Colwell v. Gardner

Citation386 F.2d 56
Decision Date17 November 1967
Docket NumberNo. 17133.,17133.
PartiesLawrence COLWELL, Plaintiff-Appellant, v. John W. GARDNER, Secretary of Health, Education, and Welfare, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

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Garland Wells, Hazard, Ky. (Wells & Wells, Hazard, Ky., on the brief), for appellant.

Moss Noble, Lexington, Ky. (George I. Cline, U. S. Atty., Moss Noble, Asst. U. S. Atty., Lexington, Ky., on the brief), for appellee.

Before EDWARDS, Circuit Judge, KENT,* District Judge, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

This is an appeal from an order of the District Court in a disability benefits case under the Social Security Act, affirming the decision of the Hearing Examiner and of the Appeals Council. The only question involved is whether there was substantial evidence to support the decision of the Hearing Examiner that appellant was not unable to engage in substantial gainful activity by reason of a physical or mental impairment, which could be expected to result in death or be of the duration of twelve months.1

Appellant is now fifty-three years old. At the time he filed his application for disability benefits, he was forty-eight years old. He attended school for six years. His work up to the time he filed his disability claim was heavy manual labor, consisting of work as a hand-loader, and shooter in the coal mines. Apparently, it was after this work experience that he went to war where, in France, he became disabled as hereafter appears.

On May 27, 1963, appellant filed his claim for disability benefits under the Social Security Act. Nine years before he filed his disability claim, he went to a Vocational School, which was probably under the direction of the Veterans Administration. Afterward, he worked for seven years as an automobile mechanic on large trucks with the Davidson Motor Company. He left this job because of what he termed "arthritis" which, he said, completely disabled him.

In the hearing of the case before the Hearing Examiner, all of the expert medical evidence that appellant was totally disabled was undisputed by any of the physicians or orthopedic surgeons who were witnesses, either for the appellant or for the Secretary.

The Hearing Examiner found, however, that appellant had failed to establish that he was disabled from engaging in substantial gainful employment.

As to the history of this case, appellant first noticed this "arthritic" condition when he was serving in the infantry in the American Army in France during World War II. He described the background of his disability as follows: The infantry in which he served was attacking the Germans in a stretch of woods, and a shell came over a tank in front of him, and exploded near him, throwing him about fifteen feet from a ditch, where he came to. He went on, the next morning, and noticed he was sore in both hips, but he went on for three or four days and the pain got worse until he was "falling out" two or three times a day, when the front-line "medics" finally came along. "The front line medics took me in — I didn't know — woke up in the hospital." This was after fourteen days of continual combat as a rifleman.

As a result of the concussion of the shell and its effects upon him, appellant was taken to a field hospital in France; then to a hospital in England for three months; then he was returned to the United States where he was confined to Kennedy General Hospital in Memphis, Tennessee, for six weeks and, after that time, in many other Army hospitals.

Before relating the hospital reports and examinations of appellant by Army doctors, the case should be clarified at this point by the following statement of facts which will be hereinafter fully developed.

Dr. L. H. Wagers, M.D., of Hazard, Kentucky, Dr. C. Dana Snyder, M.D., an orthopedic surgeon, of Hazard, Kentucky, Dr. M. B. Payne, M.D., of Hazard, Kentucky, and Dr. W. K. Massie, M.D., an orthopedic surgeon of Lexington, Kentucky, all of whom examined appellant, gave it as their opinion that he was totally disabled.

This is what would seem to the layman a remarkable case of total disability caused by arthritis which developed over a period of twenty years, but which could not be objectively proved, and was not discernible by X-ray examination or physical examination until at the end of that period of twenty years. The evidence substantiating the foregoing consisted of testimony elicited by the Hearing Examiner from an expert orthopedic surgeon; and it was undisputed.

We will discuss the evidence in the record of all the hospitals where appellant was examined and treated, as well as the diagnoses of the Army doctors and psychiatrists from the time appellant was injured in combat action in France in 1944, which we have previously mentioned, to the time in 1963 when appellant filed his claim for disability benefits, as well as that of the expert medical witnesses, whose evidence was taken for the hearing of appellant's application for disability benefits, together with that of the Vocational Consultant, who was a witness on the hearing.

After being returned to the United States from the Army hospital in England, appellant, as mentioned, was confined to Kennedy Memorial Hospital in Memphis, Tennessee, on December 11, 1944, for six weeks. The medical experts there diagnosed him as being psychoneurotic, anxiety state, moderate, cause unknown, manifested by tension, apprehension, and multiple somatic complaints. They reported that he had a mental age of ten years, eleven months, A/C Wechsler mental ability scale — and complained of pain in hips and knees. X rays of chest, pelvis, spine, and knees were normal. Bones and joints were objectively normal.

From Kennedy General Hospital in Memphis, appellant was taken to Wakeman General Hospital at Camp Atterbury, Indiana, and, after three months, upon the finding that he was suffering from psychoneurosis, was discharged from the service. It was stated in the report from Wakeman General Hospital that his physical examination showed no arthritis, osteitis, osteomyelitis, or other orthopedic disease. Appellant claimed that all during this time he was suffering from a painful arthritic condition.

On May 3, 1945, the Veterans Administration at Columbus, Ohio, found that appellant was suffering from psychoneurosis, hysteria, and severe social and industrial incapacity, but that the arthritis claimed by appellant was not shown by the evidence of record.

On May 28, 1947, appellant was again examined by the Veterans Administration at Owingsville, Kentucky, where he complained of pain in both hips, particularly the left hip, and down the left thigh and leg. There was no objective evidence of rheumatism, atrophy, or ankylosis, and the diagnosis was again, psychoneurosis.

On June 29, 1947, appellant was examined at the Veterans Administration in Louisville, Kentucky, where his 50% disability rating was continued.

On October 26, 1949, appellant was again examined at the Veterans Administration at Louisville, where he complained of pain in the left hip, and limped on the left. A mental examination showed him slow and sluggish mentally; that he had poor judgment, and did not have true insight; that he was childish and immature, and his reasoning and judgment were inadequate. The diagnosis was psychoneurosis, conversion type reaction, anesthetic type.

On November 2, 1949, appellant was again examined at the Veterans Administration at Louisville and the Administration continued "service connected neuropsychiatric disability rating 50% — arthritis claimed by veteran not shown by evidence of record."

On May 20, 1952, the Veterans Administration at Louisville made a further examination of appellant where he again complained of "trouble with left leg," but there were "no abnormal physical findings — psychiatric examination shows claimant maladjusted and lacking in urge and industry and practically illiterate." The diagnosis again was "conversion reaction."

On May 29, 1952, another Veterans Administration examination was made at Louisville where it was reported that the veteran did not have symptoms of severe psychoneurosis sufficient to cause a severe social or industrial incapacity, and it was diagnosed: "Neuropsychiatric disability rating reduced from 50% to 30%" commencing two months in the future. The diagnosis was again, "conversion reaction."

On May 19, 1954, appellant had a "special neuropsychiatric examination" at the Veterans Administration in Louisville, where he complained of numerous ailments, stating that his hips were sore nearly all the time, and that his leg hurt him so much that he got nervous. "He believes that he is chronically and permanently ill and disabled in some way without knowing specifically what his body ailment is. His simple explanation is `It's my hip. It may be arthritis.'" The diagnosis was the same as in all the prior examinations, being psychoneurosis, conversion reaction, chronic.

On June 1, 1954, the Veterans Administration at Louisville made another examination of appellant and found no change in neuropsychiatric incapacity and did not warrant change in service-connected status or evaluation of any disability, or contain any new or material evidence relevant to the question.

On June 12, 1957, a further examination was made at the Veterans Administration at Louisville, and stated appellant complained that his arthritis was worse since his last examination and he was sore in chest, back, and side. The diagnosis was "Conversion reaction, evidenced chiefly by a left limp display. The objective neurological examination is negative."

On July 2, 1957, a further examination at the same office revealed a continuing neuropsychiatric incapacity without any material change for the past five years, "rating 30% — static."

And now, in the next medical report, hereinafter mentioned, for the first time in fifteen years, since appellant...

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