SSR 64-47c: SECTIONS 216(i) and 223(c)(2). -- DISABILITY -- ABILITY TO ENGAGE IN SUBSTANTIAL GAINFUL ACTIVITY

20 CFR 404.1502

SSR 64-47c

CELEBREZZE v. O'BRIENT , 323 F.2d 989 (5th Cir. 1963)

WISDOM, Circuit Judge :

The claimant, Clarence A. O'Brient, brought this action against the

Secretary of Health, Education and Welfare, under Section 205(g) of the

Social Security Act, 53 Stat. 1368, 42 U.S.C.A. 405(g), to obtain judicial

review of a final decision of the Secretary denying his application to

establish a period of disability and for disability insurance benefits

under Sections 216(i), 64 Stat. 492 and 223, 70 Stat. 815 of the Act. 42

U.S.C.A. 416(i), 423. O'Brient's impairment is a paralyzed right diaphragm

of unknown origin. The district court set aside the Secretary's decision

on the ground that there was no substantial evidence to support the

hearing examiner's findings. We reverse.

The Social Security Act, 42 U.S.C.A. § 405(g) provides that "The findings

of the Secretary as to any fact, if supported by substantial evidence

shall be final . . ." This finality attaches to inferences supported by

substantial evidence. Brunenkant v. Celebrezze , 7 Cir. 1962, 310

F.2d 355. The presence of a disease or a medically determinable impairment

does not satisfy the requirements of the Act unless the disease or the

impairment causes " inability to engage in any substantial gainful

activity". 42 U.S.C.A. 416(i), 423(c). Judge Rives of this Court, sitting

by designation, concluded that "any substantial gainful work" must have

reference to a claimant's education, training, experience, and physical

and mental capacities, in addition to the effect of the impairment on

former work activities. Aaron v. Flemming , M.D.Ala. 1958, 168

F.Supp. 291, 295. This test has become standard. "Thus, even though severe

physical limitations be established, it is still necessary in applying the

legal standard to relate this limitation to the claimant's work history

and educational background." Underwood v. Ribicoff , 4 Cir. 1962,

298 F.2d 850, 852. In that case the court found for the claimant

aron v. Flemming , M.D.Ala. 1958, 168

F.Supp. 291, 295. This test has become standard. "Thus, even though severe

physical limitations be established, it is still necessary in applying the

legal standard to relate this limitation to the claimant's work history

and educational background." Underwood v. Ribicoff , 4 Cir. 1962,

298 F.2d 850, 852. In that case the court found for the claimant.

Underwood was sixty-five and by training and experience was equipped only

for work demanding a considerable amount of physical exertion; he was

"dependent for his living upon the ability of his body to function at near

capacity". Using the same test in Hicks v. Flemming , 5 Cir. 1962,

302 F.2d 470, we found for the Secretary. But Hicks had vocational

retraining, found a new job, worked in an automobile electrical shop, had

been a dealer in a professional poker game, and for two years had earned

about $1300 a year.

In his application, O'Brient stated that he was unable to work on January

15, 1960. The claimant was in the University Hospital in January 1960 for

removal of a knot behind his right knee when he complained of chest pains.

Dr. [R] diagnosed the chest condition as eventration of the right

diaphragm. [1] X-rays showed a

paralyzed right hemi-diaphragm and no abnormalities in the

sub-diaphragmatic area. The stay in the hospital was uncomplicated. He was

discharged after ten days, because "the patient had reached maximum

hospital benefit." Later medical reports filed in late 1961 showed mild

emphysema but improvement in the claimant's diaphragmatic condition and in

his breathing. Dr. [J] of Jackson, Mississippi, reported negative results

from a clinical examination of heart and lungs, that "most of the

patient's complaints (numbness in the right arm and burning sensations in

his legs, in addition to the paralyzed diaphragm) are without organic

foundation", and that there was no evidence of disability. Dr

he claimant's diaphragmatic condition and in

his breathing. Dr. [J] of Jackson, Mississippi, reported negative results

from a clinical examination of heart and lungs, that "most of the

patient's complaints (numbness in the right arm and burning sensations in

his legs, in addition to the paralyzed diaphragm) are without organic

foundation", and that there was no evidence of disability. Dr. [R's]

second report described the diaphragmatic condition as "gradually

progressive", noted shortness of breath, and recommended sedentary

activity.

O'Brient was forty-six years old in 1960. He has a high school education.

He has been trained, and has worked, chiefly in form carpentry; has served

as a foreman and kept time and distribution records; done cabinet work on

the side; knows how to build a house and "contracted one or two" in the

past; knows how to read construction plans; has been able to fix his own

television set. The examiner described O'Brient as "well- developed and

well-nourished, suntanned and in good spirits". The examiner found no

perceptible shortness of breath, no limp, and no discernible abnormalities

or physical defects. O'Brient testified that the pain in his chest and

difficulty in breathing, after exertion, and a pain in his legs when

climbing or lifting prevented his returning to construction work. His

breathing had improved somewhat because of breathing exercises. At the

time of the hearing, he walked about a mile a day, drove a car, gardened,

and had done some light carpentry. The examiner found him "mentally

alert", with an "exceptionally good" language facility, "knowledgeable",

"cooperative", " in good spirits", "willing to work". In the hearing the

claimant stated: "I want to do something. I'm not going to lay around . .

. I would like to take a course in something that would benefit me

mile a day, drove a car, gardened,

and had done some light carpentry. The examiner found him "mentally

alert", with an "exceptionally good" language facility, "knowledgeable",

"cooperative", " in good spirits", "willing to work". In the hearing the

claimant stated: "I want to do something. I'm not going to lay around . .

. I would like to take a course in something that would benefit me. They

tell me now if I don't change my trade I'm not going to get any better."

O'Brient himself said that he had "gotten quite a bit better." He felt,

however, that he was entitled to some assistance for the period during

which he had been "completely knocked out" and had "gone in debt". Six

months after he filed this action, the Division of Vocational

Rehabilitation of the State of Mississippi determined that O'Brient was

not disabled by his impairment; that he could continue to work as a

supervisor.

Mr. O'Brient's purpose in filing a claim for disability centered in a

desire to obtain financial relief, pending re- employment. He stated, for

example:

On these and other facts, and on the basis of the medical and vocational

reports, the hearing examiner found that O'Brient's health was improving

and that the impairment was not sufficient to prevent him from performing

sedentary shop work or supervisory work. He found that thanks to

O'Brient's high school education, manual skills, and previous experience,

O'Brient was capable of being retrained with little difficulty and,

without any special or prolonged course of training, was capable of

earning a substantial living in radio and television repairs, in

supervising construction work, and in sedentary or semi-sedentary jobs.

r supervisory work. He found that thanks to

O'Brient's high school education, manual skills, and previous experience,

O'Brient was capable of being retrained with little difficulty and,

without any special or prolonged course of training, was capable of

earning a substantial living in radio and television repairs, in

supervising construction work, and in sedentary or semi-sedentary jobs.

The district court's decision appears to have been based, at least in

part, on the claimant's assertion that in the general area where he lived

no light work was available as a parking lot attendant, night watchman, or

janitor. The district court stated that "conjectural possibilities" are

not evidence that O'Brient "was capable of gainful employment available to

him".

Congress might well have defined disability in broad terms under the

Social Security Act and related it to unemployment by qualifying "any

substantial gainful activity" with the words "available in the claimant's

immediate working area" or similar words. That is not the statutory test;

the Act is not an unemployment compensation law. Here, as in Hicks :

The explicit congressional command is that the impairment must cause

"inability to engage in any substantial gainful activity". See Gotshaw

v. Ribicoff , 4 Cir. 1962, 307 F.2d 840, 844; Pearman v.

Ribicoff , 4 Cir. 1962, 307 F.2d 573, 574; and Adams v.

Flemming , 2 Cir. 1960, 276 F.2d 901.

at is not the statutory test;

the Act is not an unemployment compensation law. Here, as in Hicks :

The explicit congressional command is that the impairment must cause

"inability to engage in any substantial gainful activity". See Gotshaw

v. Ribicoff , 4 Cir. 1962, 307 F.2d 840, 844; Pearman v.

Ribicoff , 4 Cir. 1962, 307 F.2d 573, 574; and Adams v.

Flemming , 2 Cir. 1960, 276 F.2d 901.

In this case, as in all of these disability cases under the Act, the

plaintiff asks the inevitable rhetorical question: What jobs are there?

For the Secretary, "What jobs are there" means, within the context of the

Act, what kinds of work can the claimant perform, not what jobs are there

available for him in Kosciusko, Mississippi. See Kerner v.

Flemming , 2 Cir. 1962, 283 F.2d 916; Graham v. Ribicoff , 9 Cir.

1962, 295 F.2d 391; Rinaldi v. Ribicoff , 2 Cir. 1963, 305 F.2d 548.

In the light of this correct understanding of the law, the Secretary's

showing of O'Brient ability to perform light work of a various nature is

all the answer he is required to make to the claimant.

When a claimant's former employment is the only type of work he is

capable of performing, then "former work" means "any work" and the

requirements of the Act are met. This was the situation in Ferran v.

Flemming , 5 Cir. 1961, 293 F.2d 568; Butler v. Flemming , 5 Cir.

1961, 288 F.2d 591; Flemming v. Booker , 5 Cir. 1960, 283 F.2d 321; Ribicoff v. Hughes , 8 Cir. 1961, 295 F.2d 833; Kohrs v.

Flemming , 8 Cir. 1959, 272 F.2d 731; Kerner v. Flemming , 2 Cir.

1960, 283 F.2d 916. But impairment to carry on one's former work is

not enough in itself to satisfy the statutory definition of "any

substantial gainful activity." Thus in Hicks this Court pointed out

that the word "any" includes former work and work of a different

nature:

See also Gotshaw v. Ribicoff , 4 Cir. 1962, 307 F.2d 840.

Taking the record as a whole, we find that there is substantial evidence

to support the Secretary's determination.

r work is

not enough in itself to satisfy the statutory definition of "any

substantial gainful activity." Thus in Hicks this Court pointed out

that the word "any" includes former work and work of a different

nature:

See also Gotshaw v. Ribicoff , 4 Cir. 1962, 307 F.2d 840.

Taking the record as a whole, we find that there is substantial evidence

to support the Secretary's determination.

The judgment is REVERSED .

[1] The Diaphragm is defined in

Blakiston's New Gould Medical Dictionary (2d ed. 1956) as a

"musculo-tendinous partition, especially that partition muscular at the

circumference and tendinous at the center, which separates the thorax and

abdomen and is the chief muscle of respiration and expulsion. * * *

Eventration of the diaphragm is defined as "a condition where there is

defective muscular action of the diaphragm * * *"