Elton J. Breaux v. Robert H. Finch, Sec'y of Health, Educ. & Welfare, 421 F.2d 687 (5th Cir. 1970). · Go Syfert
Elton J. Breaux v. Robert H. Finch, Sec'y of Health, Educ. & Welfare, 421 F.2d 687 (5th Cir. 1970). Cases Citing This Book View Copy Cite
G Cite
68 citation events across 27 distinct courts.
Strongest positive: Samuel A. Ferguson v. Richard S. Schweiker, Secretary of Health and Human Services (ca5, 1981-03-30)
Treatment trajectory · 1969 → 2026 · click a year to view as-of
1969 1997 2026
Top citers, strongest first. 13 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Samuel A. Ferguson v. Richard S. Schweiker, Secretary of Health and Human Services
5th Cir. · 1981 · signal: cf. · quote attribution · 1 verbatim quote · confidence high
if the nature of breaux's disability limited the scope of light work which he could perform, his argument that vocational expert testimony was required would be much more persuasive.
discussed Cited as authority (rule) William P. Geoffroy v. Secretary of Health and Human Services
1st Cir. · 1981 · confidence medium
Compare McLamore v. Weinberger, 538 F.2d 572 , (4th Cir. 1976), (notice of existence of light and sedentary jobs properly taken); Taylor v. Weinberger, 512 F.2d 664, 668-69 (4th Cir. 1975) (although Secretary may administratively notice the existence of jobs, “facts pertaining to the capacity of a specific individual can be supplied only by particularized proof”); Chavies v. Finch, 443 F.2d 356, 357-58 (9th Cir. 1971) (use by vocational expert of “Dictionary of Occupational Titles” sufficient to establish existence of alternate employment); Breaux v. Finch, 421 F.2d 687, 689-90 (5th Ci…
cited Cited as authority (rule) Air America, Inc. v. Director, Office of Workers' Compensation Programs, United States Department of Labor, and Joseph F. Kerch
1st Cir. · 1979 · confidence medium
See Hernandez v. Weinberger, 493 F.2d at 1123 ; Breaux v. Finch, 421 F.2d 687, 689-90 (5th Cir. 1970).
discussed Cited as authority (rule) Phillips v. Department of Health, Education & Welfare
S.D.N.Y. · 1978 · confidence medium
Taylor v. Weinberger, 512 F.2d 664, 668 (4th Cir. 1975); Hernandez v. Weinberger, 493 F.2d 1120, 1123 (1st Cir. 1974); Chavies v. Finch, 443 F.2d 356, 358 (9th Cir. 1971); Floyd v. Finch, 441 F.2d 73, 76 (6th Cir. 1971); Breaux v. Finch, 421 F.2d 687, 689-90 (5th Cir. 1970). 18 .
cited Cited as authority (rule) Spaulding v. Califano
W.D. Mo. · 1977 · signal: cf. · confidence medium
See Meneses v. Secretary of Health, Education, and Welfare, 143 U.S.App.D.C. 81 , 442 F.2d 803, 807 (1971); cf. Breaux v. Finch, 421 F.2d 687, 689 (5th Cir. 1970).
discussed Cited as authority (rule) Richardson v. Perales (2×)
SCOTUS · 1971 · confidence medium
Munslow, Lampert, Langston, Bailey, and Mattson. [7] We are advised by the Government's brief, p. 18, nn. 7 and 8, that in fiscal 1968, 515,938 disability claims were processed; that, of these, 343,628 (66.601%) were allowed prior to the hearing stage; that approximately one-third of the claims that went to hearing were allowed; and that 320,164 consultant examinations were obtained. [8] Ratliff v. Celebrezze, 338 F. 2d 978, 982 (CA6 1964); but see Miracle v. Celebrezze, 351 F. 2d 361, 365, 382-383 (CA6 1965). [9] Ber v. Celebrezze, 332 F. 2d 293, 296-298 (CA2 1964); Stancavage v. Celebrezze, …
discussed Cited as authority (rule) Patrocinia Meneses v. Secretary of Health, Education and Welfare (2×)
D.C. Cir. · 1971 · signal: cf. · confidence medium
Cf. Breaux v. Finch, 421 F.2d 687, 689 (5th Cir. 1970), where claimant was only 20% disabled and “perfectly capable of engaging in an infinite variety of jobs which can be classified as light work.” In Gotshaw v. Ribicoff, 307 F.2d 840 (4th Cir. 1962), Mrs. Gotshaw could have continued doing the same work she had done for years if her employer had not installed a heavier spinning machine.
cited Cited as authority (rule) Zanoviak v. Finch
W.D. Pa. · 1970 · confidence medium
Breaux v. Finch, 421 F.2d 687, 689 (5th Cir.1970).
cited Cited "see" United States v. Jessie Oliver and Gregory Cooper
2d Cir. · 1980 · signal: see · confidence high
See Falu v. United States, 308 F.Supp. 1051, 1052 (S.D.N.Y.), affd., 421 F.2d 687 (2d Cir. 1969).
discussed Cited "see" Mack Hall, Sr. v. Secretary of Health, Education and Welfare (2×)
9th Cir. · 1979 · signal: see · confidence high
See Breaux v. Finch, 5 Cir., 1970, 421 F.2d 687 .
cited Cited "see" Chism v. Secretary of Health, Education & Welfare
C.D. Cal. · 1978 · signal: see · confidence high
See Breaux v. Finch, 5 Cir., 1970, 421 F.2d 687 .” ( 443 F.2d at p. 358 ) The above-quoted language in Chavies has been frequently relied upon by courts in this Circuit.
cited Cited "see" Brown v. Weinberger
N.D. Tex. · 1974 · signal: see · confidence high
See, Breaux v. Finch, 421 F.2d 687 (5th Cir. 1970) and Hemphill v. Weinberger, 483 F.2d 1137, 1139 (5th Cir. 1973).
cited Cited "see" Matthew Chavies v. Robert H. Finch, Secretary of Health, Education and Welfare
9th Cir. · 1971 · signal: see · confidence high
See Breaux v. Finch, 5 Cir., 1970, 421 F.2d 687 .
Retrieving the full opinion text from the archive…
Elton J. BREAUX, Plaintiff-Appellant,
v.
Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant-Appellee
27719_1.
Court of Appeals for the Fifth Circuit.
Jan 27, 1970.
421 F.2d 687
1970 U.S. App. LEXIS 11029
William N. Knight, Hershel Knight, Jennings, La., for plaintiff-appellant., Edward L. Shaheen, U. S. Atty., Leven H. Harris, Asst. U. S. Atty., Shreveport, La., for defendant-appellee.
Gewin, Thornberry, Ainsworth.
Cited by 45 opinions  |  Published
PER CURIAM:

Appellant, Elton J. Breaux commenced this action in the United States District Court for the Western District of Louisiana to obtain judicial review of a determination by the Secretary of H.E.W. that he is not entitled under the Social Security Act either to a period of disability or disability insurance benefits. The district court affirmed the Secretary’s decision and Breaux here contends that the court erred in finding that the Secretary’s determination was based on substantial evidence. We affirm.

Under § 205(g) of the Social Security Act, the Secretary’s finding of facts is conclusive if supported by “substantial evidence.” [1] This term is defined by the Supreme Court in NLRB v. Columbian Enameling and Stamping Company, as follows:

Substantial evidence is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. “It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” Consolidated Edison Co. v. National Labor Relations Board, supra [305 U.S. 197, 229], 59 S.Ct. [206] 217 [83 L.Ed. 126], and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be[*689] drawn from it is one of fact for the jury, [citations omitted] [2]

In the instant case, the evidence relating to Breaux’s physical condition consists of medical records and testimony by Dr. Norman P. Morin, an orthopedic surgeon. Breaux contends that the records are hearsay, that the doctor’s testimony is hearsay upon hearsay since he had not examined appellant, and that, according to the principle announced in Cohen v. Perales, [3] uncorroborated hearsay evidence can not be considered “substantial evidence.” While the original decision in Cohen may have provided some support, even though slight, for the principle relied on by appellant, this court’s opinion on petition for rehearing clearly undermines such an inference:

Our opinion holds, and we reaffirm, that mere uncorroborated hearsay evidence as to the physical condition of a claimant, standing alone and without more, in a social security disability case tried before a hearing examiner, as in our case, is not substantial evidence that will support a decision of the examiner adverse to the claimant, if the claimant objects to the hearsay evidence, and if the hearsay evidence is directly contradicted by the testimony of live medical witnesses and by the claimant who testifies in person before the examiner, as was done in the case at bar. This is especially true if the claimant requests that the absent medical witnesses of the HEW who authored the hearsay evidence, be subpoenaed to testify at the hearing and the examiner fails or refuses to summon them.

When these conditions are not present, there is nothing to prevent an examiner from basing his decision, which is adverse to the claimant, on hearsay medical evidence, if such evidence has sufficient probative force to support his decision. [4]

Moreover, Cohen is distinguishable from the case presently before us in that no physician testified in behalf of Breaux, and appellant did not request that absent medical witnesses be subpoenaed. Indeed, other than his own testimony, appellant must also rely upon hearsay evidence to prove his disability. In the circumstances, we are of the opinion that the Secretary’s conclusion was supported by substantial evidence.

Appellant also contends that the Secretary’s finding that he is able to engage in substantial gainful work is not supported by substantial evidence. There is clearly evidence that appellant has suffered only a 20% disability and is quite capable of engaging in light work such as janitor in a school or bank, watchman, or the delivery of light objects. Breaux insists that it was necessary for the Secretary to have a vocational expert testify that light work existed in the national economy. [5] We think it was quite proper for the Secretary to take administrative notice of this fact. [6] If the nature of Breaux’s disability limited the scope of light work which he could perform, his argument would be much more persuasive. However, he is perfectly capable of engaging in an infinite variety of jobs which can be classified as light work and it was not necessary for the Secretary to pro-[*690] duee evidence of the obvious fact that light work exists in the national economy. '

The decision of the district court is affirmed.

1

. 42 U.S.C.A. § 405(g) (1964).

2

. 306 U.S. 292, 299-300, 59 S.Ct. 501, 505, 83 L.Ed. 660 (1939). See also, Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-488, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

3

. 412 F.2d 44 (5th Cir. 1969).

4

. Cohen v. Perales, 416 F.2d 1250, 5th Cir. 1969 [October 10, 1969],

5

. It is important to note that Breaux’s claim was pending before the Secretary on January 2, 1968, and therefore, the amendments to sections 216 (i) and 223 of the Social Security Act are applicable to this claim. Pub.L.No. 90-248, Sec. 158(e), 81 Stat. 821. See, Martin v. Finch, 415 F.2d 793, 5th Cir. 1969 [Sept. 2, 1969].

6

. See, K. Davis, 2 Administrative Law Treatise, § 16.11 (1958).