Butler v. Flemming

• Citation: 288 F.2d 591
• Decision Date: 05 April 1961
• Docket Number: No. 18587.,18587.
• Parties: Edward S. BUTLER v. Arthur S. FLEMMING, Secretary of Department of Health, Education and Welfare.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

288 F.2d 591 (1961)

Edward S. BUTLER v. Arthur S. FLEMMING, Secretary of Department of Health, Education and Welfare.

No. 18587.

United States Court of Appeals Fifth Circuit.

April 5, 1961.

Enoch G. Fletcher, Grand Saline, Tex., for appellant.

Paul N. Brown, U. S. Atty., Tyler, Tex., for appellee.

Before JONES and BROWN, Circuit Judges, and CARSWELL, District Judge.

JOHN R. BROWN, Circuit Judge.

The question here is whether the District Court was correct in holding that there was substantial evidence to support the administrative finding that the Claimant was not totally disabled under the disability freeze provisions of the Social Security Act, 42 U.S.C.A. §§ 416 (i), 423. At every turn the claim was rejected. As permitted under § 205(g), the Claimant sought review of the adverse decision of the Referee which became final on the formal denial by the Appeals Council of the Claimant's Request for Review.

As near as we can discern the Referee's decision, rejection of the claim of disability rested on a combination of several factors. First, the Claimant was ambulatory and not bedridden. Second, he had in prior years earned a considerable amount in self-employment in the operation of one of the two domino parlors in his small Texas city. Third, no doctor had stated that he was positively unable to do any work whatsoever. Finally, the employee must not be totally disabled since he showed great resourcefulness in setting up this small business when he could not obtain employment.

A proper analysis of this record compels, we believe, two conclusions. First, the evidence is really all one way. There is no real dispute. Second, it demonstrates positively that the Claimant is totally disabled within the meaning of the statute.

The Claimant is 55 years of age with but a limited fourth-grade schooling. Previously he had engaged in general heavy labor. In 1943, he sustained a severe injury to his back resulting in "pinched nerve roots and nervousness" as one doctor described it. In 1953 while working for a construction company he again fell and hurt his back. Examination and X-rays demonstrated in 1953 that he had "marked changes in the area of the lumbar spine, with a solid fusion between L 2 and 3 * * *" and "* * multiple bony changes above and below these vertebrae." This caused "pressure on the nerve roots as they emerge from the spinal canal." For that injury he was abed for six months, on crutches for another five, and during much of this time his back and legs were paralyzed at least in the sense of his not being able to move them. As a consequence of the cumulative effect of the last injury on his actual pre-existing condition, he suffered a nervous breakdown in 1954. After that time he was unable to return to any heavy jobs.

All of this was confirmed by the medical consultant called in by the Agency to make an impartial study and report to it through the Vocational Rehabilitation Division of the Texas Educational Agency. The doctor who treated him after the 1953 injury and examined him again in 1959 compared the examination and X-rays of 1959 with those of 1953. This comparison showed "that the 2nd and 3rd lumbar vertebrae are still solid. There are marked bony changes noted * * * in fact they have increased over that seen in 1953." The impartial consultant agreed. Concerning this, he reported "unusual changes involving the first and second lumbar vertebrae. These are fused together, and there is some posterior displacement of L1 on L2. There is a total obliteration of the adjacent surfaces of the vertebrae and gives the deduction that some inflammatory process has destroyed the intervertebral discs and adjacent surfaces so that they are fused."

After the 1954 nervous collapse, the Claimant thereafter engaged in no gainful activity save the management and operation of his domino parlor. While it has a beguiling impressiveness to state, as does the Government in its brief, that this was substantial since the income from it aggregated $7,236.53, it amounted to very little on an annual basis.¹ But that does not really matter since it was uncontradicted that in 1958 the pains in his leg and back made performance of even these light managerial and housekeeping tasks unbearable. His earnings for 1958, the critical year, were but $800, see note 1, supra, an amount below the Department's internal administrative policy determination of "substantial gainful activity."²

Apart from any administrative minimum, this was neither substantial nor was he able to do this work. Repeated many times but never challenged were the Claimant's positive statements. "I have been running a domino parlor, not because I was able but because I had to. Sometimes my back hurt so badly and I get so nervous that I can bearly stand it." Again he said, "I have been running the domino parlor while in great pain with my back and under great nervous tension. I have done this — not because I was able but because I had to." In answer to a specific departmental inquiry of September 15, 1958, he replied across the bottom of the letter, "I had to quit the domino parlor and am unemployed now. I am in such shape that I can't do any manual labor. I have made about $400 this year * * *." When he could no longer even undertake those simple tasks, he sold this business — presumably dominoes, table and all — for $250.

This medical history and diagnosis was uncontradicted as was the evidence concerning the Claimant's pain and his actual inability to carry on any work. The Referee apparently thought, however, that this had to be measured against a stringent congressional policy requiring exacting proof from all such claimants. When so done, he reasoned that since inability to work is largely a medical question, the medical evidence, though portraying a man in awful shape, was inadequate. It was inadequate because it did not declare that the Claimant was unfit for every conceivable kind of job.

There are two fundamental errors in this. One is a mistaken view of a legal standard, or at any rate its application. The other is a mistake in the evaluation of this uncontradicted medical evidence.³

Of the three doctors who made reports, not one of them asserted the professional opinion that the Claimant was able to work. Dr. Garland, a local physician who knew him best, had long treated him and had seen him undergo the 1954 nervous breakdown. He prefaced his conclusion in this way. "Each time after the two 1943 and 1953 injuries, when he starts to work, his back and leg gives so much pain and distress it puts him to bed." He then declared that in "my opinion" the Claimant "is unable to do hard work, and will probably never be able to do anything that will require him to strain, lift or do any excessive amount of walking." Dr. Knight, an orthopedic surgeon of Dallas who had treated him after the 1953 injuries, introduced his medical opinion by this unrefuted fact. The Claimant's "history since 1953 reveals that he has worked only in a pool hall but this has been with difficulty. He has had pain in the back and legs, especially the right which at times gives way on him. He can be walking along and will almost fall." His final and formal medical opinion pictured a man unable to work with safety either to himself or his fellow workers. "It is my opinion that Claimant is unable to do hard work, perhaps nothing more than night watchman's job or something similar. If it continues...