Beavers v. Secretary of Health, Ed. and Welfare

• Decision Date: 21 June 1978
• Docket Number: No. 76-2325,76-2325
• Parties: Orville BEAVERS, Plaintiff-Appellant, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 383

577 F.2d 383

Orville BEAVERS, Plaintiff-Appellant, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant-Appellee.

No. 76-2325.

United States Court of Appeals, Sixth Circuit.

Submitted Dec. 7, 1977.

Decided June 21, 1978.

Martin F. Sullivan, Jr., Louisville, Ky., for plaintiff-appellant.

Albert Jones, U. S. Atty., James H. Barr, Asst. U. S. Atty., Louisville, Ky., for defendant-appellee.

Before WEICK, PECK and MERRITT, Circuit Judges.

JOHN W. PECK, Circuit Judge.

Orville Beavers is 36 years old, and has not worked since 1972. Shortly after he was laid off from his construction job "until his back got well," because he had been missing so much work, he applied for social security disability benefits. After a hearing, an administrative law judge held that he was totally disabled, and entitled to benefits. The Appeals Council took up the case on its own motion, and reviewed the record, considering also reports from an orthopedic surgeon who, at the request of the Council, examined the various medical reports and, without seeing the plaintiff, concluded that he was employable. It reversed the administrative law judge's decision and denied benefits.

On appeal, the district court held that consideration of the surgeon's reports was improper, relying on Lonzollo v. Weinberger, 534 F.2d 712 (7th Cir. 1976), which held that reliance on reports, received by the Appeals Council without affording an opportunity for cross-examination, violated the statutory right to a decision "on the basis of the evidence adduced at the hearing." 42 U.S.C. § 405(b). ¹ However, the court held that even if the surgeon's reports were wholly disregarded, there was still substantial evidence to support the decision of the Appeals Council, and therefore upheld the denial of benefits. This appeal challenges that determination.

Plaintiff has a sixth-grade education, and has no training in any skill or craft. Until 1972, he was employed at various times as a construction worker, factory laborer and assembly-line worker. The two vocational experts who considered the plaintiff's case noted that he has no skills from his past work which would be transferable to a new job, but that he has average intelligence, dexterity and coordination.

The plaintiff has a bullet lodged in his spine, as well as metal clips from an operation performed in 1966. The operation removed his left kidney and spleen, damaged in the gunshot accident. It is unclear whether these problems are causing any of plaintiff's present symptoms, but they make it impossible for him to engage in manual labor, because of the risk of dislodging the bullet and causing further damage. At least two employers have refused to hire Beavers for this reason.

In 1972, plaintiff began suffering the pain in his back, legs and head which is the primary basis for his claim of disability. He was fired because he was missing so much work, and since then has been hospitalized several times, complaining of incapacitating back and leg pain and headaches. A formidable series of medical tests have been performed on him, and though they were in the main inconclusive, there is clear evidence that plaintiff is suffering from arthritis and degenerative disc disease, and that he has severe curvature of the spine. The doctors' reports are in total agreement that plaintiff can not return to his former work, and further can not work at any job requiring lifting, bending, standing or sitting for extended periods of time.

Plaintiff testified at the hearing and further amplified the effects of his physical problems. He testified that pain keeps him from sleeping. If he bends over or kneels down, his back or his knees "lock," and he is unable to move without assistance. He can not sit or stand for extended periods, and has to constantly shift his position to ease the pain. When he has to stand, his legs go numb, and at times he has fallen. Pain is constant, but it is frequently so acute that he has to go to bed for two or three days at a time. Painkillers have been prescribed which provide enough relief that he can do some chores around the house, but he wears a back brace whenever he is out of bed. Beavers' testimony was corroborated by an affidavit submitted by his wife.

The evidence militating against a finding of total disability includes the opinion of one of claimant's doctors, suggesting that he be rehabilitated, since his "arms are perfectly good," and the testimony of a vocational expert who opined that the claimant should be able to perform the work of a telephone soliciter, telephone collection clerk, ticket seller, or bench assembly worker, jobs which were available both locally and in the national economy. Further evidence (or rather, lack of evidence) supporting a conclusion that plaintiff is not disabled is the fact that the medical evidence does not show a serious injury or disease which would readily account for the existence of disabling pain.

The Appeals Council concluded that "the medical evidence does not reveal that the claimant has a significant physical or mental impairment or combination of impairments which would preclude him from performing any substantial gainful activity." This is true as far as it goes, and if the medical evidence were all that the administrative law judge had considered in finding that plaintiff was disabled, the decision of the Appeals Council would be supported by substantial evidence. But the administrative law judge also had before him the personal testimony of the claimant, which, if believed, establishes beyond a doubt that he was totally disabled.

This is not a case in which there were complex conflicts in the evidence to be resolved by the Secretary. The medical evidence clearly establishes some disability; the only issue is the extent of the disability whether the disability is extensive enough to keep Beavers from working. The crucial factor is Beavers' credibility. If he is believed, his testimony together with the medical evidence clearly established total disability, since the Appeals Council has identified no job which could be performed by a man in constant pain, who must spend a day or two virtually every week in bed, is prone to fall, and cannot lift, bend, lean over, or sit or stand for extended periods of time. If he is not believed, then the medical evidence alone would not seem to establish total disability, and the vocational expert's conclusion that he could perform a light, sedentary task would be entirely reasonable.

In rejecting the administrative law judge's decision, the Appeals Council did not state expressly that plaintiff's testimony concerning his suffering and limitations arising from it was not credible. It stated only that it had "carefully considered claimant's complaint of pain. However, the social security regulations require that while the claimant's complaint of severe pain may be indicative of an important factor causing functional loss, it must be associated with relevant abnormal...