Brasher v. Celebrezze

• Decision Date: 05 February 1965
• Docket Number: No. 17802.,17802.
• Citation: 340 F.2d 413
• Parties: James Paul BRASHER, Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

340 F.2d 413 (1965)

James Paul BRASHER, Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Appellee.

No. 17802.

United States Court of Appeals Eighth Circuit.

January 21, 1965.

Rehearing Denied February 5, 1965.

James Paul Brasher, pro se.

F. Russell Millin, U. S. Atty., Kansas City, Mo., and John L. Kapnistos, Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before VAN OOSTERHOUT, BLACKMUN, and MEHAFFY, Circuit Judges.

BLACKMUN, Circuit Judge.

In February 1962, while a patient at the United States Medical Center at Springfield, Missouri, James Paul Brasher instituted this action under § 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), for judicial review of the Secretary's final decision disallowing his claim for a period of disability as defined by § 216(i) and for disability insurance benefits under § 223, 42 U.S.C. §§ 416 (i) and 423. He obtained no relief administratively, even after the district court had remanded the case on the Secretary's motion, as permitted by § 205 (g), for further administrative action. Judge Becker upheld the Secretary's decision and the case is now here on Brasher's appeal.

The claimant was 33 years old when he filed his application in January 1961. In that application he stated that he had been in military service from June 1945 to July 1946; that he had worked for Chrysler Corporation at Evansville, Indiana, from March 1953 to February 1957; that he had never before filed for a period of disability or for social security benefits; that he became unable to work on March 18, 1960, due to tuberculosis; that he had had one year of high school; and that he was not married.

Brasher's application, his pleadings, and his letter-briefs, although informal, enable us readily to ascertain his factual assertions, his claim, and his arguments. His case rests on five factors: treatment "for a period of ten years or longer for a severe liver condition"; permanent deafness in the left ear due to a perforated drum; "a permanent nerve condition"; tuberculosis "that will continue for an indefinite period of time"; and hopeless alcoholism.

This court, in Celebrezze v. Bolas, 316 F.2d 498, 500-01, 507 (8 Cir. 1963), tried painstakingly to set out, with supporting authority of our own and of other courts, the legal standards applicable to appeals of this kind. We noted that (a) the claimant has the burden of establishing his claim; (b) the Act is remedial and is to be construed liberally; (c) the Secretary's findings and the reasonable inferences drawn from them are conclusive if they are supported by substantial evidence; (d) substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (e) it must be based on the record as a whole; (f) the determination of the presence of substantial evidence is to be made on a case-to-case basis; (g) where the evidence is conflicting it is for the Appeals Council on behalf of the Secretary to resolve those conflicts; (h) the statutory definition of disability imposes the three-fold requirement (1) that there be a medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration, (2) that there be an inability to engage in any substantial gainful activity, and (3) that the inability be by reason of the impairment; (i) such substantial gainful activity is that which is both substantial and gainful and within the claimant's capability, realistically judged by his education, training, and experience; (j) the emphasis is on the particular claimant's capabilities and on what is reasonably possible, not on what is conceivable; and (k) it is not the duty or the burden of the Secretary to find a specific employer and job for the claimant but, instead, some effort and some ingenuity within the range of the claimant's capacity remains for him to exercise. These standards were again recognized in our later case of Celebrezze v. Sutton, 338 F.2d 417 (8 Cir. 1964).

The record is fairly substantial. It contains many medical reports and opinions. Brasher himself introduced no medical testimony. He did, however, testify personally before a hearing examiner.

The claimant had had a number of jobs, both before and after his military service. After the war he worked primarily as a spot welder and metal finisher. In March 1960 he was convicted for a Dyer Act violation. A medical examination in a Michigan county jail revealed the presence of active pulmonary tuberculosis. As a consequence, upon being sentenced, he was sent directly to Springfield. He was given medical examinations on admission there. Progress reports were made from time to time thereafter and, upon his transfer from Springfield in November 1962, a discharge report was issued. Most of these were over the name of Jesse D. Harris, M.D., Clinical Director of the Center and certified by the American Board of Internal Medicine. In October 1962, in connection with his claim for disability, Brasher was examined by Dr. G. D. Callaway, Jr., a private physician of Springfield and board-certified in internal medicine. In November the claimant was transferred to the federal penitentiary at Terre Haute. There, in 1963, through the Division of Vocational Rehabilitation of the State of Indiana, examinations in connection with his claim for benefits were performed. These included a psychiatric examination by Norman M. Silverman, M.D., part-time specialist in psychiatry; a general examination by Byron C. Wheeler, M.D., internist; a psychological examination by Rutherford B. Porter, Director of the Special Education Clinic of Indiana State College; and an ear examination by N. D. Thede, Chief Medical Officer of the Terre Haute penitentiary. Audiograms taken of the claimant were submitted for interpretation to W. J. Mankin, M.D., of Terre Haute, board-certified specialist in otolaryngology and ophthalmology. In July the hearing examiner submitted the numerous medical reports, including the ones we have mentioned and others, to Frank Princi, M.D., of the Kettering Laboratory in Cincinnati. In August certain breathing tests were made by E. R. Denny, M.D., of Terre Haute, board-certified internist. Brasher was finally released on November 15, 1963.

The results of these various examinations are noted as we consider his five factors in turn:

1. The "severe liver condition". The lengthy record, which we have examined meticulously, contains nothing which substantiates the existence of such a condition. Brasher had known that extensive drinking may promote cirrhosis of the liver but none of the examinations disclosed the presence of this condition. Any medicines he took were thus anticipatory rather than remedial. Dr. Harris, in November 1962, in response to Brasher's claim of liver trouble, observed that this was not then significantly present. Dr. Callaway, the month before, noted that the claimant said he had been taking a liver medicine for about ten years in order to "prevent cirrhosis", but the doctor observed, "There is no evidence at this time of liver disease". Dr. Wheeler, in March 1963, stated, "There is no evidence of any significant liver impairment". And Dr. Princi, in his report of August 1963, stated that the studies "indicate no liver dysfunction".

2. Hearing loss. Brasher has complained continuously about his ears and his hearing. In May 1960 Springfield observed a perforation of the left drum and made a diagnosis of chronic otitis media. In the following November "a mixed type of deafness bilateral, with considerable eighth nerve involvement, on the left side" was noted. An audiogram revealed hearing losses on both sides. In January 1963 Springfield reported that it was not in a position to make an estimate as to hearing restoration through surgery and that "in view of his total picture * * * it would be inadvisable to hastily consider any surgery on this subject's ear at this time". Dr. Callaway noted that the patient "was somewhat hard of hearing on occasion during the examination and interview" but "in general it was noted that he was able to respond to the ordinary male speaking voice". He also noted the perforation. Dr. Silverman stated, "He does not demonstrate any impairment of hearing inasmuch as he hears the low spoken voice of the examiner adequately at all times". Dr. Wheeler stated that his hearing was "generally good" on the right and "variable" on the left but "He at times can hear a watch or listen to a radio". Dr. Thede stated, "Grossly, the subject can hear the whispered voice at ten feet". He saw no perforation. Dr. Mankin said, "An air conductive hearing aid in the better ear probably would be beneficial". Dr. Princi felt that the ear reports were inconclusive and that malingering was "the most likely interpretation".

3. Nervousness. Dr. Harris noted that, while Brasher was "rather quiet and somewhat withdrawn", there was insufficient basis "to consider the presence of any unusual mental illness"; that while he was attempting to obtain disability recognition, "his conduct became somewhat peculiar"; that he insisted on being locked up in a single cell which he was reluctant to leave; that on a neuropsychiatric examination he received a diagnosis of "Socio-pathic personality, alcoholism, with possibility of incipient psychosis"; and that following his removal to the chronic medical...