445 F2d 656 Grant v. L Richardson

445 F.2d 656

Joseph C. GRANT, Plaintiff-Appellee,
Elliot L. RICHARDSON, Secretary of Health, education and
Welfare, Defendant-Appellant.
No. 28902 Summary Calendar.*
*(1) Rule 18, 5th Cir.; See Isbell Enterprises, Inc.
Citizens Casualty Co. of New York, et al., 5 Cir., 1970, 431
F.2d 409, Part I.

United States Court of Appeals, Fifth Circuit.

June 29, 1971.

Seagal V. Wheatley, U.S. Atty., San Antonio, Tex., Kathryn H. Baldwin, Leonard Schaitman, Attys., U.S. Dept. of Justice, William D. Ruckelshaus, Asst. Atty. Gen., Washington, D.C., for defendant-appellant.

Fritz K. Knust, San Antonio, Tex., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and MORGAN and INGRAHAM, Circuit judges.


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Under the recent opinion of the Supreme Court of the United States in the case of Richardson, Secretary of Health, Education, and Welfare v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842, decided May 3, 1971, the conclusion of the District Court that the testimony of Dr. C. W. Williams, the orthopedic surgeon, and Dr. R. C. Hardy, the neurosurgeon, did not constitute substantial evidence was error. Therefore, the Secretary's determination, being supported by substantial evidence, must be affirmed, even if there was also substantial evidence which may have supported a finding in favor of the claimant Grant. Moreover, the resolution of any conflict in the evidence, including conflicting medical opinions, as in the case at hand, and the determination of questions of credibility of the witnesses are not for the court; such functions are solely within the province of the Secretary. Martin v. Finch, 5 Cir., 1969, 415 F.2d 793; Stillwell v. Cohen, 5 Cir., 1969,411 F.2d 574, 575-576.


The motion of the defendant, Secretary of Health, Education and Welfare, should be granted; and the motion of the plaintiff (claimant) for summary judgment should be denied.


Reversed with directions.