Felix JELINEK, Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Appellee

764 F.2d 507, 1985 U.S. App. LEXIS 19820, 10 Soc. Serv. Rev. 73
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 11, 1985
Docket84-5130
StatusPublished
Cited by72 cases

This text of 764 F.2d 507 (Felix JELINEK, Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Felix JELINEK, Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Appellee, 764 F.2d 507, 1985 U.S. App. LEXIS 19820, 10 Soc. Serv. Rev. 73 (8th Cir. 1985).

Opinions

HEANEY, Circuit Judge.

Felix Jelinek appeals from a district court order granting summary judgment to the defendant Secretary of Health and Human Services (Secretary). That order affirmed the Secretary’s decision to deny Jeli-nek’s application for social security disability benefits. For the reasons set forth below, we reverse the order of the district court, and remand for further proceedings.

Jelinek is a fifty-seven-year-old man with the equivalent of a high school education. He worked for five years in the dry cleaning business and then worked as an electrician at the University of North Dakota for about twenty years. On March 4, 1976, he underwent surgery for lung cancer. Jeli-nek returned to work several weeks later, but began to experience pain in the area of his incision. He worked part-time off and on for up to eight hours per day but never for a full week. Jelinek finally terminated his employment on May 3, 1977, after he had utilized all of his vacation and sick leave and the University would not allow him to continue working part-time.

Jelinek filed an application for social security benefits on March 27, 1978, alleging that he had become disabled on May 3, 1977, due to the pain resulting from his lung cancer surgery. The Secretary denied this claim initially and on reconsideration. Jelinek requested a hearing before an administrative law judge (AU). The AU dismissed the case on September 15, 1978, because Jelinek failed to appear for the hearing.

Jelinek filed a second application on March 23, 1979. The Secretary again denied benefits on May 16, 1979. Jelinek filed a third application on December 12, 1980, alleging the same disability as of May 3, 1977. The Secretary also denied this application initially and on reconsideration. Jelinek then sought and received a hearing before an AU which was held on November 20, 1981. The AU issued a decision on June 30, 1982, denying Jelinek’s claim. The AU found that there was no error in the May 16, 1979, denial of Jelinek’s March 23, 1979, application, and that Jelinek had failed to present new and material evidence which would justify reopening his claim. Thus, the AU concluded that this prior determination could not be reopened.

The AU went on to find that Jelinek was not disabled under the Social Security Act, because although he could not return to his former job as an electrician, he retained the residual functional capacity to perform light work. The AU also found that his complaints of pain were “not persuasive in light of the medical evidence of record and claimant’s activities,” and that the alleged pain was not sufficiently severe to prevent Jelinek from engaging in substantial gainful activity. The Appeals Council denied his request for review thereby making the AU’s decision the final decision of the Secretary.

Jelinek then filed suit in federal district court for the District of Minnesota on July 26, 1982, seeking review of the Secretary’s decision. Upon the recommendation of a magistrate, the district court granted summary judgment to the Secretary on May 14, 1984. Jelinek then brought this appeal.

The Secretary argues that the AU’s prior dismissal of Jelinek’s earlier application remains final and that the decision not to reopen the claim is not reviewable under Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Where a claim has been nevertheless reconsidered on the merits, however, it is properly treated as having been reopened as a matter of administrative discretion. McGowen v. Harris, 666 F.2d 60, 65-66 (4th Cir.1981). Consequently, the final decision of the Secretary denying such a claim is also subject to judicial review to the extent it has been reopened. Id.; see also Taylor v. Heckler, 738 F.2d 1112, 1114-15 (10th Cir.1984); Tucker v. Schweiker, 689 F.2d 777, 779 n. 1 (8th Cir.1982). In this case, the AU proceeded to reconsider Jelinek’s case on the merits immediately after concluding Jelinek’s earlier application could not be reopened. Re[509]*509view of the Secretary’s final decision on Jelinek’s claim is therefore proper.

Our task on review is to determine whether the Secretary’s decision denying disability is supported by substantial evidence. 42 U.S.C. § 405(g). Persons are considered disabled under the Social Security Act if they have an

inability to engage in any 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.

42 U.S.C. § 423(d)(1)(A).

Once claimants show their inability to perform their former job due to their disability, the burden then shifts to the Secretary to prove that they can perform some other kind of substantial gainful activity.1 Jackson v. Schweiker, 696 F.2d 630, 631 n. 1 (8th Cir.1983); Tucker v. Schweiker, 689 F.2d at 779.

Jelinek contends that there is not substantial evidence to support the Secretary’s finding that he could perform light work. First, he argues that the Secretary failed to give adequate consideration to his complaints of pain. Under the Social Security Act as recently amended by Congress,

[a]n individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability-

42 U.S.C. § 423(d)(5).

In Polaski v. Heckler, 751 F.2d 943, 950 (8th Cir.1984), we analyzed the legislative history of this statute and concluded that all pain cases in the Eighth Circuit are to be evaluated on the basis of the amended statute, the pain regulation in 20 C.F.R.

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Bluebook (online)
764 F.2d 507, 1985 U.S. App. LEXIS 19820, 10 Soc. Serv. Rev. 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/felix-jelinek-appellant-v-margaret-m-heckler-secretary-of-health-and-ca8-1985.