Bledsoe v. Richardson, 72-1052.

• Decision Date: 14 November 1972
• Docket Number: No. 72-1052.,72-1052.
• Citation: Bledsoe v. Richardson, 469 F.2d 1288 (7th Cir. 1972)
• Parties: Harold E. BLEDSOE, Plaintiff-Appellant, v. Elliott L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

469 F.2d 1288 (1972)

Harold E. BLEDSOE, Plaintiff-Appellant, v. Elliott L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 72-1052.

United States Court of Appeals, Seventh Circuit.

Argued October 31, 1972.

Decided November 14, 1972.

Morris B. Blumberg, Terre Haute, Ind., for plaintiff-appellant.

Stanley B. Miller, U.S. Atty., Indianapolis, Ind., for defendant-appellee.

Before STEVENS and SPRECHER, Circuit Judges, and CAMPBELL, Senior District Judge.^*

STEVENS, Circuit Judge.

Claimant-appellant petitioned the district court to review a denial of social security disability benefits. The district court entered summary judgment against claimant upon finding that there was substantial evidence to support the Secretary's determination that appellant was not under a "disability" as defined in Title II of the Social Security Act.¹ We affirm.

Claimant's theory is that the aggregate effect of his several physical impairments renders him disabled and entitles him to disability benefits. The Hearing Examiner rejected this contention, expressly finding that the appellant's disorders "alone or in combination thereof are not so severe that they result in any marked or significant interference with the claimant's work capacity in the type of employment he has previously engaged as a bartender." Hearing Examiner's Decision at 7, App. 18. The question presented by this appeal is whether the administrative findings are supported by substantial evidence.

We share the opinion evidenced by the Fourth Circuit's holding in Dillon v. Celebrezze, 345 F.2d 753 (1965), that such findings should be carefully scrutinized when it is manifest that the claimant's work capacity is impaired by his physical condition. Nevertheless, it is not our function to substitute our judgment for that of the administrative agency which processed the claim. In this case we are satisfied that the record contains substantial evidence supporting the Secretary's findings.

Appellant is a World War II veteran. Since 1944 he has carried a piece of shrapnel in his right shoulder; it causes him some pain and entitles him to a 30% disability pension as a veteran. Upon discharge from the Navy in 1945 he opened a grocery store, but the venture failed after three years. He then worked in several capacities, including as a machine lathe operator and as a parts inspector on an assembly line. He was laid off in the spring of 1956. He had no steady employment until he was hired by the Indiana Highway Department in 1961; during that period he performed only odd jobs such as planting and fruit picking. After two years with the highway department he went to work for his aunt as a bartender and continued in that capacity until she sold the tavern in June of 1969. Except for a brief period of picking fruit for his brother, he has been unemployed since then.

On April 15, 1970, claimant filed an application for disability insurance benefits with the Department of Health, Education and Welfare. He was promptly examined by his own physician, Dr. Rompf, and given a "disability interview" by a representative of the Secretary. His doctor's diagnoses were: "1. Generalized osteoarthritis; 2. Hiatal hernia; 3. Foreign body in right shoulder; 4. Old wrist fracture (right)." Ex. 11, App. 76, 78. These medical findings have been accepted at all subsequent stages of the proceeding.

In his application and in his interview claimant also complained that his legs buckled and cramped upon walking and that he suffered from stomach pains. The interviewer noted no observable physical difficulties,² and commented that appellant was: "Very evasive. Very difficult to obtain any answers." Ex. 10, App. 72, 75. In May of 1970 X-ray examinations were made to determine the basis for appellant's claim that his legs buckled.³ In a report dated May 20, 1970, the results of the X-ray examination were summarized as follows:

"The claimant complains of arthritis in right shoulder, arm and back. He also says legs buckle and cramp upon walking.

"X-rays taken 5/11/70 of lumbo-sacral spine show a mild curve of the lumbar spine. There is no evidence of fracture, tumor or bone defect. The vertebrae and disc spaces all appear normal. At the same time X-rays were taken of the pelvis and hips which were normal except for minimal degenerative joint disease in the hips.

"Considering the absence of any X-ray or laboratory evidence to support an impairment severe enough to preclued the W/E wage earner from engaging in his usual employment, it is determined the W/E is not under a disability." Ex. 14, App. 83, 84.

On June 16, 1970, appellant was advised that although he met the earnings requirement for disability purposes, his medical condition was not disabling within the meaning of the law. Ex. 2, App. 62.

On June 24, 1970, appellant filed a request for reconsideration, stating that he was unable to work because of "diseased hip joints, arthritis of spine, hernia, and calcium deposits in aorta." Ex. 3, App. 64. He further stated that his doctor agreed that he was unable to work and that it was necessary for him to take nerve and pain pills daily, shots every three weeks, and that his legs were weak and buckled. Following that request, on August 13, 1970, appellant was reexamined by Dr. Wheeler, a physician selected by the Secretary. Dr. Wheeler's report is thorough and detailed and confirms the presence of various physical impairments. In the concluding paragraph of his report Dr. Wheeler stated, in part:

"Prognosis for return to work is fair. His pain of his joints and muscles and attacks of weakness of his legs would interfere with him performing manual labor. It is felt that he could safely return to his previous occupation. His malfunction appears to be slightly progressive. Patient could take training for a full time sedentary position requiring standing and limited walking. No apparent etiology for the attacks of weakness of his legs." Ex. 16, App. 86, 88.

Dr. Wheeler's final conclusion, stated in summary form on September 18, 1970, referred not only to specific impairments, but also to appellant's "combination of impairments." He stated:

"A review of the recent consultative examination does not demonstrate any body system impairments nor combination of impairments whose severity level would prevent this claimant from engaging in his previous work as a bartender. The medical evidence is considered adequate for functional assessment and no further development will be necessary." Ex. 18, App. 92.

On October 14, 1970, appellant received a notice of reconsideration determination, advising him that the medical evidence, including the reports from his attending physician, as well as from Dr. Wheeler, had been reviewed and that it had again been determined that his physical condition would not prevent him from working as a bartender or from doing certain kinds of light physical or sedentary work. Ex. 4, App. 65-66.

Thereafter appellant filed a timely request for a formal hearing, which was held on January 20, 1971. He testified in person at that hearing and supported his claim with additional evidence not previously considered. That evidence included: (a) a letter from Dr. Rompf (Ex. 22, App. 100) referring to his treatment of appellant for "back pain, buckling of both legs, trouble with food digestion, sinus trouble, and a lot of colds," and expressing the opinion "that this man is unable to make a living"; (b) a short note from Dr. M. E. Tomak (Ex. 24, App. 102) certifying that appellant had been under his care in June of 1965 in connection with hypertrophic changes in the cervical spine, but not indicating any opinion about his condition subsequent to June of 1969; and (c) a note from Dr. Joseph E. Dukes (Ex. 25, App. 103) stating that he had treated appellant periodically for several years, that he had "frequent colds, peptic ulcer disease," and had previously had "acute paroxymal sic tachycardia."

At the hearing appellant was the only witness who testified. The Hearing Examiner prepared a detailed written opinion in which he summarized appellant's testimony, the medical evidence in the file, and particularly the three physicians' statements submitted subsequent to Dr. Wheeler's examination. He commented specifically on each of the disorders disclosed by the record. It is apparent from his opinion that although he reviewed and considered the brief reports of Drs. Rompf, Tomak and Dukes, he gave greater weight to the detailed findings by Dr. Wheeler. It is also apparent that he relied in part on his own impressions derived from appellant's testimony at the hearing.

Based on the following specific findings he decided that appellant was not entitled to disability benefits under the statute:

"1. The claimant\'s impairments have been diagnosed as generalized osteoarthritis, peptic ulcer disease, hiatal hernia, and varicose veins;

2. The claimant has a mild osteoarthritis disorder and a mild peptic ulcer causing no significant physical limitation and no discernible anatomical changes at the present time;

3. The claimant\'s hiatal hernia and varicose veins have not been diagnosed at the present time as a serious impairment;

4. The claimant retains the physical capacity to perform substantial gainful activity of a light physical nature on a regular basis;

5. Jobs for which the claimant is qualified exist and are readily available to him in the area in which he resides;

6. The evidence fails to establish that the claimant is precluded from engaging in gainful activity by impairment or impairments which can be expected to result in death or which have lasted or can be expected to last for a continuous period of not less than 12 months;

7. The claimant was not under a `disability\' as defined in the Social Security Act, as amended." Hearing Examiner\'s Decision at 8, App. 19.

Appellant made a timely request for a review of the Hearing Examiner's decision. On February 23, 1971, the ...