Boyd v. Gardner

• Decision Date: 04 April 1967
• Docket Number: No. 11014.,11014.
• Citation: 377 F.2d 718
• Parties: Fred BOYD, Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

377 F.2d 718 (1967)

Fred BOYD, Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Appellee.

No. 11014.

United States Court of Appeals Fourth Circuit.

Submitted March 7, 1967.

Decided April 4, 1967.

Fred O. Blue, Bluefield, W. Va., and T. G. Shufflebarger, Richlands, Va., on brief, for appellant.

William C. Breckinridge, Asst. U. S. Atty., on brief, for appellee.

Before SOBELOFF and CRAVEN, Circuit Judges, and HARVEY, District Judge.

SOBELOFF, Circuit Judge:

Appellant, Fred Boyd, applied on August 3, 1964, for disability insurance benefits under Sections 216(i) and 223 (a) of the Social Security Act, 42 U.S.C. §§ 416(i) and 423(a) (1958). His claim was denied by the Hearing Examiner, and this action was affirmed by the Appeals Council. On petition for review, the District Court for the Western District of Virginia granted the Secretary's motion for summary judgment, on the ground that there was substantial evidence to support the Department's position that although the claimant could not return to heavy labor, he had failed to establish that he was so severely impaired as to be unable to engage "in any substantial gainful activity."

The claimant was born in 1921 in Buchanan County, Virginia. He has never received any formal schooling and is totally illiterate. His verbal I.Q., when tested, equalled 70, and a psychiatrist found him to be in the "moderate range of mental deficiency." At the time of the Hearing Examiner's report, Boyd was living with his wife and nine of his twelve children, who ranged in age from 22 years to 18 months. In his early years, he worked on his father's fifteen-acre farm at such chores as hoeing, plowing with a mule, feeding chickens, and gathering eggs. He has, however, had no experience whatever with farm machinery. At the age of 19, he went to work in the coal mines hand loading coal. His only other work experience during the approximately twenty years spent in the mining industry was in drilling, blasting, and timbering, none of which can be termed "skilled" labor. He has never served in the armed forces.

In 1961, as a result of a mine accident in which his back was broken, Boyd was hospitalized for nine days and then discharged in a body cast and confined to bed at home for nine weeks. Subsequently, he wore a back brace for an undisclosed period. He was absent from work for about seven months after the accident, and claims that when he returned, he was unable to maintain a regular working schedule because of pain in his lower back. He has not worked since March, 1964.

The medical evidence, based on x-ray reports and on information furnished by six doctors who examined the claimant between March, 1964 and December of that year, shows that in addition to the claimant's persistent subjective complaints of pain in his back and arms,¹ there were objective findings of the narrowing of the second lumbar vertebra due to the compression fracture suffered by the claimant in 1961, associated with myositis (inflammation) about the lumbar muscles, some minor osteoarthritis (a chronic multiple degenerative joint disease), chronic low back strain, chronic bronchitis, and enlarging of the finger joints.

In addition to his physical disabilities, claimant was diagnosed by a specialist in neuropsychiatry as having "a psychoneurotic disorder with somatic conversion symptoms" sufficient to classify Boyd as "in the moderate range of psychiatric disability." The psychiatrist noted that Boyd's "memory and recall functions were only fair, his judgment was poor, and his basic adjustment with other people somewhat inadequate and inept."

The examining physicians concluded that the claimant was unable to undertake hard manual labor, but thought that he could perform "some light work which did not require stooping or bending" — although one stated flatly that Boyd was "unable to do gainful employment," and another cautiously qualified his conclusion with the suggestion that "with treatment * * * eventually he should be able to return to some type of lighter work."

The record discloses, however, that the Hearing Examiner relied almost exclusively on the opinion of a general surgeon. It is not unfair to say that Dr. Olwine's report exhibited a somewhat hostile attitude toward claimant. Having examined Boyd at the request of the state Division of Rehabilitation, he reported that "quite frankly I get the impression that he enjoys receiving welfare and doesn't care whether he ever works again or not," and that "due to this man's mental attitude I have my doubts if he will ever do much work again."² Despite this condemnatory attitude toward the claimant, the surgeon's prognosis was not that Boyd could undertake heavy manual labor, but that he should be able to perform some light work "which does not require stooping over in the mines that had been his livelihood since he first began work."

The Hearing Examiner also mistakenly attributed an adverse significance to statements of the examining psychiatrist that claimant's "motivation to improve his current level of function or to improve his conditions in life remain rather poor," and that Boyd "won't change much, his motivation to improve himself is certainly not great and I think he will continue to rely on other people for help, care and assistance." This is like the situation in Lippert v. Ribicoff, 215 F. Supp. 28 (N.D.Calif.1963),³ where the Examiner put reliance on a medical report, which included the statement that the claimant's "lack of motivation will probably interfere with his performing adequately in any position in which he is placed," to support a finding of no disability. This was condemned by the court, which declared that

"the law compels the conclusion that such medical evidence is more proof of disability rather than the contrary. As was stated in Ollis v. Ribicoff (W.D.N.C.1962), 208 F.Supp. 644, at 648, plaintiff\'s `physical and mental capacity to resist or adapt\' to his impairments is a `proper basis for evidentiary inferences on these matters. Underwood v. Ribicoff, supra.\'"

215 F.Supp. at 34. In the present case, the Hearing Examiner found the diagnosed psychiatric disability "not, in any sense of the word, truly disabling," because although Boyd tested in the moderate range of mental deficiency, the Examiner felt that claimant's

"lack of education and of a high intelligence level was no handicap to his working before he had the back accident, and, in view of the minimal nature of his back difficulties, should be no obstacle at the present time."

In light of the fact that prior to his back injury, the claimant was doing unskilled heavy manual labor, which all the examining physicians agree he is no longer able to do, it does not appear to be relevant that Boyd was not "handicapped" by a lack of education before his accident.

Since it is conceded that Boyd is no longer capable of doing heavy manual labor in the mines — the only kind of work he ever did in the past — it is incumbent upon the Secretary to show that there are other kinds of work actually available, for which a man with the claimant's impairments may be considered reasonably suited.⁴ In an attempt to meet this burden, the testimony of Dr. Karl F. Heiser, a Ph.D. in psychology and a specialist in vocational counseling, was introduced. Having first referred to the all too familiar U. S. Dictionary of Occupational Titles, Dr. Heiser testified that in his opinion there were a number of jobs classified as light or sedentary, which do not require heavy lifting, or rapid frequent bending, or stooping, that a person similar to the claimant in age, education, physical and mental impairments, prior working experience, and mode of life could perform.⁵ At no point in his testimony, however, did Dr. Heiser evaluate the skills and movements necessary for the occupations he listed, or show that the skills possessed by Boyd are transferable to such jobs.⁶ Gardner v. Earnest, 371 F.2d 606 (4th Cir. 1967); Davidson v. Gardner, 370 F.2d 803, 826 (6th Cir. 1966).

The examining psychiatrist — not to be confused with the psychologist-vocational consultant — stated in his report that Boyd "has had no experience with the pencil," "cannot even sign his name," and "has trouble doing simulated purchases from the store." With such limitations, it is difficult to imagine for what type of light work he could possibly qualify. The government notes in its brief that the claimant is able to tell time and count money. It seems to us these "skills," if indeed he actually possessed them, can hardly be thought to equip him for functioning in a substantially gainful activity in the world of today.

Invoking the Census Report and directories showing employment in industries in various states, the vocational consultant then testified as to where such jobs might be found:

"Well, the woodworking industry is throughout this area of the country. And in Kentucky there are 62 companies of sic the median number of employees per company is 20. In Eastern Tennessee and Western Virginia, there are many woodworking companies, but I don\'t have those directories with me and I can\'t specify the number. The tobacco industry starts at the Tri-City area and goes on south into North Carolina. Or you can find these same jobs in the Lexington-Frankfurt to Louisville area in Kentucky. The slaughtering industry is throughout this part of the country. Kentucky has 72 slaughtering plants in which you find a variety of these jobs. Now, paper and pulp is a large industry at the southern part of Virginia and northeastern Tennessee and Western

...