Celebrezze v. Bolas

• Decision Date: 29 April 1963
• Docket Number: No. 17176.,17176.
• Citation: 316 F.2d 498
• Parties: Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Appellant, v. Herbert E. BOLAS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

316 F.2d 498 (1963)

Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Appellant, v. Herbert E. BOLAS, Appellee.

No. 17176.

United States Court of Appeals Eighth Circuit.

April 29, 1963.

Terence N. Doyle, Atty., Dept. of Justice, Washington, D. C., for appellant; Joseph D. Guilfoyle, Acting Asst. Atty. Gen., Washington, D. C., Theodore L. Richling, U. S. Atty., Omaha, Neb., Alan S. Rosenthal and Harvey M. Goldberg, Attys., Dept. of Justice, Washington, D. C., on the brief.

Samuel V. Cooper, Omaha, Neb., for appellee; Jack W. Marer, Omaha, Neb., with him on the brief.

Before SANBORN and BLACKMUN, Circuit Judges, and STEPHENSON, District Judge.

BLACKMUN, Circuit Judge.

Herbert E. Bolas, pursuant to § 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), instituted this action for review of the Secretary's final decision disallowing Bolas' claim for a period of disability under § 216(i), as amended, of the Act, 42 U.S.C.A. § 416(i). The district court granted the claimant's motion for summary judgment and thereby reversed the Secretary's decision. The Secretary has appealed.

Bolas filed his application to establish a period of disability on July 20, 1955. In this he stated that he was born in 1899; that he became unable to engage in substantial work on April 23, 1953; that he had been employed by Metropolitan Life Insurance Company from 1928 to April 1953 as a "Trained Insurance Salesman, Collecting premiums and Selling insurance"; that he was receiving disability benefits from the Metropolitan; that he had had ten medical examinations since disability began; that, as to his daily activities, he "Can Walk, Can drive Car, Has dizzy spells and does very little around house"; that his illness prevented him from working because he "Can't sit up long, or stay up very long"; that he did not wish a referral to vocational rehabilitation; that his earnings, since April 23, 1953, were renewals; that "I have done no work since that date"; and that the nature of his illness was arthritis of the spine which rendered him "unable to remain out of bed except for short periods of time" and "unable to remain standing or sitting for long periods".

Prolonged but obviously careful and considerate administrative action followed. The Bureau of Old Age & Survivors Insurance first disallowed Bolas' claim on the ground that "your impairment has not been severe enough to prevent you from doing some kind of gainful work". Upon reconsideration the claim was again disallowed. At Bolas' request a field hearing took place in Omaha in August 1957. The referee held that Bolas was not entitled to the disability period. The Appeals Council denied review. Attorneys were then retained and this court action was instituted. The matter was remanded pursuant to § 205(g) for further administrative action. The Council vacated its denial of review. Evidence from the files of the Metropolitan was obtained. A supplemental hearing was held in Omaha. The Appeals Council determined that still further medical evidence was necessary. Bolas was examined at government expense by three physicians who submitted written reports. Again the matter was referred to the referee so that oral testimony could be elicited from the physicians.

Finally the Appeals Council on September 9, 1960, issued a lengthy and comprehensive decision. It reached the following conclusion:

"The Appeals Council agrees that the claimant has certain impairments similar to those of other persons his age that are the result of the natural aging process, no more and no less, but finds that such impairments either singly or in combination, are not of the type that preclude him either from engaging in his usual work or from engaging in any kind of substantial gainful activity."

This reference is obviously directed to the definition of "disability" in § 216(i) (1), as amended, 42 U.S.C.A. § 416(i) (1):

"The term `disability\' means * * inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration * * *."

It is this ruling of the Appeals Council which was the "final decision of the Secretary", Cody v. Ribicoff, 8 Cir., 1961, 289 F.2d 394, 395, which was reversed by the district court and which now reaches us on appeal almost eight years and four Secretaries after the claimant's application was filed.

Both sides stress the applicable legal standards. There is no real dispute as to these:

1. Bolas, technically, has the burden of establishing his claim. Kerner v. Flemming, 2 Cir., 1960, 283 F.2d 916, 921; Poage v. Ribicoff, E.D.Mo., 1962, 205 F.Supp. 938, 939; Blanscet v. Ribicoff, W.D.Ark., 1962, 201 F.Supp. 257, 260.

2. The Act is remedial and is to be construed liberally. Kohrs v. Flemming, 8 Cir., 1959, 272 F.2d 731, 736.

3. The Secretary's findings of fact and the reasonable inferences drawn from them are conclusive if they are supported by substantial evidence. The statute, § 205(g), 42 U.S.C.A. § 405(g), is specific. This is the limitation of judicial review of the Secretary's decision. Hoffman v. Ribicoff, 8 Cir., 1962, 305 F.2d 1, 6; Cody v. Ribicoff, supra, p. 395 of 289 F.2d.

4. "Substantial evidence is more than a mere scintilla * * *." It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and it must be based on the record as a whole. National Labor Relations Board v. Columbian Enameling & Stamping Co., 1939, 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660; Universal Camera Corp. v. N.L.R.B., 1951, 340 U.S. 474, 487-488, 71 S.Ct. 456, 95 L.Ed. 456.

5. It has been said that our posture in reviewing this appeal from the district court is not limited to a mere determination of whether that court misapprehended or misapplied the substantial evidence test (as the Supreme Court, in Universal Camera, p. 491 of 340 U.S., p. 466 of 71 S.Ct., 95 L.Ed. 456, places itself when considering a court of appeals' review of agency findings) but is, instead, no different than that of the district court in reviewing the Secretary's findings. Edgerly v. Ribicoff, 5 Cir., 1962, 311 F.2d 645, 646; Ward v. Celebrezze, 5 Cir., 1962, 311 F.2d 115, 116; Roberson v. Ribicoff, 6 Cir., 1962, 299 F.2d 761, 763.

6. The determination of the presence of substantial evidence is to be made on a case-to-case basis. Celebrezze v. Wifstad, 8 Cir., 1963, 314 F.2d 208, 210; Hoffman v. Ribicoff, supra, p. 9 of 305 F.2d.

7. "Where the evidence was in conflict, or subject to conflicting inferences, it is for the Appeals Council on behalf of the Secretary to resolve such conflicts." Gotshaw v. Ribicoff, 4 Cir., 1962, 307 F.2d 840, 845; Snyder v. Ribicoff, 4 Cir., 1962, 307 F.2d 518, 520; Tircuit v. Ribicoff, S.D.Tex., 1961, 199 F.Supp. 13, 15.

8. The statutory definition of disability imposes the three-fold requirement (a) 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"; (b) that there be an "inability to engage in any substantial gainful activity"; and (c) that the inability be "by reason of" the impairment. Pollak v. Ribicoff, 2 Cir., 1962, 300 F.2d 674, 677.

9. "Substantial gainful activity" has been described:

"The activity in which a disabled claimant can be found to be able to engage must be both substantial and gainful and within his capacity and capability, realistically judged by his education, training and experience." Ribicoff v. Hughes, 8 Cir., 1961, 295 F.2d 833, 837.

"Such a determination requires resolution of two issues — what can applicant do, and what employment opportunities are there for a man who can do only what applicant can do? Mere theoretical ability to engage in substantial gainful activity is not enough if no reasonable opportunity for this is available." Kerner v. Flemming, supra, p. 921 of 283 F.2d.

10. The emphasis is directed not to the average man but to the particular claimant's capabilities. Ellerman v. Flemming, W.D.Mo., 1960, 188 F.Supp. 521, 526.

11. The word "any" in the statute "must be read in the light of what is reasonably possible, not of what is conceivable." Klimaszewski v. Flemming, E.D.Pa., 1959, 176 F.Supp. 927, 932; Kohrs v. Flemming, supra, p. 736 of 272 F.2d. See also Jarvis v. Ribicoff, 6 Cir., 1963, 312 F.2d 707, and Hodgson v. Celebrezze, 3 Cir., 1963, 312 F.2d 260.

The claimant argues that, although the district court noted there was some evidence opposing his position, this evidence is not substantial; that he was a steady, ambitious and successful life insurance employee; that insurance companies do not give money away; that his disability status with the Metropolitan was effected before the passage of the social security freeze provisions and thus forecast a consequent disadvantage under the Act; that the Metropolitan's acceptance of his disability status is highly significant, citing Jacobson v. Folsom, S.D.N.Y., 1957, 158 F.Supp. 281, 287, because that insurer's standards are as strict as those of the Act; that the family doctor is the one who best knows the patient; that the three specialists supplied by the government proffered only opinion evidence and did so under circumstances where their testimony was expected to be unfavorable; that they saw the claimant for only a short time; that the Secretary concedes that the claimant has pain; that its presence, in any event, cannot be disproved; and that there is no employer who would hire him.

This takes us to a consideration of the evidence. We usually refrain from making a detailed review of the evidence in cases which are primarily factual. We do so here, however, because of the increasing incidence of this type of case, because this claimant insists that the opposing testimony is not substantial, and because the district court concluded that the decision of the Appeals...