Samuel Trimiar v. Louis W. Sullivan, M.D., Secretary of Health and Human Services

966 F.2d 1326, 1992 U.S. App. LEXIS 8432, 1992 WL 96179
CourtCourt of Appeals for the Tenth Circuit
DecidedApril 23, 1992
Docket90-5249
StatusPublished
Cited by378 cases

This text of 966 F.2d 1326 (Samuel Trimiar v. Louis W. Sullivan, M.D., Secretary of Health and Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Samuel Trimiar v. Louis W. Sullivan, M.D., Secretary of Health and Human Services, 966 F.2d 1326, 1992 U.S. App. LEXIS 8432, 1992 WL 96179 (10th Cir. 1992).

Opinion

ALDON J. ANDERSON, Senior District Judge.

Appellant Samuel Trimiar, a fifty-three year old bus driver who claims to be permanently disabled as a result of injuries to his right arm, appeals a district court decision affirming the denial by the Secretary'of Health and Human Services (“Secretary”) of an open period of benefits under the Social Security Act. We affirm the district court’s decision, because it is supported by substantial evidence when the record is considered as a whole.

I. BACKGROUND

On July 20, 1982, Appellant sustained injuries to his right arm when he fell through a plate glass window. 1 At the time, Appellant was forty-three years old and was employed as a bus driver in Tulsa, Oklahoma. Over the ensuing three years, Appellant required surgery and physical therapy,, but nevertheless was left with permanent partial impairment of the right arm. On August 9, 1984, after initial denial by the Social Security Administration, Appellant was awarded retroactively a closed period of disability by a Health and Human Services Administrative Law Judge (“ALJ”).

On October 30, 1985, Appellant filed an application for permanent disability due to radial nerve palsy in' his right arm. His request was denied initially and upon reconsideration by the Social Security Administration. Appellant sought and was granted review by an ALJ who, on December 16, 1986, decided that Appellant was not disabled and was not therefore entitled to the *1328 benefits he claimed. The Appeals Council of the Department of Health and Human Resources vacated this decision and ordered further proceedings, including testimony from a vocational expert. After a hearing on November 25, 1987, an AU found that Appellant could perform light work 2 without the use of his right arm and that he did not have nonexertional limitations. 3 The AU concluded that Appellant was not disabled. Decision of the Adminis: trative Law Judge Bruce L. Evans, App. to Appellant’s Br., Vol II, at 30. The Appeals Council remanded for further testimony from a vocational expert to determine whether “a significant number of unskilled jobs [are] available to the claimant, given his exertional and n on-exertional limitations.” Order of Appeals Council, id. at 20. On October 30, 1988, after further testimony, an AU concluded that Appellant was not disabled because a significant number of jobs existed in the local or national economy which Appellant could have performed. Decision of the AU, id. at 11-14. On June 7, 1989, the Appeals Council denied Appellant’s claim for further review and let the decision stand as a final decision of the Secretary. Action of Appeals Council on Request for Review, id. at 7-8.

Appellant filed a complaint in the United States District Court for the Northern District of Oklahoma, seeking review of the Secretary’s final decision pursuant to 42 U.S.C. § 405(g). Compl., App. to Appellant’s Br., Vol. I, at 1-3. After oral argument, a United States Magistrate submitted findings and recommended that the AU’s decision be affirmed. Findings and Recommendations of U.S.Magis., id. at 7-12. By order of September 25, 1990, the District Court adopted the findings and recommendation of the Magistrate and affirmed the Secretary’s decision. Order of Dist.Ct., id. at 13. Appellant appealed to this Court. Notice of Appeal, id. at 14. We have jurisdiction to review the final decision of the United States District Court pursuant to 28 U.S.C. § 1291. 4

II. DISCUSSION

On appeal, Appellant’s principal contention is that the findings of the AU, the Appeals Council, and the District Court were not based on substantial evidence and should be reversed. Appellant’s Br. at 6-11. In making this argument, Appellant raises two grounds of error: (1) that the testimony of the vocational expert was favorable to the Appellant and required a different conclusion; and (2) that the Appellant should have been found disabled pursuant to the medical-vocational guidelines (the “grids”). 5 Id. at 11-16. Our review of the record convinces us that there is substantial evidence to support the AU’s conclusion. Accordingly, we must reject the grounds of error set forth by the Appellant and affirm the District Court.

A.

At the outset, the Court notes its function in this matter. Judicial review of the Secretary’s final decision is limited in scope *1329 by 42 U.S.C. § 405(g). 6 Our role “on review is to determine whether the Secretary’s decision is supported by substantial evidence.” Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir.1987) (citation omitted). “The court may not reweigh the evidence or try the issues de novo or substitute its judgment for that of the Secretary.” Pierre v. Sullivan, 884 F.2d 799, 802 (5th Cir.1989) (citation omitted). For our purpose, “[substantial evidence is more than a scintilla; it is such relevant evidence as a reasonable mind might deem adequate to support a conclusion.” Jordan v. Heckler, 835 F.2d 1314, 1316 (10th Cir.1987) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). A finding of “ ‘no substantial evidence’ will be found only where there is a ‘conspicuous absence of credible choices’ or ‘no contrary medical evidence.’ ” Hames v. Heckler, 707 F.2d 162, 164 (5th Cir.1983) (quoting Hemphill v. Weinberger, 483 F.2d 1137 (5th Cir.1973)).

The Appellant bears the burden of proving disability within the meaning of the Social Security Act. Channel v. Heckler, 747 F.2d 577, 579 (10th Cir.1984). Having shown that his disability precludes return to his prior employment, the “burden of going forward shifts to the Secretary, who must show that the claimant retains the capacity to perform an alternative work activity and that this specific type of job exists in the national economy.” Id.

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Bluebook (online)
966 F.2d 1326, 1992 U.S. App. LEXIS 8432, 1992 WL 96179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/samuel-trimiar-v-louis-w-sullivan-md-secretary-of-health-and-human-ca10-1992.