Arms v. Gardner, 16251.

• Decision Date: 01 December 1965
• Docket Number: No. 16251.,16251.
• Citation: 353 F.2d 197
• Parties: Clyde ARMS, Plaintiff-Appellee, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

353 F.2d 197 (1965)

Clyde ARMS, Plaintiff-Appellee, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellant.

No. 16251.

United States Court of Appeals Sixth Circuit.

December 1, 1965.

Florence Wagman Roisman, Department of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., Sherman L. Cohn, Attorney, Department of Justice, Washington, D. C., George I. Cline, U. S. Atty., Lexington, Ky., on brief, for appellant.

Alva H. Hollon, Hazard, Ky., for appellee.

Before WEICK, Chief Circuit Judge, and^* CONNELL and^** MACHROWICZ, District Judges.

PER CURIAM.

This appeal is from an order of the District Court reversing the decision of the Secretary of Health, Education and Welfare denying disability benefits to appellee and remanding the case to the Secretary for an award for the period of disability. The action was brought by appellee under § 205(g) of the Social Security Act 42 U.S.C. § 405(g).

Appellee claimed disability benefits in 1962 for disability alleged to have resulted from a disc operation performed in 1953. The appellee had been employed in a mine in Kentucky for twenty-six (26) years as a motorman and coupler. He left the mine in 1952 and went to Cincinnati where he worked for a company making cookies as a maintenance man until the time of his operation. After the operation he returned to his last job in Cincinnati and worked there until January, 1956. The reason for his leaving the job at that time is in dispute, but he returned to Kentucky and secured employment in 1958 as night watchman at a coal mine, retaining that job until 1960 when the mine closed. He has been unemployed since that time.

There was medical testimony before the Hearing Examiner of the Department of Health, Education and Welfare to the effect that appellee could not perform heavy work, but the undisputed testimony indicated that he could and did perform light work. The Hearing Examiner's decision denying the application was appealed to the Appeals Council, which declined to review the matter, thus making the Examiner's determination the Secretary's final decision.

Appellee was represented at the Examiner's hearing by an attorney, but the record discloses that the attorney took no part in the examination of witnesses, offered no testimony on appellee's behalf and gave the appellee no apparent legal assistance in the preparation of the case, admitting on the record that he knew very little about Social Security laws.

In granting the appellee's motion for summary judgment, the district Judge held

(a) that the Secretary was required to determine both what claimant can do and what employment opportunities are available for the claimant, and

(b) that "in this case no adequate findings based on substantial evidence were made upon such issues * * *."

The issue in this case is whether the record before the Examiner supports the Secretary's conclusion that appellee's impairment did not prevent him from engaging in some substantial gainful activity.

The burden is upon the claimant to prove his inability to perform his former work. (Ellerman v. Flemming, D.C., 188 F.Supp. 521.) The record in fact discloses evidence that claimant held two jobs since the alleged onset of disability, — one as a maintenance man in the cookie plant and later as night watchman in a coal mine. Both of these jobs constituted substantial gainful activity and there was evidence that he left both of them for reasons totally unrelated to his impairment.

Section 223(c) (2) of the Act declares that:

"The

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