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Berry v. Schweiker

decided: March 18, 1982.

ELMER G. BERRY, PLAINTIFF-APPELLANT,
v.
RICHARD SCHWEIKER, SECRETARY OF HEALTH AND HUMAN SERVICES. DEFENDANT-APPELLEE.



Appeal from a judgment of the United States District Court for the District of Vermont, James S. Holden, Chief Judge, upholding the denial by the Secretary of Health and Human Services of appellant's application for disability benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 401-31, 1381-85. Affirmed.

Before Meskill, Cardamone and Pierce, Circuit Judges.

Author: Per Curiam

Elmer G. Berry appeals from the judgment of the United States District Court for the District of Vermont, James S. Holden, Chief Judge, upholding the denial by the Secretary of Health and Human Services of Berry's application for disability benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 401-31, 1381-85. Although the reasoning of the Secretary with respect to one issue might have been more clearly articulated, we find that his decision was supported by substantial evidence and we accordingly affirm.

I.

Appellant Berry is a 36 year old male who attended public school in St. Johnsbury, Vermont, until the third grade and then lived at the Brandon (Vermont) Training School until he was nineteen years old. From 1965 to 1975, he held various manual jobs, including car washer, dishwasher, and ride operator and worker for a travelling carnival, from which he earned an average of $2800 per year. In 1975, apparently due to his father's illness, Berry returned to Vermont from Florida where he had been working as a carnival ride operator. In October 1975, he worked as a dishwasher in Rutland, Vermont, but was laid off after two weeks due to lack of work and his inability to keep up with his job. Berry has not been employed since that time.

In October 1977, Berry filed an application for disability insurance benefits pursuant to Title II of the Social Security Act (the "Act"), 42 U.S.C. §§ 401-31, and an application for Supplemental Security Income ("SSI") based on disability pursuant to Title XVI of the Act, 42 U.S.C. §§ 1381-85. Berry claimed total disability due to mental retardation. His applications were initially denied, his requests for rehearing were denied, and after a de novo hearing on September 14, 1978, an Administrative Law Judge ("ALJ") filed a detailed decision finding that Berry was not disabled within the meaning of the Act. Berry did not seek review of that decision.

On September 20, 1979, appellant filed another application for SSI and disability insurance benefits, alleging total disability due to "chest problems, trouble with left foot, constant headaches, (and) brain damage." The Secretary denied his application and his request for reconsideration. On July 15, 1980, the same ALJ who heard Berry's 1977 application conducted a de novo hearing at which Berry was represented by a paralegal from Vermont Legal Aid. Berry provided the sole oral testimony; the primary written evidence consisted of medical reports by an examining psychologist, an examining psychiatrist, and an examining orthopedist, and a note from appellant's treating physician. By decision dated August 24, 1980, the ALJ found that although Berry had impairments of inadequate personality and borderline intelligence, he had the residual functional capacity to perform work in non-stressful situations and, thus, was able to perform his past relevant work. Berry's request for review was denied by the Appeals Council of the Social Security Administration.

Thereafter, Berry filed in the federal district court for Vermont an application for review of the Secretary's decision pursuant to 42 U.S.C. § 405(g). By Memorandum of Decision dated August 6, 1981, Chief Judge Holden affirmed the Secretary's decision, and on the following day the judgment from which Berry appeals was entered.

II.

For purposes of both SSI and disability insurance eligibility, a person is disabled when he is unable "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), 1382c(a)(3)(A). An individual's physical or mental impairment is not disabling under the Act unless it is "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." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The claimant bears the initial burden of showing that his impairment prevents him from returning to his prior type of employment. Jock v. Harris, 651 F.2d 133, 135 (2nd Cir. 1981). If he meets that burden, the burden shifts to the Secretary to prove the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform, considering not only his physical and mental capabilities, but also his age, his education, and his experience and training. Campbell v. Secretary of the Department of Health and Human Services, 665 F.2d 48, 51 (2nd Cir. 1981); Dousewicz v. Harris, 646 F.2d 771, 772 (2nd Cir. 1981); Parker v. Harris, 626 F.2d 225, 231 (2nd Cir. 1980).

The applicable regulations promulgated by the Secretary set forth a straightforward five-step sequence to be utilized in evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920 (1981).*fn1 First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform. Under the cases previously discussed, the claimant bears the burden of proof as to the first four steps, while the Secretary must prove the final one.

On review, we may only set aside a determination which is based upon legal error or not supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c) (3); Aubeuf v. Schweiker, 649 F.2d 107, 112 (2nd Cir. 1981); Dousewicz, 646 F.2d at 773. Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 216, 83 L. Ed. 126 (1938).

III.

Our review of the Secretary's decision will follow the sequential approach prescribed by the Secretary's regulations and consistent with the Act. It is undisputed that Berry was not employed at the time of his application. As to the second inquiry, the ALJ expressly found that appellant ...


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