BRINKER v. WEINBERGER

STEPHENSON, Circuit Judge.

This action was instigated by Vernon Brinker pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), for judicial review of the Social Security Administration's decision disallowing his claim for a period of disability as defined by section 216(i), and for disability insurance benefits under section 223, 42 U.S.C. §§ 416(i) and 423. Following the claimant's exhaustion of his administrative remedies, including a hearing before an administrative law judge and an adverse decision from the Appeals Council, the decision by the Secretary of Health, Education and Welfare was reviewed by the district court,1 which granted the Secretary's motion for summary judgment. That court held that the findings of the Secretary were supported by substantial evidence in the record and conclusive. We reverse and remand to the district court with instructions to enter summary judgment in favor of Brinker.

Brinker claims that he suffers from back injuries incurred on May 22, 1969, and September 29, 1969, during this employment as a truck driver at Macalester College. These back injuries allegedly prevent him from engaging in gainful employment since exertion or movement increases the intensity of his back pains. The administrative law judge, whose findings were adopted by the Appeals Council, found that Brinker was not suffering from a disability as that word is defined in section 223 of the Social Security Act. Since Brinker challenges this finding, the central issue is whether or not he has a disability as statutorily defined.2

A threshold issue to be considered is whether the doctrine of res judicata bars consideration of Brinker's application for disability insurance benefits. Brinker filed an initial application for benefits on April 15, 1970, but the Director of the Bureau of Disability Insurance declared that Brinker was not entitled to benefits because he did not meet the statutory requirements. Although the letter also advised Brinker that he had six months to file a request for reconsideration, he failed to do so. Brinker did file, however, a second application for disability insurance benefits on April 16, 1971. At a hearing on this second application, the administrative law judge specifically found that the prior administrative determination on June 15, 1970, was res judicata.3

Brinker contends that the reopening regulation of the Social Security Act4 rather than res judicata is properly applicable to his second application for benefits. The Secretary, however, asserts that the administrative law judge acted within his discretion in giving the initial determination res judicata effect since Brinker failed to request reconsideration of that decision within the required six month period.5 Moreover, the Secretary advocates only a showing of "good cause" could justify invocation of the reopening regulation. In this regard, the administrative law judge found that "good cause" had not been established.

Although application of the doctrine of res judicata to administrative decisions serves a useful purpose in preventing relitigation, it is not applied with the same rigidity as its judicial counterpart. United States v. Smith, 482 F.2d 1120, 1123 (8th Cir. 1973). Moreover, Grose v. Cohen, 406 F.2d 823, 825 (4th Cir. 1969), recognized that "practical reasons may exist for refusing to apply it." The existence of the reopening regulation indicates that it is undesirable to attribute finality to every administrative decision. 20 C.F.R. § 404.957.

The Social Security Regulations clearly provide that an initial determination may be reopened within twelve months from the date of the notice of the initial decision. 20 C.F.R. § 404.-957(a). Since Brinker did file a second application within the necessary time period, his application for disability benefits was subject to being reopened. The doctrine of res judicata, therefore, is inapplicable to the instant case. See Leviner v. Richardson, 443 F.2d 1338, 1342 (4th Cir. 1971). Both the administrative law judge and the district court incorrectly required a showing of "good cause" since that showing is only necessary for a reopening after twelve months. See 20 C.F.R. § 404.957(b).

Furthermore, it is immaterial that Brinker's second application was framed as a new application rather than a petition to reopen. In Leviner v. Richardson, supra, 443 F.2d at 1342, the court emphasized that the reopening regulation

Id. The dictates of equity and fundamental fairness that allow a decision to be reopened preclude use of the same decision as a foundation for res judicata. See Grose v. Cohen, supra, 406 F.2d at 825.6

The fundamental issue to be considered in this case is whether there is substantial evidence in the record as a whole to support the administrative law judge's finding that Brinker was not suffering from a disability as that word is defined in section 223(d) of the Social Security Act. 42 U.S.C. § 423(d). Substantial evidence "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 from Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). In making this inquiry, we should neither consider a claim de novo nor abdicate our function to carefully analyze the entire record in conducting a review. Yawitz v. Weinberger, 498 F.2d 956, 957 (8th Cir. 1974).

Brinker was born in 1921. After completing the eighth grade, he worked as a farmer on his father's farm. From 1942 through 1946, he served in the air force as a gunner and afterwards worked as a crane operator. He also operated as a self-employed truck driver from 1955 through 1960 and finally went to work at Macalester College in 1960, where he was employed at the time of the accidents causing his injury. Following the accidents, Brinker attempted to continue working while undergoing medical treatment. He claims, however, that his back pain became so painful that he could no longer work after October 21, 1969.

In October 1969 he began receiving medical treatment from Dr. Ivan Schloff, an orthopedic surgeon. Dr. Schloff diagnosed Brinker's condition as a degenerative disc disease of the lumbar spine with exacerbation, and a plaster body cast was applied. The body cast seemed to reduce his pain, and the cast was later replaced by a back brace. On February 4, 1970, he returned to work at Macalester College at a job involving lighter work with specific limitations on bending and lifting. After resuming work, however, Brinker claims that he experienced increased pain.

Brinker was eventually hospitalized on February 25, 1970, for aggravation of his lumbo sacral strain. After his release from the hospital, he realized some temporary improvement, but was later readmitted for a discogram. The findings at this time showed both protruding discs and a degenerated disc. Consequently, he was readmitted to the hospital on June 16, 1970, and placed in a hip cast for two weeks. After the removal of the cast, Dr. Schloff expressed the opinion that Brinker could never return to his former job nor any other job requiring lifting and bending. Furthermore, Dr. Schloff estimated that Brinker had a 25% permanent partial disability of the spine as a result of the accidents.

During 1970 Brinker underwent psychological and vocational evaluation at the State of Minnesota Department of Education, Division of Vocational Rehabilitation (DVR). The generally unencouraging test results relating to retraining and placement, however, ultimately resulted in the issuance of a DVR report that Brinker was "unemployable" because he had to wear a back brace, his education was minimal, he lacked special skills, and was experienced only in common labor.7

Generally, a claimant for disability benefits must show a medically established impairment that prevents him from performing any substantial and gainful employment which exists in the national economy for which he is qualified by his age, education and work experience. 42 U.S.C. § 423(d). See Lund v. Weinberger, 520 F.2d 782 at 784 (8th Cir. 1975); Yawitz v. Weinberger, 498 F.2d 956, 959-60 (8th Cir. 1974). This court has repeatedly set out the relevant legal standards for receiving such benefits. See, e. g., Klug v. Weinberger, 514 F.2d 423 at 424 (8th Cir. 1975). As stated in Klug those standards are:

Id. See also Garrett v. Richardson, 471 F.2d 598 (8th Cir. 1972); Celebrezze v. Bolas, 316 F.2d 498 (8th Cir. 1963).

It is also well-established that once a claimant demonstrates that his impairment is so severe as to preclude him from performing his former work, the burden shifts to the Secretary to prove there is some other kind of substantial gainful employment that the claimant could perform. Lund v. Weinberger, supra, 520 F.2d at 785; Klug v. Weinberger, supra, 514 F.2d at 425. See also Timmerman v. Weinberger, 510 F.2d 439, 443 (8th Cir. 1975); Stark v. Weinberger, 497 F.2d 1092, 1097-98 (7th Cir. 1974). See generally Annot. 22 A.L.R.3d 440 (1968).

The record reveals no substantial evidence to support the conclusion that Brinker could perform at his former employment at Macalester College. Dr. Schloff concluded that Brinker could never return to his former work. Brinker's own attempt to do so and his concomitant failure provide corroboration. Further, the findings of the administrative law judge specifically state that Brinker is "`occupationally handicapped' from returning to any of his past jobs."

Since Brinker established that his impairment is sufficient to preclude him from performing at his former employment, the burden shifted to the Secretary to show other kinds of substantial gainful employment he could perform. To meet this burden, the administrative law judge relied solely upon the testimony of Mrs. Jane Moncharsh, a vocational expert. Notably, Mrs. Moncharsh testified only from the available administrative record of the case and admitted that she had no prior personal contact with Brinker. By using the Dictionary of Occupational Titles and taking into consideration Brinker's restrictions and residual skills, she believed the record demonstrated that Brinker could perform several kinds of bench jobs involving light, sedentary work. She also testified to the existence of such jobs in the Twin Cities metropolitan area.

It is clear that the Secretary need not find a specific employer or job for a claimant. Timmerman v. Weinberger, supra, 510 F.2d at 442; Garrett v. Richardson, supra, 471 F.2d at 600. To establish that a claimant for disability benefits has the ability to engage in any substantial gainful activity, however, it must be shown that the claimant can realistically perform in existing employment. See Nichols v. Gardner, 361 F.2d 963, 966 (8th Cir. 1966); Celebrezze v. Bolas, 316 F.2d 498, 501 (8th Cir. 1963). Cf. Timmerman v. Weinberger, supra. In Celebrezze, the court described substantial gainful activity as follows:

316 F.2d at 501, quoting from Ribicoff v. Hughes, 295 F.2d 833, 837 (8th Cir. 1961). The court further stated:

316 F.2d at 501, quoting from Kerner v. Flemming, 283 F.2d 916, 921 (2d Cir. 1960). Moreover, in determining whether a claimant can engage in any substantial gainful activity, the "word `any' must be read in the light of what is reasonably possible, not what is conceivable." Kohrs v. Flemming, 272 F.2d 731, 736 (8th Cir. 1959).

Significantly, Mrs. Moncharsh's testimony, that Brinker could engage in various jobs existing in the economy, was merely hypothetical since she had seen no information concerning Brinker's actual work performance after his last attempt at employment in 1970. For example, she answered the following specific questions as follows:

Furthermore, her opinion was rendered without the benefit of the evaluative report from the St. Paul Rehabilitation Center, where Brinker had been thoroughly tested for vocational aptitudes and skills.8 This report constituted the only evaluation of Brinker's actual work performance ability after his injury. The results of these tests indicated that while Brinker was found to possess some skills sufficient to perform entry-level work in the mechanical and assembly area, his finger dexterity was poor, his actual work tolerance was very low, and he was unable to engage in any type of work which required any degree of standing. Moreover, his low work tolerance was termed "unfortunate" in the report, because even stationary "sitting" jobs require one to stand occasionally. The report also indicated that no appropriate job was ever found for Brinker despite extensive vocational counselling and placement efforts.

The acceptability of Mrs. Moncharsh's testimony was further diminished by the contradictory testimony of other witnesses at the hearing. Mr. Arval Christiansen, a vocational placement expert, expressed the opinion that assembly work was impossible for Brinker because of his difficulties in lifting, bending, reaching and sitting. The testimony of Mr. Bernard Matschenbacher, the director of placement for Brinker's union, and of Brinker himself are also supportive of Brinker's actual unemployability.9

We conclude that the opinion testimony of Mrs. Moncharsh, that Brinker could engage in various jobs existing in the economy, indicates only what is conceivable and fails to adequately consider his actual performance ability to realistically engage in substantial gainful employment. Cf. Nichols v. Gardner, 361 F.2d 963 (8th Cir. 1966). Her testimony is insufficient to establish existing employment opportunities for Brinker when compared with the realistic certainty attendant the St. Paul Rehabilitation Center report and the testimony of the other witnesses.

Furthermore, we find that the administrative law judge incorrectly emphasized that Brinker had refused surgery. No evidence which would support that finding appears in the record. On the contrary, Dr. Schloff apparently counselled against surgery. Moreover, insufficient weight was given to Brinker's claims that he suffered from pain as a result of his back condition. Brinker's testimony is substantial in this regard, and there is no evidence in the record to the contrary. Finally, the administrative law judge unjustifiably concluded that Brinker lacks vocational motivation. This also seems inappropriate since Brinker attempted to return to work at Macalester College and continually sought vocational rehabilitation and placement for over three years.

We hold that Brinker met his burden of proof and established that he was disabled within the meaning of the Social Security Act. There is no substantial evidence in the record as a whole to support the denial of disability benefits. The administrative law judge considered Brinker's disability only in the abstract rather than evaluating the impact of the disability on Brinker and his actual performance ability.

We reverse the judgment of the district court and remand the case with directions to grant summary judgment for Brinker.