Browne v. Richardson, No. 72-1191.

• Decision Date: 02 November 1972
• Docket Number: No. 72-1191.
• Citation: 468 F.2d 1003
• Parties: Paul K. BROWNE, Sr., Plaintiff, Appellant, v. Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

468 F.2d 1003 (1972)

Paul K. BROWNE, Sr., Plaintiff, Appellant, v. Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant, Appellee.

No. 72-1191.

United States Court of Appeals, First Circuit.

Argued September 12, 1972.

Decided November 2, 1972.

James M. McDonough, Boston, Mass., for appellant.

Paul F. Ware, Jr., Asst. U. S. Atty., with whom Joseph L. Tauro, U. S. Atty., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and HAMLEY,^* Senior Circuit Judge.

COFFIN, Chief Judge.

This is an appeal from the district court's order granting the defendant Secretary's motion for summary judgment because it found the Secretary's decision, that the plaintiff was not entitled to disability benefits, was supported by substantial evidence on the record as a whole.

On April 12, 1967, plaintiff first applied for disability benefits. In that application his response to the form question "When did you become unable to work because of your disability" was "Oct. 3, 1966." In answer to other questions he said that he was in the real estate and mortgage business both in 1967 and the two prior years and that although he had no earnings in 1967, his total earnings for the prior year were $2,000.¹ His claim was denied because he did not meet the insured status requirement of 42 U.S.C. § 423(c) (1) (B) (i) during or after the calendar quarter in which he claimed to have become disabled. On October 3, 1968, he filed a second application for disability benefits, this time answering the question as to disability with the year "1964", not indicating any occupation, and showing no earnings in either that or the prior year. This application was denied on April 10, 1969 because it was determined that his condition was not disabling on any date from March 31, 1964 through June 30, 1965, the last day on which he met the insured status requirement. On his request, his claim was reconsidered and, following evaluation of the claim by a physician and state disability examiner, again denied. At the claimant's request a hearing was then held at which he was represented by counsel. The only witnesses were the claimant and his wife, a professional nurse. The Hearing Examiner also received documentary evidence, most significantly hospital records and the reports of three doctors, Dr. Murray, the claimant's personal physician, Dr. W. E. Stevens, a radiologist who treated the plaintiff after October 1966, and Dr. Louis Goodman, a surgical consultant to the Social Security Administration who never examined claimant but reviewed the medical reports. After the Examiner's decision disallowing the claim, plaintiff requested a review by the Appeals Council, which was denied on October 30, 1970. Plaintiff then filed this suit.

The evidence revealed the following undisputed facts. Plaintiff was admitted to a hospital on November 13, 1960 for surgical removal of a tumor which proved to be a malignant lymphosarcoma, Hodgkin's disease. X-ray therapy was administered for some months following discharge. He was again admitted to a hospital on October 2, 1966 for removal of a malignant tumor, after which he was given cobalt treatment by Dr. Stevens. On April 16, 1967 he was again hospitalized, again for removal of a malignant tumor. Finally he was admitted to a different hospital in July 1968 for a thorough two-week examination which again resulted in a diagnosis of lymphosarcoma and a recommendation of radiation therapy.

Dr. Murray, the claimant's personal physician throughout the critical period, submitted two written reports, in one of which he concluded that the claimant has been "totally and completely incompacitated sic from work because of his malignant lymphosarcoma and symptoms referrable thereto since March 1962 until the present time." He noted that:

"The patient was followed clinically after the 1960 operation and for a period of time in 1963 and 1964 a history of pain in the left lower quadrant was evaluated with apprehension."

Pursuant to a request of the Hearing Examiner Dr. Murray also sent a record of the claimant's office visits from December 1960 to August 1964. As early as September 1961 and at several times thereafter, a notation was made of tenderness in the left lower quadrant, where the tumor removed in 1966 was located.

Plaintiff testified at the hearing that up to 1960 he had a large and thriving real estate and mortgage business, that after his 1960 operation things started to go downhill, that he closed his office in 1962 when the lease expired, that he earned no income after that time, that when their savings ran out his wife went back to work in 1964, that he was totally exhausted and unable to work from 1962 to 1965, and that he has not worked since 1962. His wife testified substantially to the same effect.²

The only adverse medical evidence consisted of two medical reports. The first was the report by Dr. Stevens who first examined plaintiff in October 1966 and who filled in the form box for "Date Impairment Prevented Work" with the date "9/28/68". The record made available to us reveals no reason why that particular date was given. The second report is that of Dr. Goodman, the medical consultant, who reviewed the medical evidence as of February 1969, when he filed his report, and concluded that:

"If no further medical evidence can be brought to bear by his treating physicians prior to 1965 to document the presence of pulmonary or abdominal evidence of the lymphosarcoma, then the onset date of a severity of medical impairment to preclude any work activity at some point subsequent to his discharge from the Mercy Hospital on 4-24-67 when the disease was apparently still confined to a few peripheral lymph nodes will stand."

The Hearing Examiner disallowed the claim primarily because he thought that Dr. Murray's specific clinical findings did not substantially support his conclusion of disability, 20 C.F.R. § 404.1526; that the claimant did not supply sufficient evidence that he was not gainfully employed in the relevant period; and because he could not believe claimant's statement that he in effect slept through most of four years. The Appeals Council affirmed the decision after considering "all the evidence" in the record.

All now agree that June 30, 1965 was the last date on which plaintiff met the insured status requirement of § 423(c) (1) (B) (i) which requires social security credits for 20 quarters of work during the 40 quarter period ending in the quarter in which disability is claimed. The only question is whether he established his disability as of that date. The government contends that three pieces of evidence supply the substantial evidence necessary to support the Secretary's finding. First, and claimed at argument to be most compelling, is the claimant's own statement in his first application that he first became incapable of working on October 3, 1966. There was no meaningful examination exploring why plaintiff assigned the date he did to the commencement of his disability. All we know is that he filed his application four days before his...