Campbell v. Gardner, 16320.

• Decision Date: 16 January 1967
• Docket Number: No. 16320.,16320.
• Citation: 370 F.2d 921
• Parties: Pole CAMPBELL, Plaintiff-Appellee, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

370 F.2d 921 (1967)

Pole CAMPBELL, Plaintiff-Appellee, v.John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellant.

No. 16320.

United States Court of Appeals Sixth Circuit.

January 16, 1967.

Florence Wagman Roisman, Dept. of Justice, Washington, D. C., (John W. Douglas, Asst. Atty. Gen., Sherman L. Cohn, Atty., Dept. of Justice, Washington, D. C., George I. Cline, U. S. Atty., Lexington, Ky., on the brief), for appellant.

Alva A. Hollon, Hazard, Ky., for appellee.

Before PHILLIPS, Circuit Judge; CECIL, Senior Circuit Judge, and KENT, District Judge.^*

KENT, District Judge.

Pole Campbell filed his application for disability benefits under the Social Security Act, Title 42, U.S.C.A. Section 423.After a hearing the Hearing Examiner denied applicant any period of disability or disability insurance benefits, which was affirmed by the Appeals Council.Thereafter, and by order entered May 23, 1963, the District Court remanded the case to the Secretary for further administrative action.The matter was referred to a hearing examiner for additional testimony, which was taken, and on August 14, 1963, the hearing examiner denied benefits to the appellee.Thereafter, by a decision of the Appeals Council, entered on September 30, 1963, the decision of the hearing examiner was adopted as the decision of the Appeals Council.

From the denial of the benefits the appellee filed an action in the United States District Court for the Eastern District of Kentucky, against the Secretary of Health, Education and Welfare, pursuant to 42 U.S.C.A. § 405(g).

It appears from the record that Pole Campbell was born July 10, 1917.He has a seventh grade education without any formal vocational training.He was 46 years of age at the time the final order of the Department was entered.He started to work in the coal mines at the age of 17, and continued such work until 1960.Campbell claims that he terminated his employment at the coal mine because of his disability.However, the employment terminated at the time the mine was shut down (temporarily), and in a discussion with a Social Security representative, a physician stated:

"If the mine had not closed he would have continued working and would have been working today."Tr. 263/264.

The Social Security representative reported that the doctor stated that the individual is not physically disabled.The doctor stated: "Claimant got the Social Security benefits in his mind when he filed his claim and since then his only goal is to get the benefits."

The record shows that the appellee has had many and varied medical contacts since he was laid off at the mine.It appears that no purpose would be served by a detailed résumé of the medical testimony.Some doctors stated that the applicant was totally disabled, others stated that he was able to work after he was deprived of certain medication, the addiction to which was having an adverse effect upon his health.

A vocational consultant testified that there were jobs existing in the economy of Eastern Kentucky which could be performed by this applicant.Admittedly, the applicant has made no effort to obtain employment and has failed or refused to accept the services of the Kentucky State Rehabilitation Service.The medical testimony would permit the hearing examiner to reach almost any conclusion.However, this court has previously stated in Justice v. Gardner, 360 F.2d 998, 1002, (6th Cir.1966):

"It is not the burden of the Secretary to make an initial

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