UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Wright, Tamm and Leventhal, Circuit Judges. Tamm, Circuit Judge (dissenting).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEVENTHAL
This case involves an action brought under § 205(g) of the Social Security Act, as amended, *fn1 to reverse the decision of the Secretary of H.E.W. that Perfecto Meneses, hereafter plaintiff, *fn2 was not subject to a "disability" on the critical date and hence was not entitled to disability insurance benefits. On crossmotions for summary judgment, the District Court entered judgment for the Secretary. We reverse. I. The Facts
Plaintiff was born in the Philippines on September 22, 1910. Prior to finishing high school, he served with the United States Army as a Philippine Scout from 1938 to 1947, the source of his employment coverage for Social Security purposes. *fn3 On May 20, 1947, he suffered a heart attack. His condition was diagnosed as myocardial infarction due to coronary occlusion. He was hospitalized until October 22, 1947, when he was honorably discharged as unfit for military service because of a finding by a Board of Medical Officers that he was "incapacitated for further duty because of possibility of subsequent cardiac damage on strenuous activity." He never fully recovered from his weakened heart condition; in fact, his death in 1968 was caused by a heart attack. However, the relevant period of disablement under the insured status requirements of the Social Security Act, 42 U.S.C. § 423(c) (1) is the period before either June 30 or September 30, 1950, the last date of plaintiff's insured status. *fn4 He was examined by the Veterans' Administration in October, 1948, and September, 1951, for rating purposes. The electrocardiographic report at the latter examination noted that his clinical record was "definitely . . . abnormal." The VA rating board rated his disability "100% from 10-23-47 to 4-22-48" and "60% from 4-23-48 to 2-3-52." The record also indicates a subsequent rating of 30% until 8-14-55, when it was increased to 60%; it went to 100% in 1958. *fn5
After his military discharge, plaintiff took a radio technician course for ten months in 1951-52, and he worked as a strawberry picker and assistant bartender briefly in 1955. He had to quit both jobs because of his heart weakness. II. Governing Principles
The Social Security Act, as amended, provides that "Every individual who . . . is insured for disability insurance benefits . . . and . . . is under a disability . . . shall be entitled to a disability insurance benefit." *fn6 "Disability" is defined as "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 which has lasted or can be expected to last for a continuous period of not less than 12 months." In addition,
an individual . . . shall be determined to be under a disability only if his physical or mental impairment or impairments are 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country. *fn7
We reverse because the claimant showed inability to resume his former work and the Secretary failed to meet the burden, which then devolved on him, of introducing evidence of "substantial gainful work that exists in the national economy" for a person of appellant's "age, education, and work experience" and suffering from his sort of physical impairments.
The Government claims that the Secretary has no burden whatever of offering evidence of job availability for disability claimants. We think such a burden of coming forward does shift to the Government when the claimant has made a showing of inability to return to his former work, and the record does not otherwise contain any evidence of claimant's ability to engage in substantial gainful work. If the Government meets its burden of coming forward, then the claimant has the overall burden of showing that his disability precludes substantial gainful work.
The Government bases its argument on the effect on prior law of § 158(b) of the Social Security Amendments of 1967. *fn8 It is clear, of course, that the 1967 amendments were designed to tighten the definition of disability in light of court decisions interpreting the prior statutory language which had "put the burden of proof on the Government to identify jobs for which the individual might have a reasonable opportunity to be hired, rather than ascertaining whether jobs exist in the national economy which he can do." Congress amended the disability section so that "Whether he would or would not actually be hired . . . may not be used as a basis for finding an individual to be disabled under this definition." *fn9 Such a showing may no longer be required. Gentile v. Finch, 423 F.2d 244, 246 (3d Cir. 1970).
Nevertheless, the 1967 Amendments have not jettisoned the rule that once the claimant shows evidence of his physical impairment disabling him from his former employment, the Secretary has the burden of going forward with evidence of other available employment. The only change wrought by the 1967 Amendments relates to the kind of evidence that must now be adduced. The Secretary need not show that the claimant would actually be hired. But he must show that there are jobs in the national economy that the claimant can do. In cases arising both before and after the 1967 Amendments it has been clearly stated that claimant's evidence of physical impairment undercutting ability to engage in former employment puts a burden on the Secretary to come forward with evidence of capacity to perform jobs, in accordance with the statutory criterion. The burden of coming forward that is shifted to the Government has most recently been restated in Gray v. Finch, 427 F.2d 336 (6th Cir. 1970), where the claimant, a former foundry worker, presented evidence of lung disease that rendered him unfit to return to foundry work. The court said:
. . . The burden was on appellant to convince the Secretary that he was disabled from engaging in his former employment. He satisfied this requirement, thus shifting to the Secretary the burden of going forward with evidence to demonstrate the existence of available employment compatible with appellant's disability. (427 F.2d at 338) *fn10
The precedents relied on by the Government with regard to the 1967 Amendments are not to the contrary. they either hold that (1) the Secretary does not have to show that the claimant would actually be hired, Gentile v. Finch, 423 F.2d 244 (3d Cir. 1970), Wright v. Gardner, 403 F.2d 646 (7th Cir. 1968); or that (2) when the claimant fails to show that he cannot return to his usual job the burden does not shift to the Secretary, Martin v. Finch, 415 F.2d 793 (5th Cir. 1969). In the other cases cited by the Government there was simply no evidence adduced by claimant of any inability to engage in employment. In Labee v. Cohen, 408 F.2d 998, 1000 (5th Cir. 1969), the evidence showed that "it is the appellant's attitude and not his aptitude which prevents him from engaging in gainful employment." See also Ryan v. Secretary of H.E.W., 393 F.2d 340 (9th Cir. 1968). Celebrezze v. O'Brient, 323 F.2d 989 (5th Cir. 1963), is not relevant here, because the hearing examiner had the benefit of vocational reports in his finding ...