disabled

at the time of his discharge from the Army and that this

nursing aide position was indicative of residual ability to

engage in substantial gainful activity. The Court of

Claims in its “Findings of Fact” € 21.(a) quoted a V.A.

Hospital physician and judicially found as fact as follows:

[From] Gross examination and observation of this

veteran [Petitioner], one cannot see how he can be a

nursing assistant at VAH [V.A. Hospital]. He is not

physically able to do the work anywhere near

ere h to be worth hiring a man in this

situation. Ct.Cl. at 99. [emphasis added]

The Court of Claims’ decision of July 19, 1974 was never

appealed to the Supreme Court, and was never modified

de ¢ Bitten. ts. he lhe

5

by the Court of Claims. It is thus a final decision, which

binds Petitioner and the United States and all officers of

the United States. The Respondent, as an officer of the

United States, could not, through his A.L.J.’s decision of

November 15, 1975 (one year and four months after the

Court of Claims’ decision was issued), find that Petition-

er’s employment at the V.A. Hospital was “to the obvions

satisfaction” of everyone, when the Court of Claims had

previously found that Petitioner was unable to do the

work “satisfactorily.” If the Respondent was collaterally

estopped from making such finding, or if the Respondent

was barred under res judicata from making such a find-

ing, a fortiori, the Respondent could not say that the

Petitioner’s employment at the V.A. Hospital constituted

evidence of ability to “engage” in “substantial gainful

activity.” In this regard a reading of the Court of Claims’

decision and the A.L.J.’s decision (Appendix G hereto)

would be beneficial to a more complete understanding of

the case. Because of the space limitations imposed upon a

certiorari petition, only this, the most egregious example

of conflict can be even summarily presented.

The District Court, accepting the Magistrate’s Recom-

mendations, and overruling Petitioner’s objections there-

to, affirmed the decision of the Respondent in denying

disability benefits to Petitioner (Appendices A, B, and

C). The Court of Appeals affirmed the District Court in an

unreported decision (Appendices D and E), and denied

Petitioner’s application for rehearing (Appendix F).

REASONS FOR GRANTING THE WRIT

I.

Certiorari Should Be Granted Because The Court Of

Appeals Has Decided A Federal Question In A Way In Con-

flict With Applicable Decisions Of This Court

The Court of Appeals’ decision (Appendix D) admits

that “the findings of the [A.L.J.] directly conflict with the

6

findings of the Court of Claims” (Appendix D, p. 18a).

While the Court of Appeals ostensibly “declined” to de-

cide if res judicata or collateral estoppel applied (Appen-

dix D, p. 19a), the Court of Appeals, agreeing with the

District Court, said “a review of the decision of the Secre-

tary must be limited to an examination of the evidence

before the [A.L.J.]. The court is not allowed to look at

evidence beyond the record in determining whether the

criteria of substantial evidence was met. Mann v. Gard-

ner, 380 F.2d 182, 187 (Sth Cir., 1967)” (Appendix D, p.

19a). Thus, in relying on the so-called “extra-record evi-

dence” rule, the courts below improperly refused to ac-

knowledge or give effect to the judicial doctrines of col-

lateral estoppel or res judicata, as enunciated by the

Supreme Court in Sunshine Anthracite Coal Co. v.

Adkins, 310 U.S. 381 (1940), United States v. Moser, 266

U.S. 236 (1924), and United States v. Stauffer Chemical

Co., __— U.S. —_, 104 8.Ct. 575 (1984).

The companion doctrines of collateral estoppel and res

judicata are judicial doctrines, and the Supreme Court,

as the supreme judicial body, should set the parameters

of, and any exceptions or limitations to those doctrines.

The Supreme Court’s above-cited cases do not set or

recognize explicity or impliedly, the limitations imposed

on those doctrines by the lower courts in this case.

In fact, the words of the judicial review section of the

Social Security Act, impliedly, if not explicitly authorize

reviewing courts to look at matters other than “the rec-

ord.”

* * * The court shall have power to enter, wpon the

pleadings and transcript of the record, a judgment

affirming, modifying, or reversing the decision of the

3 vel

PA asthe NR Me Oy Nae ESI At

Soe edited

7

Secretary,....* * *.42U.S.C. § 405(g). [emphasis

added]

The Recommendation of the Magistrate (Appendix A, p.

3a) notes that Petitioner filed pursuant to Rule 12(f) of the

Federal Rules of Civil Procedure (F.R.C.P.) a Motion to

Strike portions of the Respondent’s Answer because of

the Respondent’s failure to recognize and give effect to

the Court of Claims’ findings of fact in Jordan v. United

States, supra. Petitioner also filed objections to the

Magistrate’s Recommendations. The District Court over-

ruled these objections (Appendices B and C). Although

the Motion to Strike and the Objections to the Magis-

trate’s Recommendation were not “pleadings” as defined

by Rule 7(a), F.R.C.P., they should and, in the interest of

justice, must be considered “pleadings” within the mean-

ing of 42 U.S.C. § 405(g) as they raise or seek to invoke

the doctrines of res judicata and collateral estoppel at the

only appropriate points in the litigation. These doctrines

are defensive doctrines to be invoked once a party to the

second litigation advances a position or theory different

from what is proper under the decision of the first

litigation—-i.e., until the Respondent answered the Com-

plaint Petitioner could not know what position Respon-

dent would take and it would have been, at best, prema-

ture to raise these doctrines in the Complaint. Further, a

Motion to Strike the Answer (or part of it) is an attack ona

“pleading” (as defined by Rule 7(a), F.R.C.P.) and, if

granted, would alter that “pleading.” Consequently a

motion to strike a Rule 7(a) “pleading” is in substance, a

pleading, because it will (upon the Court’s order) leave as

is or alter the “pleading” being attacked.

Thus, the “pleadings and transcript” of this case con-

tain everything that was needed to decide this case, and

the lower courts erred in holding that the “extra-record

evidence” rule barred consideration of the Court of

8

Claims’ Findings of Fact and erred in refusing to apply to

the doctrines of res judicata or collateral estoppel.

II.

The Court Of Appeals Has Decided An Important Question

Of Federal Law Which Has Not Been, But Should Be Settled

By This Court - viz. In Litigation Reviewing A Denial Of

Social Security Disability Benefits, Can The Secretary, As

An Officer Of The United States, Be Collaterally Estopped

From Disputing Facts Judicially Found In Prior Litigation

Between The Social Security Claimant And The United

States?

The decisions of the Supreme Court on res judicata and

collateral estoppel have never dealt with this specific

issue before. Indeed, it is a novel isswe within the Federal

judicial system, as far as Petitioner’s counsel can deter-

mine. There have been previous cases, which will not be

cited, which have held that a decision by one federal

government agency as to disability is not binding on the

Secretarv. Indeed, Petitioner readily concedes that a

determination of disability by another agency should be

considered by, but is not binding on the Secretary. In this

case, however, we are talking about a federal court deci-

sion, aS Opposed to a mere federal agency decision. Res

judicaia has limited effect in the area of administrative

law. However, res judicata and collateral estoppel are

the cornerstones of the judiciary’s attempt to have con-

sistent decisions and to promote judicial economy.

The Supreme Court, while never deciding this issue,

has indicated in old and new case decisions that the

answer to the question is a resounding “yes.” First, the

Supreme Court has held that a judgment of the Court of

Claims is valid and binding on the parties and their privies

unless revised by the Supreme Court on appellate re-

view, and that no executive department of the United

_— eT ee

9

States can revise such a judgment. United States v.

O’Grady, 22 Wall. 641 (1875). Second, the Supreme Court

has held:

There is privity between officers of the same govern-

ment so that ajudgment ina suit between a party and

a representative of the United States is res judicata

in relitigation of the same issue between that party

and another officer of the government. * * * Wherea

suit binds the United States, it binds its subordinate

officials. Sunshine Anthracite Coal Co. v. Adkins,

310 U.S. at 403.

Third, in United States v. Moser, the Supreme Court

said:

The general principle announced in numerous cases

is that a right, question, or fact distinctly put in issue

and directly determined y a court of competent

jurisdiction, as a ground for recovery, cannot be

disputed in a subsequent suit between the same

arties of their privies; and even if the second suit is

or a different cause of action, the right, question, or

fact once so determined must, as between the same

parties or their privies, be taken as conclusively

established, so long as the judgment in the first suit

aaa unmodified. 266 U.S. at 241 [emphasis add-

e

Lastly, in United States v. Stauffer Chemical Co., ——

U.S. —_, 104 S.Ct. 575, at 578 (1984), the Supreme

Court reinforced the Moser holding (without citing it) by

saying:

As commonly agp the doctrine of collateral

estoppel can apply to preclude relitigation of both

issues of law and issues of fact, if those issues were

conclusively determined in a prior action. [emphasis

added]

Thus, the language of the Supreme Court’s above-cited

cases, indicates that the Court would say that the Court

10

of Claims’ decision in Jordan v. United States, 205 Ct.Cl.

65 (1974), is binding upon the Respondent and the Courts

that have reviewed the Respondent’s decision to deny

Social Security disability benefits. However, this issue

should be directliy addressed by the Supreme Court not

only because it is novel, but because the lower courts have

answered the issue incorrectly by refusing to address it,

and the lower courts have thus also failed to follow the law

as laid down by this court.

CONCLUSION

WHEREFORE, your humble Petitioner prays that a

Writ of Certiorari be granied for the foregoing reasons.

Respectfully submitted,

ALLEN W. HOWELL

Attorney for Petitioner

Post Office Box 7482

Montgomery, Alabama 36107

(205) 262-6387

11

CERTIFICATE OF SERVICE

I hereby certify that three copies of the foregoing Peti-

tion for Writ of Certiorari, including all Appendices

thereto, have been served on The Solicitor General of the

United States, by sending him the same by First Class

United States Mail, postage prepaid and properly ad-

dressed.

Dated this the Ist day of June, 1984.

Allen W. Howell

ALLEN W. HOWELL

Attorney for Petitioner

APPENDIX

la

APPENDIX A

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

CIVIL ACTION NO. 80-0116-N

HERBERT JORDAN,

Plaintiff

Vv.

PATRICIA HARRIS, as Secretary of the United States

Department of Health, Education and Welfare,

Defendant

FILED

FEB 5 2:27 PM

JANE P. GORDON, CLERK

U.S. DISTRICT COURT

MIDDLE DISTRICT OF ALA.

{illegible}

DEPUTY CLERK

RECOMMENDATION OF THE MAGISTRATE

Herbert Jordan, plaintiff, was a claimant for Social Security

disability benefits under the Social Security Act, as amended

His claims were denied administratively. Upon an application

filed July 27, 1973, denied initially and on reconsideration by

the Social Security Administratin he requested a heraing be-

fore an Administrative Law Judge (ALJ) who concluded that

he was not under a disability. The Appeals Council reviewed

the ALJ’s decision and affirmed.

The plaintiff then filed a timely complaint in this Cort pur-

suant to 42 U.S.C. 405(g) for a judicial review of the dis-

allowance to him of disability benefits under the Act, as

amended.

2a

PLEADINGS

The pleadings in this case consist of a complaint filed pur-

suant to 42 U.S.C. 405(g) in which the plaintiff asserts that the

decision of the Secretary through the ALJ is not supported by

substantial evidence. The relief the plaintiff seeks is for this

Court to review the Secretary’s decision and to award the

plantiff benefits and to allow the plaintiff ’s attorney a rea-

sonable attorney’s fee payable out of the retroactive accrued

benefits found to be due.

To the complaint, the defendant Secretary, now officially

known as the Secretary of “Department of Health and Human

Services” by reason of a name change effective May 4, 1980,

and requiring no action on the part of the plaintiff to amend and

so designate, has filed an answer. Pursuant to 405(g) of the

statute, the defendant Secretary has submitted as a part of her

answer a certified copy of the administrative transcript.

After the filing of the defendant’s answer, the plaintiff then

filed a motion to strike paragraphs 2, 3 and 5 from the defend-

ant’s answer. In the motion to strike the plaintiff asserts as

support thereof that the ALJ is making his findings in plain-

tiff’s case failed to take notice of findings of fact and conclusions

that the U.S. Court of Claims made in Jordan v. United States,

205 Ct, C1. 65 (1974), which apparently was a case which the

plaintiff, Herbert Jordan, had filed against the United States

concerning some dispute he appeared to have with the Army or

the Veteran’s Administration. In the motion the plaintiff

claims that the defendant Secretary is estopped from making

findings and conclusions as to plaintiffs physical condition or

ability to work which is different from those which were found

and established by the Court of Claims.

Subsequent to the plaintiff's motion to strike the parties

hereto appear to have engaged in a pleding contest. For in-

stance, the defendant Secretary filed a motion for extension of

time in which to file a brief, the plaintiff filed a response in

opposition thereto, the defendant then filed a motion for an

extension of time to respond to the plaintiff's motion to strike to

3a

which the plaintiff again responded in opposition thereto. The

defendant then responded to the plaintiff's motion to strike a

part of the defendant’s answer to which the plaintiff replied

and asserted a second motion to strike. The defendants then

filed a rebuttal to the plaintiff's reply to defendant’s response

to plaintiff's motion to strike and the plaintiff moved to strike

this rebuttal.

The only pleading filed subsequent to the defendant’s

answer in this cause that needs any attention is the motion to

strike parts of the defendant’s answer. Upon consideration,

the Magistrate determines that there is no merit to this motion

and should be denied as well as all other motions filed sub-

sequent thereto. In effect, by his motion to strike parts of the

defendant’s answer and to assert estoppel against the defend-

ant from making findings or conclusions in this case different

from those found in the U.S. Court of Claims action miscon-

strues on the part of the plaintiff the severe statutory require-

ments demanded by the Social Security Act. It also miscom-

prehends the limited judicial responsibility placed upon a

Federal District Court by the Act. 42 U.S.C. 405(g), inter alia,

provides that when a complaint is timely filed in a district court

by a dissatisfied Social Security claimant that the Secretary

file an answer and to make as a part of the answer a certified

copy of the administrative transcript made before an ALJ. The

Act further provides for a very limited jurisdictional review in

this Court and commands that if the decision of the ALJ is

supported by substantial evidence the decision then dstands. A

reviewing court may not reweigh evidence nor substitute its

judgment for that of the Secretary. Laffon v. Califano, 558

F.2d 253 (5th Cir. 1977).

The Social Security regulations also provide that a disability

determination by another federal agency is not binding on

Social Security for the reason that the Social Security Act

provides its own standards and criteria in defining “disability.”

See Skeels v. Richardson, 453 F.2d 882 (5th Cir. 1972), cert.

denied, 409 U.S. 857 (1972). In effect, it appears to the Magis-

trate that the plaintiff is asking this Court, in order to sustain

da

his motion to strike, to consider extra record evidence, to-wit,

the proceedings in the Court of Claims, in order to make a

determination in this case. This cannot be done. This Court’s

limited review in this case is confined to a determination as to

whether or not the Secretary’s decision in this case is sup-

ported by substantial evidence and this determination can be

made only and exclusively on the certified administrative rec-

ord. The record here contains no U.S. Court of claims proceed-

ings or findings. See Mann v. Gardner, 380 F.2d 182 (5th Cir.

1967), and Johnson v. Harris, 612 F.2d 993 (5th Cir. 1980).

Accordingly, the plaintiff's motion to strike parts of the de-

fendant’s answer in this case should be denied. All other mo-

tions filed by the plaintiff or the defendant which have not been

acted on should also be denied.

SCOPE OF REVIEW

It is beyond argument the law is that upon a judicial review

of a final decision of the Secretary of Health and Human serv-

ices a reviewing court is limited to determine whether or not

the decision of the Secretary is supported by substantial evi-

dence. Substantial evidence means more than a scintilla and

must do more than create a suspicion of the existence of the fact

to be established, Natinal Labor Relations Board v. Col-

umbian Enamel and Stamping Company, 306 U.S. 292

(1939), and nothing less than such relevant evidences as a

reasonable mind might accept as adequate to support a con-

clusion will do. Richardson v. Perales, 402 U.S. 389 (1971). If

the administrative findings are so supported, the findings are

not conclusive; the reviewing court may not reweight the evi-

dence or substitute its judgment for that of the administrative

finder even if the reviewing court views the evidence as

preponderating otherwise. Strickland v. Harris, 615 F.2d

1103 (1980); Laffoon v. Califano, 558 F.2d 253 (5thCir. 1977).

The evidence must be considered as a whole, Simmons v.

Harris, 602 F.2d 1233 (5th Cir. 1979), including objective

medical factors or clinical findings, diagnosis of physical exami-

nation, subjective evidence of pain and disability if testified to

by the claimant and corroborated by others, if any, and the

ooo ee

va

claimant’s age, education and work history. DePaene v.

Richardson, 464 F.2d 92 (5th Cir. 1972). The claimant in a

Social Security matter seeking disability income benefits has

the burden of producing substantial evidence to establish his

disabiity. Western v. Harris, __ F.2d —_., Slip Opinion No.

80-3386 (5th Cir. Jan. 9, 1981).

In order to be entitled to benefits under the Act, the plaintiff

must establish that he became disabled on or before the last

date on which he met the special earnings requirement of the

Act, Hart v. Finch, 404 F.2d 1340 (5th Cir. 1971), and any

impairment of which had its onset or became disabling after the

special earnings test was last met cannot be the basis for a

favorable finding of disability. Seales v. Gardner, 356 F.2d 508

(5th Cir. 1966).

In this case, it is clear that Herbert Jordan, plaintiff, last met

the special earnings requirement of the Social Security Act on

June 30, 1963. The plaintiff has filed several applications for ,

disability Social Security insurance benefits which include the

dates of July 1, 1959; November 9, 1964; October 23, 1967; and

February 19, 1969. The application under consideration here

was filed on July 27, 1973. On all applications except the one

under consideration the plaintiff failed to follow through and

exhaust his administrative remedies after he was denied bene-

fits initially by the Social Security Administration thus making

the determinations final as to them. Upon administrative and

initial denial of benefits on his 1973 application he requested a

hearing before an ALJ before whom he and his representative

appeared. The ALJ considered his case de nove and concluded

that he was not under a disability. The Social Security Appeals

Council reviewed plaintiff's case and affirmed the decision of

the ALJ thus paving the way for the action in this Court

pursuant to 42 U.S.C. 405(g).

The plaintiff in this case was born on April 25, 1930. He has a

high school education and at least one year in college. He spent

a number of years in the U.S. Army and was discharged for

medical reasons. The medical evidence and his testimony tend

to demonstrate that on or about August 31, 1955, he had a

6a

stroke. He was admitted to an Army hospital on September 7,

1955, and the medical diagnosis was thrombosis of the pontine

arterial branch due to an unknown cause. After showing im-

provement, he was discharged to duty on or about December 7,

1955.

On or about August 9, 1956, he was admitted to another

Army hospital for persisent headaches. Examination allegedly

reflected poor motivation with a hysterical basis for his com-

plaints. On May 19, 1958, plaintiff was again hospitalized be-

cause of occasional! right fronto-temporal headaches existing

with exertion and fatigue. Upon physical examination he was

discovered to have microscopic hematuria on pyuria. On Feb-

ruary 10, 1959, a certified neurologist made a neurological

evaluation of the plantiff and found moderate right lower facial

weakness, a slight speech defect, and a tendency to drag the

left foot in a hemiplegic fashion. He had difficulty walking on

his heels and toes and there was ataxia on the left sice with

finger-to-fnger and heel-to-toe test. Examination reflected

evidence of encephalopathy because of motor and sensory

impairment.

On June 22, 1959, plaintiff went to the Veterans Administra-

tion Hospital in Tuskegee, Alabama, complaining of sharp,

continuous pain over the anterior surface of the left thig.

Physical examination revealed that he could elevate his shoul-

der to about 90 degrees and he walked with a mild limp favoring

the left side. There was no atrophy or hypertrophy of the

muscles although there was muscle weakness in the legs and

thighs. Other neurological findings were within psyiological

limits, laboratory results were within normal limits and X-ray

of the left thigh and chest revealed no pathology. Plaintiff

received no medication during his hospital stay. He experi-

enced mild subsidence of his pain and was discharged at his

request on July, 1959, before undergoing all the tests he had

been admitted for. Final diagnosis was cerebral vascular acci-

dent probably due to thrombosis with paresis of the left side

and paraylsis of the right side of the face. At the time of his

discharge his condition was unchanged.

ee ee ee a ee ee

Ta

After the plaintiffs insured status expired on June 30, 1963,

he continued to have medical problems and medical examina-

tions. Neurological examinations on April 1, 1965, and Decem-

ber 2 1966, at the Montgomery, Alabama, Veterans Adminis-

tration Hospital confirmed the diagnosis of thrombosis pontine

angle artery manifested by paresis of the muscles of the left

upper and lower extremeties, trunk and right side of the face,

encepyalopathy and paresthesias on the left side of the body

and right side of the neck. Laboratory rests were negative

except for an EEG which showed thalamic epilepsy recurr-

ence.

A consulative report dated March 27, 1977, revealed that

plaintiff had apparently a number of vascular accidents involv-

ing the brain stem with a crossed hemiplegia.

In 1975 plaintiff developed diabetes mellitus diagnosed in

1967. He takes insulin for his diabetes. Medical reports be-

tween 1973 and 1975 confirm plaintiff's testimony that he had

complaints relating to his disability, his semi-paralysis, en-

larged heart and pain.

At his oral hearing before the ALJ plaintiff testified that his

only work experience outside of the Army was, that on his own

intiative after reading an advertisement in a newspaper, he

secured a job in 1961 at the Veterans Administration Hospital

here he worked until either 1964 or 1966. He claims that his

work at the hospital was not of a substantial nature in that he

was consistently absent from his duties by reaon of his physical

condition and that his superior at the hospital did not expect or

require him to perform on a full-time basis as other employees

were expected to perform. At the hearing plaintiff claims that

he has not worked since 1964 but there is an exhibit which he

introduced which suggests that he worked until December of

1966. At his hearing, he testified that he had diabetes for which

he receives shots and an enlarged heart which causes him pain.

He claims his ailments began in 1963.

The ALJ reviewed all other evidence presented to hm, con-

sidered the testimony at the oral hearings and the medical

8a

evidence evidenced by the exhibits contained in the adminis-

trative transcript. In evaluating the medical evidence the ALJ

pronounced that such evaluation should be directed primarily

to determine as far as possible the precise degree of functinal

loss or restriction that resuls from the plaintiff's physical and/

or mental impairments. It is the extent of limitation of plain-

tiffs ability to engage in physical activity such as sitting,

walking, reaching, manipulating and to perform normal mental

functions and it is only through an assessmment of these capa-

cities that a meaningful decision can be made with respect to

the plaintiff's ability to engage in substantial gainful activity.

The ALJ considered the plaintiffs receipt of Veterans Ad-

ministration benefits for disability. He considered the fact that

plaintiff engaged in work activity with the Veterans Adminis-

tration Hospital afaer securing the emloyment on his own as a

nursing assistant and that he worked at this job until 1964

during one period cf time and during another period of work

until 1966 and that he began this employment in 1961 before his

insured status ended in June of 1963.

The ALJ stated, though, that he was not satisfied from all

the evidence that plaintiff became disabled within the meaning

of the Social Security Act, as amended, at a time prior to June

30, 1963.The ALJ also stated that he was not satisfied that

after a careful review of all the medical evidence and weighing

the testimony of the plaintiff at the oral hearing that plaintiff

became disabled within the meaning of the Act prior toJune30,

1963. The ALJ further found that plaintiff continued to work

for over one year after he last met the special earnings require-

ment of the Act. It is noted here that work performed during a

period of disability may demonstrate a capabilty to perform or

engage in substantial gainful work activity. See Smith v.

Weinbrger, 381 F. Supp. 407 (U..D.C. E.D. Wis. 1974). The

ALJ further found that upon consideration of the multiple

complaints of plaintiff concerning headaches, his heart and

chest pains, and weakness of his extremities were not of such

severity prior to June 30, 1963, as would prevent plaintiff from

performing substantial gainful work activity.

9a

There is substantial evidence in this case to support the

decision of the defendant Secretary.

The defendant Secretary prays for judgment dismissing the

complaint with costs and disbursments. Accordingly, it is

RECOMMENDED that the plaintiff's motion to strike parts

of the defendant’s answer in this case be denied. It is further

RECOMMENDED that all other motions filed by th eplain-

tiff or the defendant should be denied. It is further

RECOMMENDED that the defendant’s prayer for judg-

ment dismissing the complaint with costs and disbursements

be denied. It is further

RECOMMENDED that the decision of the defendant Secre-

tary denying plaintiff's application for a period of disability and

for disability insurance benefits under the Social Security Act,

as amended, be affirmed.

Done this 5th day of February.

M. Lewis Gwaltney

UNITED STATES MAGISTRATE

ORDER

The Clerk of the Court is ORDERED to file the Recommen-

dation of the Magistrate and to serve by mail a copy thereof on

the parties to this action. The parties re directed to file any

objections to the aid recommendation within a period of thir-

teen days from the date of mailing to them. Any objections file

to the Recommendation of the Magistrate must be specific and

directed to that part or parts of the recommendation which are

objected to.

Done this 5th day of February, 1981.

M. Lewis Gwaltney

UNITED STATES MAGISTRATE

10a

APPENDIX B

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

CIVIL ACTION NO. 80-116-N

—-

HERBERT JORDAN,

Plaintiff,

7.

RICHARD S. SCHWEIKER, etc.,

Defendant.

FILED

JUL 15 1982

JANE P. GORDON, CLERK

OPINION

This cause is now before the court on the recommendation of

the U.S. Magistrate and the plaintiff Herbert Jordan’s objec-

tions to the recommendation. Upon consideration of the recom-

mendation and the objections, and upon a de novo determina-

tion of the proceedings, including a review of the file and the

transcript of administrative proceedings, the court is of the

opinion that the objections are to be overruled and that the

recommendation is due to be affirmed.

DONE, this 15th day of July, 1982.

Myron Thompson

UNITED STATES DISTRICT JUDGE

lla

APPENDIX C

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

CIVIL ACTION NO. 80-116-N

HERBERT JORDAN,

Plaintiff,

Vv.

RICHARD S. SCHWEIKER, etc.,

Defendant.

FILED

JUL 15 1982

JANE P. GORDON, CLERK

JUDGMENT

Pursuant to the memorandum opinion entered this date, it is

the ORDER, JUDGMENT, and DECREE of this court:

(1) That the plaintiffs objections be and they are hereby

overruled;

(2) That the recommendation of the U.S. Magistrate be

and it is hereby adopted;

(3) That all pending motions be and they are hereby de-

nied; and

(4) That the decisin of the defendant Secretary denying the

plaintiff's application for a period of disability and for disability

insurance benefits under the Social Security Act be and it is

hereby affirmed.

12a

It is the further ORDER of the court that no costs be taxed.

DONE, this the 15th day of July, 1982.

Myron Thompson

UNITED STATES DISTRICT JUDGE

l3a

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 82-7246

HERBERT JORDAN,

Plaintiff-Appellant,

v.

MARGARET M. HECKLER, Secretary of the

Department of Health and Human Services,

Defendant-A ppellee.

APPEAL FROM a ee STATES DISTRICT

FOR THE MIDDLE DISTRICT OF ALABAMA

(January 31, 1984)

Before TJOFLAT, VANCE and CLARK, Circuit Judges.

PER CURIAM:

Appellant Herbert Jordan filed an application for disability

insurance benefits on July 27, 1973. The Social Security Ad-

ministration denied the application initially and on

reconsideration. After appellant requested a hering, he and a

lay reprsenative appeared before an administrative law judge

for de novo consideration. On November 13, 1975, the adminis-

trative law judge issued his opinion which concluded that Jor-

dan did not qualify for disability insurance benefits. On March

6, 1980, the Appeals Council reviewed Jordan’s case, using the

new vocational factors regulations, and affirmed the decision of

the administrative law judge without modification.

Jordan sought judicial review pursuant to 42 U.S.C. sec.

405(g) on Mrch 21, 1980. The case was referred to a magistrate

who recommended that the decision of the Social Security

l4a

Administration be affirmed. The district court adopted the

magistrate’s recomendation and affirmed the denial of bene-

fits. The focus of Jordan’s appeal to this court is that the Social

Security Administration is bound, by principles of collateral

estoppel and res judicata, to follow a prior decision by the

Court of Claims holding that Jordan was 60% disabled at the

time of his discharge from the Army in 1958, was unable to

perform his duties as sergeant and thus entitled to a medical

discharge.

Jordan’s medical difficulties began on August 31, 1955 when

he suffered a stroke during the night. At that time, Jordan was

serving in the Army. He was admitted to the local hospital and

later transferred to Walter Reed hospital, where he remained

for over a month. He was then discharged to return to duty.

However, he was hospitalized again from January 17, 1956

until August 9, 1956. In December of 1958, after additional

hospitalization, Jordan was discharged from the Army.

The record indicates that following his discharge Jordan

continued to have medical problems, medical examinations,

and periods of hospitalization. In June of 1959, the Veterans

Administration Hospital diagnosed Jordan as suffering from a

cerebral vascular accident probbly due to thrombosis with

paresis of the left side and paralysis of the right side of the face.

This diagnosis was confirmed by subsequent neurological ex-

aminations at another Veterans Administration Hospital in

April of 1965 and December of 1966. A report by a consultant,

dated March 22, 1972, revealed that Jordan had apparently had

a number of vascular accidents involving the brain stem with a

crossed hemiplegia. Medical reports between 2973 and 1975

confirmed Jordan’s testimony at his hearing that he had com-

laints relating to his disability, his semi-paralysis, enlarged

heart, and pain.

At his administrative hearing, on August 18, 1975, Jordan

testified that he was unable to grip anything with one arm and

could not move the arm despite extensive physical therapy. He

wore a brace on his left foot because of an inability to control

l5a

the muscles there. Jordan also testified that he had diabetes

and an enlarged heart and suffered from severe headaches.

Jordan testified that the only employment he had held out-

side of the Army was as a nursing assistant at a Veterans

Administration Hospital and that his physical disabilities pre-

vented him from fully performing this job. Instead, he per-

formed light duties such as supervising patients’ smoking.

Jordan testified that when he was accepted for the position, the

doctor who examined him stated that he was not physically fit

to do any work. The doctor employed him, however, to help

him pay for his medication. Jordan testified that during this

time he was frequently in the Veterans Administration Hospi-

tal as a patient.

In his decision recommending that Jordan’s denial of bene-

fits be affirmed, the administrative law judge summarized the

medical evidence in the record and Jordan’s testimony at the

hearing. The administrative law judge recognized that Jordan

had received Veterans’ Administration benefits for disability

beginning shortly after his discharge. Also noted was the fact

that after a lengthy proceeding through the administrative

processes with the military, Jordan was successful in 1972 in

having his original discharge set aside and replaced with a

medical reti:ement for disability.

After summarizing these facts, the administrative law judge

noted that Jordan’s latest date for meeting the special earnings

requirement of the Act for disability insurance purposes was

June 30, 1963. In order to be entitled to benefits, Jordan had to

show that he became disabled within the meaning of the Social

Security Act, as amended, at sometime prior to June 30, 1963

and that the disability had continued up until at least fourteen

months prior to the date of the filing of the application for

benefits. The administrative law judge concluded that he was

not satisfied from all the evidence that Jordan became disabled

within the meaning of the Act at a time prior to June 30, 1963.

Jordan brought an action under 42 U.S.C. sec. 405(g) in

district court to review his disallowance of disability benefits

l6a

under the Social Security Act. In his motion to strike portions

of the defendant’s answer, Jordan emphasized that the find-

ings of the administrative law judge failed to take notice of the

findings and conclusions by the United States Court of Claims

in its review of Jordan’s military discharge. Jordan v. United

States, 205 Ct.Cl. 65 (1974). Jordan contended that the govern-

ment was estopped from making findings or conclusions

regarding Jordan’s physical condition or ability to work which

were different from those found and established by the Court

of Claims.

Jordan’s case was referred to a magistrate who recommend-

ed that the decision of the Social Security Administration be

affirmed. In addressing the prior Court of Claims decision, the

magistrate specifically concluded that the decision was extra-

record evidence which could not be considered in a review of

the case. The magistrate deemed the court’s limited review to

be confined to a determination of whether or not the Secreta-

ry’s decision was supported by substantial evidence and con-

cluded that this determination should be made exclusively on

the certified administrative record. In the rest of his recom-

mendation, the magistrate summarized the decision of the

administrative law judge and concluded that it was supported

by substantial evidence. The district court adopted the recom-

mendation of the magistrate and affirmed the decision denying

Jordan disability insurance benefits under the Social Security

Act.

In his suit before the Court of Claims, Jordan had contended

that on the date of his discharge from the Army he was unfit for

duty by reason of permanent disabilities and therefore eligible

for disability retirement pay. Jordan v. United States, 205

Ct.Cl. 65 (1974). After an exhaustive review of Jordan’s entire

medical history, the court concluded that the earlier decision

by the Army Board for Correction of Military Records was

arbitrary, capricious, and not supported by substantial evi-

dence. The court concluded that, on the basis of all the evi-

dence, at the time of his discharge Jordan had clearly been unfit

for duty by reason of permanent disability from the residuals of

a stroke.

acetate et a a lata

17a

Jordan’s case before the Court of Claims ironically pre-

dsented a situation somewhat similar to the present one. Jor-

dan was appealing the decision of the Board partly because he

had received a Veterans Administration rating of a 60% dis-

ability. The Court of Claims concluded that despite the fact

that the Veterans Administration applied standards of evalua-

tion for civilian disability which are different than the Army

standards for active military service, the court could not recon-

cile the medical evidence established in the determination of

disability with the Board’s refusal to classify Jordan as unfit for

duty at the time of his discharge. Among the findings of fact

made by the Court of Claims were:

21.(a) On March 27, 1962 plaintiff [Jordan] was ex-

amined by the VA at its facility in Montgomery, Alabama,

for an evaluation of his disability. At that time, he was

employed at the Veterans Administration Hospital in

Montgomery as a nursing assistant. The examining physi-

cian stated that: “Gross examination and observation of

this veteran, one cannot see how he can be a nursing

assistant at the VAH. He is not physically able to do the

work anywhere near satisfactorily or enough to be worth

hiring a man in this situation.”

Jordan v. United States, 205 Ct.Cl. 65, v9 (1974). Also adopted

as findings of fact were various medical reports demonstrating

the severity of Jordan’s ailments prior to 1963.

Finding of fact “21.(a)” by the Court of Claims contradicts

the statement in the administrative law judge’s opinion that:

The claimant was taper during this approximately

three year period [1961-1964] at work which, presumably,

was available in the hospital and he performed to the

obvious satisfaction of the parties in this work activity. He

continued to work for over one year after he last met the

special earnings requirements of the Act, the reason for

his ceasing to be able to work at this type activity was the

stroke which he had at such time.

Record Vol. 2 at 14 (emphasis added). We note that the admin-

istrative law judge cited no basis for his determination that

18a

“everyone” was “obviously satisfied” with Jordan’s perform-

ance. The administrative law judge concluded:

The claimant has failed to establish to the satisfaction of

the Administrative Law Judge that he became disabled

within the meaning of the Social Security Act, as

amended, at any time prior to the June 30, 1963, the date

he last met the special earnings requirements of the Act.

Record Vol. 2 at 14. In his enumerated findings, the adminis-

trative law judge also stated:

5. The claimant has failed to establish that his medical

condition was such as to preclude him from perform-

ing any type of substantial gainful work activity con-

sistent with his age, education and prior work experi-

ence at any time prior toJune 30, 1963, the date he last

met the special earnings requirements of the Act.

6. The Administrative Law Judge has considered the

multiple complaints of the claimant concerning his

headaches, his heart and chest pains, and his weak-

ness of extremities, which were primarily related to

his claim for disability associated with a stroke and

does not find that such condition, either singularly or

in concert, were of such severity prior to June 30,

1963, as would prevent him from performing sub-

stantial gainful work activity.

7. The claimant has failed to establish that he became

disabled within the meaning of the Social Security

Act, as amended, at any time prior to June 30, 1963,

= _ he last met the special earnings requirements

of the Act.

Record Vol. 2 at 15-16. After stating the last finding, the

administrative law judge concluded that Jordan was not enti-

tled to a period of disability or to disability insurance benefits.

The findings of the administrative law judge directly conflict

with the findings of the Court of Claims cited to show that the

Army improperly declared Jordan fit for service at the time of

his discharge. Jordan now contends that the Court of Claims

determination of a finding that Jordan could not satisfactorily

perform his job (finding of fact 21.(a), supra) precluded

Oe, ee ee “

19a

reconsideration of that fact in his subsequent social security

proceedings. Jordan bases his argument o. the principles of

res judicata and collateral estoppel as described in United

States v. Moser:

The general principle announced in numerous cases is that

aright, question, or fact distinctly put in issue and directly

determined by a court of competent jurisdiction, as a

ground of recovery, cannot be disputed in a subsequent

suit between the same penties or their privies; and even if

the second suit is for a different cause of action, the right,

question, or fact once so determined must, as between the

same parties or their privies, be taken as conclusively

established, so long as the judgment in the first suit re-

mains unmodified.

266 U.S. 236, 241, 45 S.Ct. 66, 67, __. L.Ed. ,

(1924), quoting Southern Pacific R.R. Co. v. United States,

168 U.S. 1, 48, 18, 27, 42 L.Ed. 355, —__ (1897) (emphasis

added). The court below did not reach’ and this court also

declines to decide this argument.

This court agrees with the court below that a review of the

decision of the Secretary must be limited to an examination of

the evidence before the administrative law judge. The court is

not allowed to look at evidence beyond the record in determin-

ing whether the criteria of substantial evidence was met.

Mann v. Gardner, 380 F.2d 182, 187 (5th Cir. 1967). Jordan did

not put before the administrative law judge the findings of the

Court of Claims or the 1962 medical report upon which finding

of fact 21.(a) was based. This court is aware that Jordan was

without representation during the proceedings before the

ALJ. We, therefore, do not find the omissions from the record

controlling. We reach this conclusion because even if the find-

ing of fact about Jordan’s ability to perform his job had been

!The court below instead concluded that the Court of Claims

decision was extra-record evidence which could not be considered.

A i AO EA OE LT LO A LL GL ET A TS A OT SC OLE IG LT LIE,

20a

part of the record,” he still would not have been disabled under

the terms of the Act before June 30, 1963.

The claimant bears the initial burden of establishing his

disability. To meet this burden, the claimant must prove that

he is unable to perform his previous work. Walden v. Schweik-

er, 672 F.2d 835, 8389-39 (11th Cir. 1982). In this case, the ALJ

noted that Jordan worked at the Montgomery VAH for a

three-year period from 1961 until 1964. Although there is no

support for his determination that Jordan performed to the

satisfaction of the hospital, the ALJ correctly found that Jor-

dan continued to work for over a year after he last met the

special earnings requirement of the Act. Evidence in the rec-

ord also indicates that Jordan may have worked for another

period which ended in 1966. Whether or not an examining

physicial questioned Jordan’s ability to handle the nursing

assistant job (finding of fact 21.(a)), it is ciear that that Jordan

continued to hold down that job well past June 30, 1963.

The Secretary’s decision that Jordan was not disabled on the

applicable date is supported by substantial evidence. Sub-

stantial evidence consists of such relevant evidence as a

reasonable person would accept as adequate to support a con-

2 We note that Jordan’s own testimony presented the administra-

tive law judge with the contention that Jordan was unable to perform

the duties for which he was employed.

Question: Mr. Jordan, when you were an employee at the VA

Hospital in Tuskegee, did they grant you any special considera-

tion due to the fact that you were a veteran, due that you were a

disabled veteran?

Answer [Mr. Jordan]: Yes, sir. When I was taken on the job,

Dr. Marsh told me that I was not physically fit to do any work.

He’s retired and still living in this area and he stated that I was

not physically able to work but due to—at that time I had to buya

lot = medicine and he did that to help me to be able to buy my

medicine.

Record, Vol. 2 at 51.

3 This fact was never conclusively established. Jordan testified that

he stopped work in 1964.

ds Ne PR a PEE ene IT SP Rt NI ote hae or

2la

clusion. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.

1983). This standard of review does not relieve the court of its

responsibility to scrutinize the entire record to ascertain

whether substantial evidence supports each essential adminis-

trative finding. Walden v. Schweiker, 672 F.2d at 838. Such a

review has been undertaken here. Judgment of the district

court is thereby AFFIRMED.

22a

APPENDIX E

AGnited States Court of Appeals

FOR THE ELEVENTH CIRCUIT

NO. 82-7246

D.C. Docket No. CA80-116-N

HERBERT JORDAN,

Plaintiff-Appellant,

versus

MARGARET M. HECKLER, Secretary of the

Department of Health and Human Services,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

Before TJOFLAT, VANCE and CLARK, Circuit Judges.

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FILED

MAR 28 1984

SPENCER D. MERCER

CLERK

JUDGMENT

This cause came on to be heard on the transcript of the record

from the United States District Court for the Middle District of

Alabama, and was argued by counsel;

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this Court that the Judgment of the

23a

said District Court in this cause be and the same is hereby,

AFFIRMED;

It is further ordered that plaintiff-appellant pay to

defendant-appellee, the costs on appeal to be taxed by the

Clerk of this Court.

Entered: January 31, 1984

For the Court: Spencer D. Mercer, Clerk

By: [illegible]

DEPUTY CLERK

ISSUED AS MANDATE: MAR 28 1984

24a

APPENDIX F

In The Anited States Court of Appeals

FoR THE ELEVENTH CIRCUIT

No. 82-7246

HERBERT JORDAN,

Plaintiff-Appellant,

versus

MARGARET M. HECKLER, Secretary of the

Department of Health and Human Services,

Defendant-A ppellee.

Appeal From The United States District Court

For The Middle District Of Alabama

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FILED

MAR 20 1984

SPENCER D. MERCER

CLERK

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion January 31, 1984, 11 Cir., 198_, ___. F.2d —__).

(MAR 20 1984)

Before TJOFLAT, VANCE and CLARK, Circuit Judges.

PER CURIAM: |

(/) The Petition for Rehearing is DENIED and no member

of this panel nor other Judge in regular active service on the

Court having requested that the Court be polled on rehearing

re eee tee a See

25a

en bane (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 26), the Suggestion for Rehearing En

Banc is DENIED.

( ) The Petition for Rehearing is DENIED and the Court

having been polled at the request of one of the members of the

Court and a majority of the Circuit Judges who are in regular

active service not having voted in favor of it (Rule 35, Federal

Rules of Appellate Procedure; Eleventh Circuit Rule 26), the

Suggestion for Rehearing En Banc is also DENIED.

( ) Amember ofthe Court in active service having requested

a poll on the reconsideration of this cause en banc, and a

majority of the judges in active service not having voted in

favor of it, rehearing en banc is DENIED.

ENTERED FOR THE COURT:

Thomas A. Clark

THomas A. CLARK

United States Circuit Judge

26a

APPENDIX G

DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE

SOCIAL SECURITY ADMINISTRATION

BUREAU OF HEARINGS AND APPEALS

DECISION

In the case of

Herbert Jordan (Claimant)

Claim for

Period of Disability and

Disability Insurance Benefits

416-40-7273 (Social Security Number)

This case is before the Administrative Law Judge on a request

for hearing timely filed by the claimant. The hearing was held

in Montgomery, Alabama, on August 18, 1975, and the

claimant appeared in person and testified.

ISSUES

The general issues before the Administrative Law Judge are

whether the claimant is entitled to a period of disability and to

disability insurance benefits under Section 216(i) and 223,

respectively, of the Social Security Act, as amended. The

specific issues are whether the claimant was under a “dis-

ability,” as defined in the Act and, if so, when such disability

commenced and the duration thereof; and whether the special

earnings requirements of the Act are met for the purpose of

entitlement.

LAW AND REGULATIONS

Section 216(i) of the Social Security Act provides for the

establishment of a period of disability, and Section 223 of the

Act provides for the payment of disability insurance benefits

where the requirements specified therein are met.

27a

Section 223(d)(1) of the Social Security Act defines disability

(except for certain cases of blindness) as the “inability to en-

gage in substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be

expected to last for a continuous period of not less than 12

months.”

Section 223(d)(2)(A) further provides that “an individual (ex-

cept a widow, surviving divorced wife, or widower for pur-

poses of Section 202(e) or (f) . . .) 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, educa-

tion, and work experience, engage in any 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.”

Section 223(d)(3) further states “For purposes of this subsec-

tion, a ‘physical or mental impairment’ is an impairment that

results from anatomical, physiological, or psychological abnor-

malities which are demonstrable by medically acceptable clini-

cal and laboratory diagnostic techniques.”

Section 404. 1524(c) of the Regulation No. 4 states, in part, that

the “evidence shall also describe the individual’s capacity to

perform significant functions such as the capacity to sit, stand,

or move about, travel, handle objects, hear or speak, and, in

cases of mental impairment, the ability to reason or to make

occupational, personal, or social adjustments.”

EVIDENCE CONSIDERED

The Administrative Law Judge has carefully considered all the

testimony adduced at the hearing, the arguments made, any

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briefs submitted, and all credible evidence set out in the List of

Exhibits attached to this decision.

EVALUATION OF THE EVIDENCE

The evaluation of the medical evidence in the record should be

directed primarily to determining, insofar as possible, the

precise degree of functional loss or restriction that results from

the claimant’s physical and/or mental impairments. In other

words, it is the extent of limitation of his ability to engage in

physical activity such as sitting, walking, reacting, manipulat-

ing, etc., and to perform normal mental functions, e.g.,

remembering, reasoning, etc., that determine the true sever-

ity of his impairment, and it is only through an assessment of

these capacities that a meaningful decision can be made with

respect to the ability to engage in substantial gainful activity.

However, to merit consideration and a determination of “dis-

ability,” as defined in the Social Security Act, an allegation of

functional limitations must be “medically determinable,” e.g.,

it must be shown that it results from organic dysfunction or

other demonstrable causes. In this regard, Section 404.1501(c)

of Social Security Administration Regulations No. 4 states:

“(c) Definition of Impairment. A physical or mental

impairment is an impairment that results from anatomic-

al, physiological or oe abnormalities which are

demonstrable by medically acceptable clinical and

laboratory diagnostic techniques. Statements of the appli-

cant, including his own description of his impairment

(symptoms) are, alone, insufficient to establish the pre-

sence of a physical or mental impairment.”

The claimant appeared and testified at the hearing concerning

his problems and their original onset. The claimant was in the

Army for a number of years and had a stroke in approximately

1955, and recurrent problems of such a nature until approxi-

mately 1958 when he was discharged in December at the ex-

piration of his term of enlistment. The claimant contends that

he was disabled at such time and in fact, began receiving

Veterans Administration benefits for disability shortly after

his discharge. After a lengthy proceeding through the adminis-

29a

trative processes with the military, the claimant was success-

ful in 1972 in having his original discharge set aside and in its

place a medical retirement for disability entered. The claimant

contends that he has been continuously disabled since his re-

tirement from the Army in December of 1958. He states that he

has problems associated with a stroke which made his left side

weak and made his arm useless, and which has become more

complicated with time. At the present time the claimant has

diabetes, enlarged heart and severe pain according to his testi-

mony.

The claimant filed an application for a period of disability and

disability insurance benefits in July of 1959. This application

was denied and the claimant did not pursue this application

further at such time. The claimant intended to go to school

after his retirement from the military and attempt to get an

education. The claimant stated that he was unable to continue

in such type activities and abandoned this project. The

claimant, thereafter in 1961, undertook work at the Veterans

Administration Hospital as a nursing assitant. He testified

that this duty was light duty and that many concessions were

made in his performance of these duties. He stated that he got

the job on his own application without any outside assistance or

help. The claimant worked at this job until September of 1964.

He stated that he had to quit at this time because of another

stroke which he had which prevented him from further being

able to work. The claimant then worked another period of time

at the VA Hospital in Montgomery, Alabama, such period of

work ending in December of 1966.

The claimant stated that his work activities at the VA Hospital

were not of a substantial nature in that he was consistently

absence from his duties and it was not expected or required to

perform on a full time basis as other employees were expected

to perform. Exhicit No. 23, introduced at the hearing, is an

extract of the claimant’s summary of his leave record while in

Civil Service. This record shows that the claimant utilized fully

all sick leave available to him and all the annual leave available

to him, and in addition, took leave without pay for some 464

hours during this period of work.

30a

The claimant filed applications for a period of disability and

disability insurance benefits in 1964, 1967 and again in 1969.

The claimant did not pursue any of these applications to the

hearing level.

Although there are possible grounds for dismissal of the cur-

rent application due to administrative finality of several of the

prior applications; nevertheless, the Administrative Law

Judge felt that the claimant was entitled to a full and complete

hearing, never having had one before.

The claimant has not worked in covered employment since his

retirement from the military effective in December of 1958,

and for such reason last meets the special earnings require-

ments of the Act of disability insurance purposes on June 30,

1963. In order to be entitled to benefits the claimant must be

able to show that he became disabled within the meaning of the

Social Security Act, as amended, at sometime prior to June 30,

1963 and that such disability has continued up until at least

fourteen months prior to the date of the filing of the application

for benefits herein.

The position of the claimant was very capably put forward by

Mr. Charlton, a DAV representative, at the hearing; however,

the Administrative Law Judge is not satisfied from all the

eveidence that the claimant became disabled within the mean-

ing of the Social Security Act, as amended, at a time prior to

June 30, 1963, and that such disability has continued up until at

least fourteen months prior to the date of the filing of the

current application herein. The indications of Mr. Charlton are

that the Veterans Administration has a policy of hiring handi-

capped persons and keeping them on the payroll as long as

possible. The Administrative Law Judge accepts this as a

correct statement of the administrative policy of the Veterans

Administration, including the Veterans Administration Hospi-

tal administered by such Administration.

After a careful review of all the medical evidence in the file and

careful weighing of the testimony of the claimant at the hear-

ing, the Administrative Law Judge is not satisfied that the

3la

claimant became disabled within the meaning of the Social

Security Act, as amended, at any time prior to June 30, 1963,

the date he last met the special earnings requirements of the

Act. The evidence indicated that the claimant secured on his

own initiative, using his veteran’s preference, a regular Civil

Service job with the Veterans Administration Hospital. The

claimant worked at this job from November 13, 1961 until

September of 1964 when he sated he had to quit as a result of

another stroke. The claimant was working during this approxi-

mately three year period at work which, presumably, was

available in the hospital and he performed to the obvious

satisfaction of the parties in this work activity. He continued to

work for over one year after he last met the special earnings

requirements of the Act, and according to his own testimony,

the reason for his ceasing to be able to work at this type activity

was the stroke which he had at such time. Exhibit No. 19in the

record, in summarizing the claimant’s history from records

available, indicates that the claimant was hospitalized in Sep-

tember of 1964 with the impression that he had had a throm-

bosis of the right paramedian branches of the basilar artery.

This is consistent with the claimant’s statement that he had

another stroke in September of 1964 which prevented his fur-

ther work activities at the hospital. It does appear that after

some recovery the claimant did return to work at the Veterans

Administration Hospital in Montgomery, Alabama, in 1966

and was on the rolls through May 8, 1967.

The claimant has failed to establish to the satisfaction of the

Administrative Law Judge that he became disabled within the

meaning of the Social Security Act, as amended, at any time

prior to the June 30, 1963, the date he last met the special

earnings requirements of the Act.

FINDINGS

Based upon all the credible evidence in the record, including

the List of Exhibits filed herein and the testimony taken at the

32a

hearing, the Administrative Law Judge makes the following

findings in this case:

1.

or

The claimant met the special earnings requirements

of the Act on September 1, 1955, and continued to

meet the special earnings requirements of the Act

through June 30, 1963.

The claimant is forty-five years of age and has worked

in the military and as a orderly and nursing assistant

in the Veterans Administration Hospital.

The claimant suffered a stroke in approximately 1956

while on duty in the military and was discharged from

the military and subsequently, such discharge was

changed to a medical retirement for disability. The

claimant has been receiving Veterans Administration

benefits for disability since the approximate date of

his discharge from the service in December of 1958.

The claimant was employed as a Civil Service employ-

ee with the Veterans Administration Hospital as a

nursing assistant from November, 1961 pepe Sep-

tember, 1964, at which time he suffered an additional

stroke resulting in his ceasing to be able to perform his

regular work activities at the Veterans Administra-

tions Hospital.

The claimant has failed to establish that his medical

condition was such as to preclude him from perform-

ing any type of substantial gainful work activity con-

sistent with his age, education and 1 get work experi-

ence at any time prior to June 30, 1963, the date he last

met the special earnings requirements of the Act.

The Administrative Law Judge has considered the

multiple complaints of the claimant concerning his

headaches, his heart and chest pains, and his weak-

ness of extremities, which were primarily related to

his claim for disabilit moet red with a stroke and

does not find that such condition, either singularly or

in concert, were of such severity prior to June 30,

1963, as would prevent him from performing sub-

stantial gainful work activity.

The claimant has failed to establish that he became

disabled within the meaning of the Social Security

33a

Act, as amended, at any time prior to June 30, 1963,

the date he last met the special earnings requirements

of the Act.

DECISION

Based on the application filed on July 27, 1973, the Administra-

tive Law Judge finds that the claimant is not entitled to a

period of disability and to disability insurance benefits under

the provisions of Section 216(i) and 223, respectively, of the

Social Security Act, as amended.

Bogue M. Waller

BoGuE M. WALLER

Administrative Law Judge

Date: November 13, 1975