Camp v. Schweiker, 79-2076

• Decision Date: 17 March 1981
• Docket Number: No. 79-2076,79-2076
• Citation: 643 F.2d 1325
• Parties: Donald L. CAMP, Appellant, v. Richard SCHWEIKER (Successor to Patricia Harris), Secretary of Department of Health and Human Services, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1325

643 F.2d 1325

Donald L. CAMP, Appellant, v. Richard SCHWEIKER (Successor to Patricia Harris), Secretary of Department of Health and Human Services, Appellee.

No. 79-2076.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 10, 1980.

Decided March 17, 1981.

Art Dodrill, Attorney at Law, Little Rock, Ark., for appellant.

Alice Daniel, Asst. Atty. Gen., Washington, D.C. George W. Proctor, U. S. Atty., A. Doug Chavis, Asst. U. S. Atty., Little Rock, Ark. Alan M. Grochal, Atty., Dept. of Health, Education and Welfare, Baltimore, Md., for appellee.

Before HENLEY and McMILLIAN, Circuit Judges, and BECKER, ^* Senior District Judge.

WILLIAM H. BECKER, Senior District Judge.

Plaintiff-appellant Donald L. Camp (Camp) appeals from a judgment of the district court affirming the final decision of the Secretary of Health and Human Services (Secretary) ¹ denying Camp disability insurance benefits and supplemental security income (SSI) benefits, based on alleged disability. Because we conclude that the decision of the Secretary was not based upon substantial evidence supporting the burden of proof imposed by law on the Secretary, the decision of the district court will be reversed and remanded with directions to remand the cause to the Secretary for further proceedings.

I.

On January 26, 1977, appellant Camp applied for disability insurance benefits and supplemental security income benefits based on alleged disability, beginning October 15, 1975 because of conditions affecting his back, legs, feet and arm. (Transcript of administrative proceedings, hereinafter Tr., at 72, 76.) The application of Camp for benefits was denied initially on March 17, 1977, and after reconsideration, on June 6, 1977. (Tr. at 80, 83.)

A hearing on notice before an administrative law judge was held on March 1, 1978, at which Camp appeared personally and with his attorney. (Tr. at 16, 20.)

At the hearing before the administrative law judge (ALJ) (Tr. at 25-56), Camp testified as follows: that he was 32 years of age, 6 feet 31/2 inches tall and weighed 230 pounds (Tr. at 25); that he completed 9 grades of school (Tr. at 26); that he quit school because he couldn't get along with the teachers and "couldn't learn nothing" (Tr. at 26); that his mathematical ability is fair; that he can't divide, but that he can make change (Tr. at 66); that he can't make out (read) some words; that his writing ability is below average (Tr. at 27); that he is married and has three children living with him (Tr. at 28); that he has not been able to work since October 15, 1975, and relies on food stamps and his wife's wages from working for support of him and his family (Tr. 28, 29); that he tried to work as a self-employed tile setter in 1976, but did not make much money because he couldn't do anything or lift anything (Tr. at 28); that when he drives a car his leg gives out and his wife has done most of the driving for the past two or three years (Tr. at 29, 30); that on a typical day he gets up in the morning if he can, watches television, tries to do a little exercise on the doctor's advice, hurts after two or three minutes, then lies down in bed and works his legs (Tr. at 30-31); that he lies down to rest when hurting a lot, takes medicine (pills and aspirin); "fools around the house" and has to sit down again, but doesn't clean the house or make up his bed; that his wife does that and his mother and father come by and help with the house cleaning (Tr. at 31); that he tried to work in the yard setting a fire his wife had to put out; that he can't pick up except once in a while, then he gets to hurting; that he can't pick up his kids (Tr. at 32); that his wife makes up the bed before she goes to work, washes clothes and stuff like that (Tr. at 32); that he usually makes a sandwich for lunch and tries to cook supper by putting on a pot of beans, cooks pork chops or something like that (Tr. at 32); that he reads the paper, watches television quite a bit, and when home babysits the kids, and listens to the radio (Tr. at 33); that he likes to fish but can't anymore because he can't hold the fishing pole but likes to go with his wife (Tr. at 33); that he doesn't belong to any clubs or attend meetings (Tr. at 34); that on his doctor's advice, he tries to walk outside a quarter of a mile when its pretty, but sometimes can't (Tr. at 34); that in the past he worked on a pipeline off and on since 1965 (Tr. at 34), but it was awful heavy work and he hurt his back in 1965 or 1966 (Tr. at 35); that he ran heavy equipment on the pipeline, oiled and lifted and the like, operated a bulldozer, ran a tack rig with a welding machine for the welders, hustled heavy oak 6 X 6 skids, 4 feet long (Tr. at 35), and in 1965 or 1966 hurt his back doing that (Tr. at 36); that in 1974 he was unemployed; that in 1976, made $1,351 as a tile setter (Tr. at 38), with hired help and his wife's help, work he learned to do in 1962 and 1963 (Tr. at 38); that when he had to lift cement or carry tile he hired help to do it or had his wife's help (Tr. at 38); that he bid on the tile setting jobs as a subcontractor but became unable to continue that work (Tr. at 39); that he lost money and moved back to his home in Perryville (Tr. at 39); that he can't bid or do any more tile setting jobs but would love to, but loses money when he doesn't work and hires others (Tr. at 40); that he believes he has an arthritic condition which affects him in his elbows, ankles, back and left chest; that he was taken to the hospital a while back with big knots on his elbows (Tr. at 40); that he can't straighten his elbows, his hands draw on him all the time (Tr. at 41); that the knot in his (right) elbow is hard, becomes soft and sometimes goes away and comes back in the area of the fourth lumbar vertebrae (located by the ALJ) (Tr. at 41); that it has gotten worse in the last 6 or 7 months and usually a big knot comes on the elbow of his left arm too and hurts like a heart attack and stays sore (Tr. at 41-42); that his right elbow has chipped bone in it from a broken arm in 1974 (Tr. at 42); (that his right knee gives him a lot of trouble, from a motorcycle wreck, Mrs. Camp interjected under oath (Tr. at 43)); that he takes two ascriptin every 4 hours, prescribed by Dr. Dornenberg for rheumatoid arthritis and 1 or 2 darvon a day prescribed by Dr. Hyatt (Tr. at 43-44); that his most comfortable position is lying down in an upholstered chair with his legs elevated, but when hurting lying down is best (Tr. at 44) on his back on a firm mattress (Tr. at 45); that because of his back he can't bend and can hardly stoop, and must squat to pick up something from the floor (Tr. at 45); that he consults Dr. Dornenberg for his arthritic condition (Tr. at 46); that he saw Dr. Dornenberg 4 or 5 times and Dr. Hyatt 7 or 8 times (Tr. at 47); that he tries to walk 1/4 mile a day and has trouble first with his ankles and feet (Tr. at 48); that he is uncomfortable after sitting about 45 minutes and would like to scoot up and lay in a chair (Tr. at 48); that he couldn't sit in a chair or at a bench in the same position and work with his hands without lifting for 2 hours (Tr. at 48-49); that he could stand probably 20 or 30 minutes (Tr. at 49); that to squat down and get up he has to pull on something (Tr. at 49); that he uses a walking stick to walk and has fallen walking, and fell 2 months ago out the back door (Tr. at 49); because his knee gave way and that he has trouble all the time with his legs going to sleep (Tr. at 50); that he can't pick up over 5 pounds (Tr. at 50); that he doesn't try to pick up or carry for any distance (Tr. at 51); that his ability to grip any time of the day is bad because his hands draw up and become numb although he exercises his grip with "silly putty" on advice of Dr. Dornenberg (Tr. at 52); that the leaders in his wrist feel like they are trying to pull his fingers in to his arm (Tr. at 52-53); that they draw an hour or two at the time and he exercises them and gets in a tub of hot water (Tr. at 54); that reaching overhead causes discomfort in his elbow and left shoulder (Tr. at 54); that his condition is surely no better than in October 1975 and he has become more limited in what he can do since then and could do better 6 months ago (Tr. at 54-55); that his condition is much worse than in 1976 when he did a little tilesetting (Tr. at 56); that he could not set tile now (Tr. at 56).

From personal observation, claimant's wife Mrs. Shirley Rose Camp (Tr. at 57-62) corroborated the testimony of her husband Mr. Camp about her employment, her work, care, and assistance to Mr. Camp in driving the car, in his work in setting tile, his and her income, and the assistance of Mr. Camp's father and mother with the housework.

Written medical reports from Benjamin Hyatt, M.D., a general practitioner, Peter R. Dornenberg, M.D., an orthopedic surgeon, and John M. Hundley, M.D., an orthopedist, were admitted into evidence at the hearing.

Dr. Hyatt reported that he had last examined Camp in January 1977; that Camp had complained of back troubles; that no physical limitation of the back was noted in physical examination; that no objective findings substantiated any alleged back trouble, that Camp lacked five to ten degrees of the extension of his right elbow; and that Camp should avoid crawling because of chronic dermatosis of his right knee. (Tr. at 106.)

Dr. Dornenberg reported that he examined Camp on May 3, 1977, and that Camp has a 2k lumbro-sacral area tenderness, a lack of about 25 degrees of complete extension and a lack of perhaps 15 degrees of complete flexion of the right elbow, some narrowing of the L5-S1 disc space, and concluded that Camp "is having a generalized synovitic flare-up compatible with rheumatoid disease" and would require surgery in the foreseeable future on his feet and perhaps on his right elbow. (Tr. at 107.)

Dr. Hundley reported that he examined Camp in ...