Hermione King v. John W. Gardner, Secretary of Health, Education and Welfare

WISDOM, Circuit Judge

(dissenting):

I respectfully dissent.

This case is one of a lengthening line of cases which, to my mind, frustrates the will of Congress by converting the disability insurance provisions of the Social Security Act into an unemployment compensation law.1

With deference to my brothers in this case and in the cases relied on by the majority, I feel compelled to dissent from what I regard as a judicial intrusion on the administrative process and the Congressional scheme of insurance disability benefits. This intrusion imposes on the Secretary the affirmative duty of determining employability as well as disability, i. e. of finding (naming) particular jobs available in the claimant’s community or geographic working area to persons having the claimant’s special skills and particular impairment. The effect is to define disability in the very terms Congress carefully avoided. It turns the statutory burden of proof topsy-turvy. It ignores the Secretary’s broad power and expertise in determining evidentiary standards. The Court’s approach violates the words and the spirit of the Act.

T

When this case was before the district court and when it was briefed and argued before this Court, the parties agreed that the only question at issue was whether substantial evidence supported the administrative findings. The Court has sent that issue into orbit. Now, without the Secretary’s having an opportunity to address himself to the point, the Court considers that the sole issue is whether the Secretary applied the proper standard in denying disability. This standard is not a statutory standard but is a judge-made rule that the Secretary cannot deny disability benefits without first making a “determination of whether the claimant has ‘a reasonable opportunity to be hired if [jobs] were open and applications for employment were being taken’.” Gardner v. Smith, 5 Cir. 1966, 368 F.2d 77.

Taking the test at its face value, I do not understand why the findings fail to meet the Court’s requirement. The Ap*406peals Council adopted the examiner’s finding:

“Claimant’s present activities indicate strongly that with the acquisition of some stamina she could perform almost any task which would not require arduous or sustained, vigorous physical activity. Claimant is an educated, intelligent lady. She has an interest and knowledge of medical problems far beyond the average high school graduate. With proper health care, the claimant would be in physical condition to undertake training as a student nurse, training for practical nursing, x-ray, physical therapy, and many other similar fields which are suitable for a lady of her age and her educational background. In our economy at this time, there is a serious shortage of ladies who possess such training. * * * Inasmuch as the Examiner has concluded the claimant has not suffered any significant impairment that is not readily remediable, there is no need to further burden this decision with a lengthy recital of the jobs and opportunities the claimant can do within her many residual capabilities.”

The Examiner could just as easily have translated his reference to the specific jobs which the claimant was capable of filling into the loose generalization on which the Court relies. I would hold that substantial non-medical as well as medical evidence supports the finding. However, in this area of administrative law, in striking contrast with all other areas, the “substantial evidence” standard is a test to be seen but not heard.2

II.

The Court rests its holding on tests laid down in Gardner v. Smith, 5 Cir. 1966, 368 F.2d 77, and Bridges v. Gardner, 5 Cir. 1966, 368 F.2d 86.3 These decisions distinguish away or overrule, sub silentio, the following recent Fifth Circuit decisions: Hicks v. Flemming, 302 F.2d 470; Celebrezze v. O’Brient, 323 F.2d 989;4 Aldridge v. Celebrezze, 339 F.2d 190; Celebrezze v. Raley, 330 F.2d *407755; Witherspoon v. Celebrezze, 328 F.2d 311; Frith v. Celebrezze, 333 F.2d 557; Robinson v. Celebrezze, 326 F.2d 840; Celebrezze v. Sutton, 8 Cir., 338 F.2d 417; and Clinch v. Celebrezze, 328 F.2d 778.

In discussing this group of cases, a commentator has noted that:

“The minority view, which is most consistent with both the statutory language and the legislative history of the program, follows the position maintained by the Court of Appeals for the Fifth Circuit. This approach places upon the claimant the burden of proving not only that he is disabled from performing his usual occupation, but also that his impairments are so severe that they prevent him from engaging in any form of substantial gainful employment, including work of a physically or mentally lighter type. Thus, unless the claimant adduces unequivocal evidence of a medically-determined total and permanent disability, he must prove a broad negative- — his inability to do any substantial gainful work — in order to receive benefits. In denying benefits, the Secretary may find it necessary to rebut the claimant’s contention that his failure to obtain employment has resulted from his physical condition; however, under the Fifth Circuit approach, the Secretary need not prove the availability of specific employment conditions which the claimant can obtain and adequately perform. Consequently, courts adopting this view generally confine the Secretary’s burden on an appeal to the production of credible evidence of the claimant’s ability to do any kind of work, and are correspondingly hesitant to overrule the Secretary’s finding.” Note, Social Security Disability Determinations: The Burden of Proof on

Appeal, 63 Mich.L.Rev. 1465, 1466-67 (1965)..

The effect of the instant case, Gardner v. Smith and, to a lesser extent, Bridges v. Gardner is to engraft upon the law the very thing Congress deliberately tried to avoid — definition of disability in occupational terms. These cases reject as “unrealistic” or merely “theoretical” the test: “ability of the claimant * * * to perform the work were he able to obtain the employment”. Instead, the test is the claimant’s “actual” employability. The Court does not go quite so far as to say that the Secretary must find vacancies available to a claimant, but the Secretary must prove, as an additional substantive element to negative disability, availability of actual employment to the claimant, in light of his skills and particular impairment. The effect is to shift to the Secretary part of the claimant’s statutory burden of proving inability to engage in any substantial gainful activity and, ultimately, to shift to the Secretary the burden of persuasion. A further consequence of this Circuit’s “realistic” test of disability is to require, “even though there is no present vacancy”, a “reasonable expectation that the claimant may be expected to compete for such a job in the future”. Thus the question is not whether available jobs “exist within the national economy”; the question is whether there is a “reasonable availability of jobs within the geographical areas within which the claimant would normally be expected to consider if regularly in the labor market”. Gardner v. Smith, 368 F.2d at 83, citing Celebrezze v. Kelly, 5 Cir., 331 F.2d 981.5

*408In the instant ease the Court seems to think that the appropriate labor market is Mt. Vernon, Texas (1960 population: 1338). See footnote 7 to the Court’s opinion.

The Court’s willingness to consider job availability only in a limited — in this case, a very limited — geographic area clearly ties occupational terms into the definition of disability. I say again: “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.” Celebrezze v. O’Brient, 5 Cir. 1963, 323 F.2d 989, 992.

III.

The commentators are in agreement with the Secretary in his reading of the legislative history of the disability program. “As the Secretary has pointed out [U.S. Code Cong. & Admin. News, 83 Cong.2d Sess. 1954, p. 3730], the legislative history of the disability program strongly suggests that the occupational test was not intended by Congress”, Longshore, The Social Security Disability Insurance Program — An Example of the Necessity for Judicial Review of Administrative Decisions, 25 Ala.Law. 282, 293 (1964). “It is to be noted that the statute did not contemplate an occupational disability. * * * [Interpretations that the plaintiff has carried his burden if he has shown] occupational disability and inability to perform work available in his vicinity * * * plainly thwart congressional intent and fly in the face of statutory language”. Rowland, Judicial Review of Disability Determinations, 52 Geo.L.J. 42, 53, 79 (1963). “However, requiring the introduction of evidence of actual employment opportunities as an additional element necessary to support the Secretary’s disallowance of a claim seems untenable. The legislative history and language of the Social Security Act clearly prohibit consideration of this factor in determining disability. Moreover, taking account of specific job opportunities in the immediate geographical area brings the program very close to granting compensation for mere unemployment rather than for physical or mental disability. If the availability of employment opportunities is to be recognized to some degree as a substantive element in determining disability (as certainly it is under current judicial practice) the Secretary’s superior access to employment and vocational information and the policy considerations discussed above perhaps justify allocating to him the burden of proving the availability of particular jobs in the national labor market.” Note, Social Security Disability Determinations: The Burden of Proof on-Appeal, 63 Mich.L.Rev. 1464, 1472 (1965).

The legislative history of the law is replete with statements that the definition of disability is “strict” or “conservative”.6 Congress devised the disability insurance system to meet the problems of the permanently disabled,7 carefully *409worded the statutory requirement that the claimant be “unable to engage in any substantial gainful activity,” and put the burden of proof on the claimant.8 Congress was afraid that a loose application of the law would endanger the Old Age Survivors Insurance trust fund.9

Since it first appeared in the 1952 amendments to the Social Security Act (66 Stat. 771) the definition of “disability” has been virtually the same. The definition has always required an ability to engage in any substantial gainful activity by reason of a physical or mental impairment. From the very first Congress equated “disability” with “total disability”. House Rep. No. 1944, 82nd Cong., 2d Sess., p. 2; Conf. Rep., House Rep. No. 2491, 82nd Cong., 2d Sess., U.S. Code Cong. & Admin.News 1952, p. 2363; House Rep. No. 1698, 83rd Cong., 2d Sess., pp. 22-24; Senate Rep. No. 1987, 83rd Cong., 2d Sess., pp. 20-22, U.S. Code Cong. & Admin.News 1954, p. 3710. Moreover, Congress contemplated that a person would have to be precluded from any work before he would be considered disabled. House Rep. No. 1698, 83rd Cong., 2d Sess., at p. 23; Senate Rep. No. 1987, 83rd Cong., 2d Sess., at p. 21:

The physical or mental impairment must be of a nature and degree of severity sufficient to justify its consideration as the cause of failure to obtain any substantially gainful work. Standards for evaluating the severity of disabling conditions will be worked out in consultation with the state agencies. They will reflect the requirement that the individual be disabled not for his usual work but also for any type of substantially gainful activity. U.S.Code Cong. & Admin.News 1954, p. 3730.

There was no change in 1956 when the disability insurance benefits provisions were enacted. House Rep. No. 1189, 84th Cong., 1st Sess., pp. 2, 5, 28; Conference Rep., House Rep. No. 2936, 84th Cong., 2d Sess., p. 26, U.S.Code Cong. & Admin.News 1956, p. 3877. In its report, the House Committee on Ways and Means said (House Rep. No. 1189, 84th Cong., 1st Sess., p. 5):

Thus, an individual who is able to engage in any substantial gainful activity will not be entitled to disability insurance benefits even though he is in fact severely disabled. (Emphasis added.)

Uniform application of the disability provisions of the Social Security Act would be precluded, as a matter of definition, if the test of disability should turn on the availability of jobs a claimant could perform in his home community. The legislative history of the Social Security Act, however, explicitly requires uniform application of the disability provisions. The House Committee on Ways and Means, reporting on H.R. 9366 (containing the provisions for a disability wage freeze), commented that state agencies were to apply the standards developed for evaluating the severity of impairments:

This will promote equal treatment of all disabled individuals under the old-age and survivors’ insurance system in *410all states. (Emphasis added.) (House Rep. No. 1698, 83rd Cong., 2d Sess., p. 24)

See also Senate Rep. No. 1987, 83rd Cong., 2d Sess., pp. 20-22, U.S.Code Cong. & Admin.News 1954, p. 3730. Similarly, the Conference Report on the H.R. 7225, 84th Cong., 1st Sess. stating that the purpose of having the Secretary of Health, Education and Welfare review the disability determinations of state agencies was (House Rep. No. 2936, 84th Cong., 2d Sess., p. 26):

To assure uniform administration of the disability benefits and to protect the Federal Disability Insurance Trust Fund from unwarranted costs.

Finally, a report of the House Committee on Ways and Means, H. Rep. No. 213, 89th Cong., 1st Sess., pp. 87, 88, U.S. Code Cong. & Admin.News 1965, p. 1943, in regard to the 1965 amendments to the Social Security Act, notes that in providing disability benefits “Congress designed a conservative program”. The report states:

In line with the original views expressed by our committee and since reaffirmed, to be eligible an individual must demonstrate that he is not only unable, by reason of a physical or mental impairment, to perform the type of work he previously did, but that he is also unable, taking into account his age, education, and experience, to perform any other type of substantial gainful work, regardless of whether or not such work is available to him in the locality in which he lives. . (Emphasis added.)
******

I am as ready as the next judge to fill interstices in federal statutes. To the best of my ability, I guard zealously the judicial function. Moreover, I recognize the hiatus between disability and unemployability in our social security legislation. But Congress deliberately created this hiatus. It is for Congress to fill.

. Professor Jaffe writes: “Fascinating and significant is the continuing tug-of-war between the federal courts and the Social Security Agency on the administration of the federal disability payments and the related ‘disability freeze.’ ‘Total disability’ is the key condition of entitlement. The applicant has the burden of proof and the agency findings are final if supported by the substantial evidence. A continuing stream of cases comes to the federal district and circuit courts attacking refusal of relief; and in reading them one is struck by their disposition to reject both the agency’s interpretations of ‘total disability’ and its findings of fact.” Jaffe, Judicial Control of Administrative Action 608 (1965).

. “The disability benefit amendments to the Social Security Act have provided the federal courts with a severe test of their ability to deal effectively with an administrative process. In the nine years since Congress passed the first part of the disability program, agency determinations have fared poorly in the reviewing courts, to the extent that 35.3 per cent of the decisions rendered by the district courts have been reversals. While this percentage of reversals is unusual in itself, what is more significant is the fact that the percentage reflects a trend toward increasing judicial review of disability determinations. Furthermore, it is noteworthy that there has also appeared a trend toward use of the remand as a more subtle means of interfering with agency action.” Rowland, Judicial Review of Disability Determinations, 52 Georgetown L.J. 42 (1963). “During the calendar year 1964 the district courts affirmed the Secretary’s decision in 415 cases, reversed 239 cases, and remanded 277 cases for further consideration by the Department. Of the 277 remands, 137 were at the request of the Department, 31 were at the request of the plaintiff, and 109 on the Court’s own motion. Letter from Arthur E. Hess, Director, Division of Disability Operations, Department of Health, Education, and Welfare, to the Michigan Law Review, Feb. 25, 1965.” Note, Social Security Disability Determinations: The Burden of Proof on Appeal, 63 Mich.L.Rev. 1465, 1466, n. 8 (1965).

. I was a member of the panel in Bridges v. Gardner, but wrote no separate opinion. I agree with the result reached: remand of the case to the Secretary “for further proceedings generally” and also for “further proceedings in the light of the amendments to the Social Security Act.” The Secretary requested the remand. He stated, among other reasons, that he intended to obtain “collateral medical and vocational development including consultative examinations” before finding that the claimant should undergo two surgical operations. The claimant had previously undergone five operations.

. “This Court in O’Brient did not address itself to the issue whether the existing jobs for which a claimant is capable of performing must be found in the claimant’s locale or in the national economy.” Gardner v. Smith, 368 F.2d at 83.

Gardner v. Smith is perhaps the most carefully reasoned and documented opinion on the subject in this Circuit. See *407also, however, Harrison v. Gardner, 5 Cir. 1966, 369 F.2d 172; Tigner v. Gardner, 5 Cir. 1966, 356 F.2d 647; Alsobrooks v. Gardner, 5 Cir. 1966, 357 F.2d 110; and Moncrief v. Gardner, 5 Cir. 1966, 357 F.2d 651.

. One court has said: “As a fact of life, employment is a matter of fortune. Surplus labor areas and types of available employment differ in most sections of the country. In this progressive and scientific age, government agencies alone or in combination may have the knowhow to survey such situations with reasonable certainty of prediction. But to particularize that a certain human being with individualistic impairment and limitation may or may not have employment opportunity in a certain area, in my inexperi*408enced judgment, may require an elite group of soothsayers superbly trained to probe the many intangibles.” Stoliaroff v. Ribicoff, N.D.N.Y.1961, 198 F.Supp. 587, 591.

. See H.R.Rep.No. 1189, 84th Cong., 1st Sess. 5 (1956); S.Rep.No. 1987, 83d Cong., 2d Sess. 21 (1954), U.S.Code Cong. & Admin.News, 1954, p. 3710.

. “The term disability means 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 to he of long-continued and indefinite duration.” § 216(i), 42 U.S.C. § 416(i) (1) (A); § 223, 42 U.S.C. § 423(c) 2). See H.R. 6000, 81st Cong., 1st Sess. (1949). See Advisory Council on Social Security, Reports to the Senate Comm. on Finance, S.Doc.No.162, 80th Cong., 2d Sess. 4 (1948). “The legislative history of the program indicates Congress thought a rational determination [of disability] was possible without such evidence [of employment opportunities]. Consistent with its habit of providing social legislation on a piecemeal basis for *409speeially defined groups of beneficiaries, Congress attempted to protect those persons whose disability reflected physical or mental impairment rather than an employer’s imprecise reaction to their condition or the existence of a market for their services. ‘Inability to engage in any substantial gainful activity’ was the qualification. That phrase was left to the Secretary for administrative development, but it seemed clear the claimant would not qualify if a man of his education, experience and capacity could perform any work, however inaccessible or ideal.” Rowland, Judicial Review of Disability Determinations, 52 Georgetown L.J. 42, 83 (1963).

. “An individual shall not be considered to be under a disability unless lie furnishes such proof of the existence thereof as may be required.” 42 U.S.C. § 416 (i) (1).

. 101 Cong.Rec. 10772, 10776, 10779, 10782-83 (1955); S.Rep. No. 2133, 84th Cong., 2d Sess. 2 (1956); 101 Cong.Rec. 10778 (1955). See also 1956 Amendments § 103(e), 70 Stat. 819, 42 U.S.C. § 401(b) (1958).