SSR 74-7c: Rescinded 1982

20 CFR 404.1502(b)

SSR 74-7c

Gold v. Weinberger , 473 F.2d 1376 (5th Cir., 1973)

Where a claimant for disability insurance benefits argued that before his

claim would be denied on the basis of a vocational expert's testimony, the

expert must make an independent determination that the claimant had

reasonable opportunity to obtain work and where claimant contended that

expert's use of a dictionary of job titles without a personal interview

was not cognizable evidence that the jobs enumerated were reasonably

available to claimant, held , the 1967 amendments to the Social

Security Act make it "absolutely clear" that consideration of whether an

applicant would be hired for a job he can do is "irrelevant"; and further held , testimony of vocational expert as to existence of

work in the national economy that claimant could perform may be considered

"substantial evidence" and it need not be discounted because the expert

had not personally interviewed the claimant.

DYER, Circuit Judge: Gold brought this action pursuant to Section 205(g)

of the Social Security Ct, 42 U.S.C. A. §405(g), to review the January 22,

1970, decision of the Secretary of Health, Education and Welfare denying

him disability benefits. On September 30, 1970, the district court

reversed the Secretary's determination and remanded the case to the

Secretary for a new hearing. Following a second hearing, the Secretary

determined that Gold had become disabled on April 1, 1970, and awarded

disability benefits commencing on that date. Gold petitioned for further

review in the district court seeking to reverse the Secretary's

determination insofar as it held that Gold had not been disabled between

April 1967 and April 1970. Subsequently, the district court again reversed

the Secretary's determination with respect to the 1967-1970 period and

remanded the case to the Secretary for another hearing. From that order

the Secretary appealed. We reverse.

review in the district court seeking to reverse the Secretary's

determination insofar as it held that Gold had not been disabled between

April 1967 and April 1970. Subsequently, the district court again reversed

the Secretary's determination with respect to the 1967-1970 period and

remanded the case to the Secretary for another hearing. From that order

the Secretary appealed. We reverse.

It is undisputed that, since April 18, 1967, Gold has suffered from a

medically determinable myocardial infarction and arteriosclerotic heart

disease which prevented him from returning to his former work as an

airline pilot. Further, the parties agree that Gold's symptomatology

significantly changed by April 1970 with the onset of angina pectoris, and

that since that date he has been unable to engage in any type of

substantial gainful activity.

There was a conflict of medical evidence with respect to Gold's "inability

to engage in any substantial gainful activity" within the terms of the

amended definition of "disability" in the Social Security Act, §§216(i)

and 223(d), 42 U.S.C.A. §§416(i) and 423(d), during the 1967-1970

period.

In the opinion of vocational experts, during this period Gold had the

ability to engage in light and sedentary work—such as manager of an

office building, insurance claims examiner or adjuster, salesman of

aircraft and aircraft parts, travel agent, manager of a general store, and

organ or piano salesman—and that these jobs existed in significant

numbers in both the region where Gold lives and other regions.

Gold argues that a vocational expert must make an independent

determination that Gold had an opportunity to obtain work. He contends

that in light of the failure to personally interview him, the use of a

dictionary of job titles is not evidence that the jobs enumerated by the

expert are reasonably available to Gold.

The short answer is that Congress amended the law by the addition to the

Act in 1968 of section 223(d)(2)(A), which provides:

pendent

determination that Gold had an opportunity to obtain work. He contends

that in light of the failure to personally interview him, the use of a

dictionary of job titles is not evidence that the jobs enumerated by the

expert are reasonably available to Gold.

The short answer is that Congress amended the law by the addition to the

Act in 1968 of section 223(d)(2)(A), which provides:

(A) an individual * * * shall be determined to be under a disability only

if his physical or mental impairment or impairments are of such severity

that he is not only unable to do his previous work but cannot, considering

his age, education, and work experience, engage in any other kind of

substantial gainful work which exists in the national economy, regardless

of whether such work exists in the national economy, regardless of whether

such work exists in the immediate area in which he lives, or whether a

specific job vacancy for him, or whether he would be hired if he applied

for work. * * *

On appeal Gold contends that the district court's order of remand is not

final and therefore is not appealable. We disagree. The district court not

only denied the Secretary's motion for summary judgment and reversed the

decision of the Secretary, but also determined that on remand the

Secretary had the burden of proving that reasonable job opportunities were

available to Gold for the period April 1967 through April 1970. It further

held that the Secretary's burden could not be met by a vocational expert

testifying concerning job opportunities from an occupational manual and

without the benefit of a personal interview with Gold. Unless the

Secretary is allowed to appeal from this order he will never be able to

reach the questions involved. Cohen v. Perales , 5 Cir. 1969, 412

F.2d 44, rev'd on other grounds, Richardson v. Perales , 1971, 402

U.S. 389.

d not be met by a vocational expert

testifying concerning job opportunities from an occupational manual and

without the benefit of a personal interview with Gold. Unless the

Secretary is allowed to appeal from this order he will never be able to

reach the questions involved. Cohen v. Perales , 5 Cir. 1969, 412

F.2d 44, rev'd on other grounds, Richardson v. Perales , 1971, 402

U.S. 389.

Gold next complains that since his appeal was taken from the first remand

order, and since the second remand order was identical to the first order,

the time for an appeal has somehow run. The record refutes this argument.

The only similarity between the first and second remand orders is the

holding that reliance upon a catalog of job opportunities without

independent determination that a reasonable opportunity existed for

obtaining such work and without benefit of a personal interview was

insufficient to meet the Secretary's burden. This erroneous legal standard

was incorporated in the first remand order and the error was compounded in

the second remand order. "The newly amended law makes it absolutely clear

that the consideration whether an applicant would be hired is irrelevant." King v. Finch , 5 Cir. 1970, 428 F.2d 70. See also Menese v.

Secretary of Health, Education and Welfare , D.C. Cir. 1971, 442 F.2d

803; Brown v. Finch , 5 Cir. 1970, 429 F.2d 80. The testimony of the

vocational expert is substantial evidence that Gold was, from April 1967

to April 1970, capable of engaging in substantial gainful activity which

existed in the national economy. See Chavies v. Finch , 9 Cir. 1971,

443 F.2d 356; Gentile v. Finch , 3 Cir. 1970, 423 F.2d 244; Wright v. Gardner , 7 Cir. 1968, 403 F.2d 646; Mullins v.

Gardner , 6 Cir. 1968, 396 F.2d 139. Furthermore, the vocational

expert's testimony need not be discounted because he had not interviewed

Gold. Kyle v. Cohen , 4 Cir. 1971, 449 F.2d 489. Cf. Peoples v.

Richardson , 5 Cir. 1972,—F.2d—[No. 72—1616, November

1, 1972].

971,

443 F.2d 356; Gentile v. Finch , 3 Cir. 1970, 423 F.2d 244; Wright v. Gardner , 7 Cir. 1968, 403 F.2d 646; Mullins v.

Gardner , 6 Cir. 1968, 396 F.2d 139. Furthermore, the vocational

expert's testimony need not be discounted because he had not interviewed

Gold. Kyle v. Cohen , 4 Cir. 1971, 449 F.2d 489. Cf. Peoples v.

Richardson , 5 Cir. 1972,—F.2d—[No. 72—1616, November

1, 1972].

Finally, we are convinced that the Secretary's determination that Gold was

not disabled for the period in question is supported by substantial

evidence. Gold worked as an insurance salesman between November 1967 and

November 1968, making $8,249.25 in gross commissions in 1968. Three

doctors opined that Gold's heart condition indicated a "slight limitation

of physical activity," while one doctor felt that modest exertion would

cause angina or fatigue. The first hearing examiner rejected the latter

opinion as being inconsistent with the advice given by the doctor to Gold

that he should walk half a mile a day or play golf. The five testifying

doctors also held different opinions concerning Gold's vocational ability;

two believed that Gold could do light or sedentary work; one thought that

Gold could do part time work at home; and two felt that he could not

return to significant gainful employment. The Secretary relied upon the

opinions of the two vocational experts and two doctors, all of whom agreed

that Gold could do light work.

When we view the expert testimony in the light most favorable to Gold we

find substantial evidence that Gold was not disabled from April 1967 to

April 1970 within the meaning of the Act. In so concluding we do not

disregard the contrary medical evidence. These opinions, however, present

merely a conflict in the evidence which the Secretary was called upon to

resolve. Martin v. Finch , 5 Cir. 1969, 415 F.2d 793.

testimony in the light most favorable to Gold we

find substantial evidence that Gold was not disabled from April 1967 to

April 1970 within the meaning of the Act. In so concluding we do not

disregard the contrary medical evidence. These opinions, however, present

merely a conflict in the evidence which the Secretary was called upon to

resolve. Martin v. Finch , 5 Cir. 1969, 415 F.2d 793.

The judgment of the district court is reversed and the case is remanded to

the district court with directions to enter summary judgment in favor of

the Secretary.

Reversed and Remanded with Directions.