GARZA, Circuit Judge.
In October 1978, Jack Olson filed an application for disability insurance benefits with the Social Security Administration on the basis of a condition which he claimed had prevented him from working since August 30, 1975. The shoulder, hip, ankle, and neck problems of which the claimant complained, a condition known as osteoarthritis, prohibited him from engaging in any type of gainful employment. Medical reports also indicated claimant suffered from ulcers and gout. After this application was denied,
Plaintiff traces his physical problems back to injuries sustained in World War II. These injuries resulted in a condition which the Veterans Administration (VA) judged to warrant a 40% disability rating. Upon discharge in 1945, he was granted service-connected disability payments. He voluntarily renounced these payments in 1955, when he advised the Veterans Administration that he was financially able to care for himself. Plaintiff has engaged in a variety of occupations since that time but his primary expertise is in the fields of automobile and real estate sales. He was employed by a Ford dealership at the time his serious medical problems began. He worked sporadically from 1972 to 1975, but has been unable to work at all since that time.
The only question before this court is whether the findings of the Secretary, as to any facts, are supported by the substantial evidence. In a case such as this, where appeal is taken from a summary judgment determination in favor of the Secretary, the review function of the circuit court is akin to that of a district court. Review must be made independently and without the assumption that the district court acted correctly. McDaniel v. Harris, 639 F.2d 1386, 1388 (5th Cir. 1981). However, as to review of the decision of the ALJ, it is not the function of this court to try the case de novo or reweigh the evidence. Instead, we are limited to determining whether there is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Gaultney v. Weinberger, 505 F.2d 943, 945 (5th Cir. 1974), quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1970).
Much of the testimony which was given at the hearing on the most recent application by claimant was in fact information which had been considered when his previous two applications were processed. There is no reason, therefore, to delve into this information. However, there was also some new testimony given at the hearing before the ALJ and it is this information that must be the subject of our consideration.
One occurrence on which claimant places high importance is the revocation of his driver's license for medical reasons which occurred in 1978. This action came about after claimant went to a Department of Public Safety (DPS) station to change the address on his driver's license. He was spotted by a DPS officer who requested that he produce his driver's license. Subsequently, he received notification that his driver's license had been suspended and a temporary license issued. The Texas Department of Health then determined that claimant was physically unable to safely operate an automobile and Judge George A. Patzig revoked his license. The ALJ did consider the driver's license revocation in his decision, but did not consider it important because he found there were many jobs for which claimant was qualified which did not require him to drive an automobile. It is the view of this Court, however, that the claimant must have been suffering badly for the DPS officer to have noticed him initially. This fact is not mentioned by the ALJ.
It is settled law that pain itself may be enough to justify an award of disability benefits, whether or not the pain can be medically documented by symptoms. Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979). In holding that claimant is not disabled and has the residual capacity for sustained work activity, the ALJ stresses that one V.A. report which claimant submitted which indicated that he was not on narcotics "would contraindicate the existence of severe pain." However, this finding overlooks the medical report of Dr. Bragg dated February 22, 1979, which states, in relevant part, "The patient is sensitive to all medications except Tylenol. The patient is allergic to Morphine, Demerol, Codeine, and Penicillin." This court recently stated, in Scharlow v. Schweiker, 655 F.2d 645 (5th Cir. 1981), that failure of the ALJ to make credibility findings about claimant's allegations of pain required reversal and remand of the cause. It follows that a credibility choice based on misinterpretation of medical records mandates identical action.
Based on similarly shaky terrain is the ALJ's finding that there are many jobs for which claimant is still qualified. It is clear that an ALJ may take administrative notice that certain jobs of a sedentary nature exist in the national economy and that claimant must be given a chance to rebut the claim that he is qualified for employment. In this case, claimant presented his own personal testimony as well as that of family members and a neighbor in regard to the severity of his condition and his inability to work and perform a variety of tasks. Additionally, his osteoarthritic condition was verified by a number of doctors' reports. The ALJ even found in his opinion that the claimant was susceptible to periodic attacks of severe arthritis. A vocational
It is true that this is not the first time claimant has sought disability benefits. However, although he is legally bound by the results of the first two decisions for the time period involved, he should not be penalized in his present application for his past denials. After all, he was not represented by counsel in the first two instances and so possibly was unable to fully present his testimony and effectively undertake the appeal process.
Claimant suffers from a condition that is not constant. He testified that some days he will feel fairly well, while the next day he may be in severe pain. It appears from the opinion of the ALJ that the inconstant nature of the condition troubled him. Although the medical testimony presented clearly showed a case of osteoarthritis, claimant here is being penalized for the fact that he is not in severe pain every day. However, the regulations which govern the disbursement of disability benefits only require that plaintiff be disabled to the point of being unable to perform any gainful employment. As the vocational expert testified, an individual who is forced to miss many days from work will not qualify for any full-time job. We must recognize that the definition of a disability is not limited to cases where the sufferer is in intense pain every day. The nature of some disabilities dictates that there will be some good days but a very large number of excruciatingly bad days. Claimant in this case is allergic to narcotic medications and therefore these bad days are clearly very painful periods. The testimony of family, friend, and physician confirms the severe disability from which he suffers.
Claimant has also been penalized, it appears, for participating in his own hearing. The record indicates that claimant had taken Cortisone, to which he is allergic, for a period of time before the hearing just so he would be able to participate. After disobeying doctor's orders so that he could present his case, the ALJ found that a further sign of his lack of disability was the fact that he "did not exhibit any clinical signs of arthritis, and actively participated in the hearing, which lasted over two hours, without apparent difficulty."
REVERSED and REMANDED.
20 C.F.R. § 404.957.
Under the provisions of 20 C.F.R. §§ 404.988-989, a determination of the Secretary may be reopened within four years of the date of initial determination if new and material evidence is furnished.