Doris A. Taylor v. Caspar Weinberger, Secretary of Health, Education and Welfare

512 F.2d 664, 1975 U.S. App. LEXIS 15621
CourtCourt of Appeals for the Fourth Circuit
DecidedMarch 17, 1975
Docket74-1570
StatusPublished
Cited by185 cases

This text of 512 F.2d 664 (Doris A. Taylor v. Caspar Weinberger, Secretary of Health, Education and Welfare) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doris A. Taylor v. Caspar Weinberger, Secretary of Health, Education and Welfare, 512 F.2d 664, 1975 U.S. App. LEXIS 15621 (4th Cir. 1975).

Opinion

CRAVEN, Circuit Judge:

This is an appeal under 42 U.S.C. § 405(g) (1970) from the denial of Social Security disability benefits. The adverse decision of the examiner, after a hearing, was affirmed by the appeals council; the district court granted the Secretary’s motion for summary judgment. The question presented on appeal is whether the Secretary, upon the claimant’s prima facie showing of disability, satisfied his then-created burden of going forward with proof of the claimant’s vocational capacity to perform other jobs. Finding no substantial evidence in the record to support the asserted vocational capacity, we reverse and remand with direction to enter judgment for Mrs. Taylor.

I.

It is not disputed that Mrs. Taylor presented a prima facie case of disability. Her prior customary occupation was that of clothes presser in a laundry. In November 1969 the lower portion of her left lung was removed. Subsequent medical history indicates diagnosis and treatment of diabetes, chronic bronchitis, thyroid condition, and arteriosclerotic heart disease with accompanying symptoms of shortness of breath and weakness and pain in the left side and limbs. Since the clothes presser job required her to stand, walk, and stoop all day, with the attendant extremes of temperature and dampness, a return thereto was foreclosed.

As the lower court correctly ruled, this prima facie case of disability to perform her customary occupation due to a medical condition shifted the burden of going forward from her to the Secretary. Hicks v. Gardner, 393 F.2d 299 (4th Cir. 1968); Hernandez v. Weinberger, 493 F.2d 1120 (1st Cir. 1974); Meneses v. Secretary of H.E.W., 143 U.S.App.D.C. 81, 442 F.2d 803 (1971).

The Secretary’s burden under the statute, 42 U.S.C. § 423(d)(2)(A), is twofold: (1) the claimant, given his age, education, and work experience, has the capacity to perform a specific job (2) which exists in the national economy. Garrett v. Richardson, 471 F.2d 598 (8th Cir. 1972). Addressing himself to the former — the only one at issue here — the Secretary identifies three possible sources of the substantial evidence needed to sustain his finding that Mrs. Taylor was capable of performing either as a keypunch or telephone operator, and therefore was not disabled. We find none of them persuasive.

Principal support was sought from the opinion of Dr. Antlitz, a specialist in cardiovascular diseases, who examined Mrs. Taylor in November 1972 at the request of the appeals council. His report, inter alia, stated:

The patient may be limited by the various disease states and post operative condition but does not appear to be completely disabled. She should be able to perform light and sedentary type work activity. 1

Additionally, hospital out-patient records indicated a recommendation for vocational rehabilitation. 2

*667 Citing the foregoing, the lower court concluded that the following finding and conclusion of the appeals council was supported by substantial evidence:

4. The claimant, who is 41 years old and has an llth-grade education, retains the ability to sit, stand, walk about and to use her arms and hands in light and sedentary occupations, such as keypunch operator and telephone operator. These occupations exist in significant numbers in the area where she resides.

Mrs. Taylor readily agreed with the use of a physician’s expertise to establish her physical ability to perform “light and sedentary” work in general. Error is claimed, however, in the further finding that she possessed the specific skills to perform as a keypunch or telephone operator.

The proposition that the Secretary may establish a specific vocational ability solely through medical evidence has been soundly rejected. We find the Seventh Circuit’s language highly persuasive on this point.

While the conclusions of a physician are probative with respect to a claimant’s physical symptoms, they cannot alone support a finding of employability. A physician can adequately offer his expertise, as this one did, to show that a claimant is physically able to perform “substantial gainful” employment. But, other factors, extraneous to a physical diagnosis, enter into an evaluation of a claimant’s ability to work.

Orzel v. Finch, 445 F.2d 150, 154 (7th Cir. 1971) (emphasis in original); accord, Hernandez v. Weinberger, supra, Garrett v. Richardson, supra.

Anticipating, perhaps, our agreement with Orzel, the Secretary asserts that his finding of employability rests on independent vocational evidence, namely, that Mrs. Taylor had received “some” training as a keypunch operator. We are referred to Mrs. Taylor’s- testimony before the hearing examiner in May 1972, set out in the margin. 3 But her *668 statements run counter to the Secretary’s finding: she found keypunching “very difficult to do” and, after six months, had not yet finished the six-week course, although she was “working at it.” In any case, her testimony hardly supplies the quantum of evidence necessary to show actual vocational skill. 4 Similarly inconclusive testimony by a claimant, a laundry presser, concerning her brief stint during pregnancy with the laundry’s darning and weaving machine “in no way” satisfied the Secretary’s burden in Hernandez v. Weinberger, supra, 493 F.2d at 1123.

A third source is advanced by the Secretary to supply the needed proof of employability: he may administratively “notice” that Mrs. Taylor possesses the specific vocational capacity for the jobs of keypunch and telephone operator. But while this and other circuits have agreed that the Secretary may administratively notice the existence of such jobs in the economy, 5 facts pertaining to the capacity of a specific individual can be supplied only by particularized proof. See Hernandez v. Weinberger, supra; 2 K. Davis, Administrative Law § 15.03 at 353 and § 15.10 at 403 (1958).

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Bluebook (online)
512 F.2d 664, 1975 U.S. App. LEXIS 15621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doris-a-taylor-v-caspar-weinberger-secretary-of-health-education-and-ca4-1975.