Davidson v. Gardner

• Decision Date: 07 March 1967
• Docket Number: No. 16541.,16541.
• Citation: 370 F.2d 803
• Parties: Seldon DAVIDSON, 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 803 (1966)

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

No. 16541.

United States Court of Appeals Sixth Circuit.

December 28, 1966.

As Amended March 7, 1967.

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Robert C. McDiarmid, Atty., Dept. of Justice, Washington, D. C., for appellant, John W. Douglas, Asst. Atty. Gen., Alan S. Rosenthal, Atty., Dept. of Justice, Washington, D. C., George I. Cline, U. S. Atty., Lexington, Ky., on brief.

Charles M. Tackett, Lexington, Ky., for appellee, Lester H. Burns, Jr., Manchester, Ky., on brief.

Before O'SULLIVAN and PHILLIPS, Circuit Judges, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

Some explanation is called for when an opinion in a Social Security disability benefit case is as extensive as this opinion, and where, in effect, it stands as the single opinion of one judge out of three, the other two members of the court concurring merely in the result. The main task of the writer of this opinion, it should be frankly said, was to emphasize to the other members of the court that the judgment of the district court should be affirmed. A large portion of the opinion was written to discuss and pass upon a number of able and forceful arguments advanced by counsel for appellant, any one of which, if sustained, would result in reversal. Those arguments, it seemed, were required to be discussed and answered in justice to appellant's counsel. The balance of the opinion is directed to affirmance of the judgment of the district court, based on the unanimous opinions in adjudications of this court and other courts in similar cases, concerning which there is, apparently, no disposition to overrule. Under the circumstances above mentioned, it seemed proper to stress these grounds for our determination.

Appellant Secretary of Health, Education and Welfare seeks review of the order of the district court reversing the decision of the Secretary denying the claim of appellee for disability benefits, and remanding the case for an order granting a period of disability and disability insurance benefits.

Appellee Mr. Davidson is thirty-eight years old. On December 16, 1960, he filed his application for disability benefits. At that time he was thirty-two years old and he claimed that, because of a ruptured disc in his spine, he had become unable to work as the result of an impairment suffered by him on February 15, 1956. In his application, he further showed that he had previously worked only as a manual laborer, and had a sixthgrade education.

There is no question in this case that there is something seriously wrong with appellee. That is agreed to by the Government itself; and it agrees that his condition is such that he can no longer return to the work he has always performed. The question is: What is the matter with him — a question concerning which the Government officials, the Hearing Examiner in two hearings, the Appeals Council, and the witnesses are, in some instances, uncertain. Most of them say he is completely disabled; others consider he should have a surgical operation to see whether there is a possibility that he can be rehabilitated for the labor he has previously performed; and one, who saw appellee only on a single occasion, gives it as his opinion that appellee should undergo psychotherapy and perhaps, vocational rehabilitation in the form of physical therapy, to regain confidence in himself. But they all agree that he can no longer do the only kind of work he ever did in the past.

There were two hearings in this case. After the first decision of the Hearing Examiner, an action was commenced by Mr. Davidson in the district court, which remanded the case for further evidence and findings. After the second hearing, another action was commenced by Mr. Davidson in the district court, which reversed the decision of the Secretary and remanded for entry of an order granting disability benefits.

We shall, hereafter, review in full, the evidence and the merits of this controversy.

To commence our discussion of the case, however, we point out again as we have in so many of these cases in the past, that the Secretary was plainly guilty of reversible error in a number of instances, at the expense and to the disadvantage of appellee, a poor man, and man admittedly disabled from performing, at that time or in the future, any manual labor which was the only kind of work he had ever done.

First, the Hearing Examiner held that: "Ordinarily, the language of a remedial statute like the Social Security Act is construed liberally. However, this is a rule of statutory construction to be applied where the intent of Congress is not clear. * * * Insofar as the disability provisions of the Act are concerned, Congress has made it abundantly clear that it intended the statute to be construed literally," or that there should be a strict construction as far as the disability provisions are concerned. (Emphasis supplied.) Further, the Hearing Examiner held that "Congress expressly rejected a liberal construction of the disability provisions — a fact recognized by many of the courts." (Emphasis supplied.) This is completely erroneous.

In Polly v. Gardner, Secretary, 364 F.2d 969, 974 (C.A.6), in reversing a judgment in favor of the Secretary, this court held:

"In this case, the objective of the Secretary appears to be to secure a strict, as opposed to a liberal, construction of the Social Security Act with regard to disability benefits. In fact, in his decision, the Hearing Examiner stated that `we conclude that Congress intended a strict construction of the disability provisions of the act.\' This is contrary to our view that the statute should be liberally construed in favor of disability; and this view is supported by numerous authorities.

"In Drafts v. Celebrezze, 240 F.Supp. 535, 538 (D.C.E.D.S.C.1965), Judge Hemphill, in reversing the decision of the Secretary and entering a judgment in favor of the applicant, said:

"`The major thrust of the rationale of the Hearing Examiner\'s conclusion is that:

"`it is quite clear from the medical evidence that the claimant does have arthritis of the spine and that it is accompanied by pain and discomfort. From the claimant\'s testimony it is also clear that he requires home therapy in the form of spinal traction. The existence of an impairment in itself is not sufficient to entitle a person to benefits under the Social Security Law. * * *

"`The Hearing Examiner recognizes that the nature of the claimant\'s impairment may possibly preclude him from doing the strenuous type of work required of him as an employee at the quarry, but this does not establish inability to engage in any substantial gainful activity as required by the definition of disability contained in sections 216(i) and 223 of the Act.\'

"`The Hearing Examiner is correct, but he has taken a very restricted view of the term "any", to the point where it appears, from reading the record as a whole that he has considered the employability of the plaintiff as "conceivable" as opposed to being "reasonable" under all the circumstances. Note Hill v. Celebrezze, 233 F.Supp. 298 (E.D.S.C. 1964). The broad purposes of the Act require a liberal construction in favor of disability if same is reasonably made out. Bagwell v. Celebrezze, 232 F.Supp. 989 (W.D.S.C. 1964). The intent is inclusion rather than exclusion. Miles v. Celebrezze, 233 F.Supp. 767, 770-771 (W.D.S.C.1964).\' (Emphasis supplied.)"

"In Smith v. Gardner, 251 F.Supp. 262, 268 (M.D.N.C.1966), Judge Gordon, in reversing the decision of the Secretary and remanding the case with directions to grant disability benefits, said:

"`Thus, the medical evidence, the subjective evidence of disability, the corroborating evidence of the plaintiff\'s spouse, the work history of the plaintiff, and the evidence furnished by her employer all show nemine contradicente that the plaintiff is unable to engage in a substantial gainful activity. Considering the evidence whereon it would have been possible for the Hearing Examiner to have based his decision — there is none.

"`Although the courts are not to interpret the Social Security Act so broadly as to equate it with unemployment compensation, Celebrezze v. Sutton, 8 Cir., 338 F.2d 417, 422 (1964); Richard v. Celebrezze, 247 F.Supp. 183, 185 (D.Minn.1965), the Act is nevertheless to be construed liberally, Bradey v. Ribicoff, 4 Cir., 298 F.2d 855 (1962), cert. den. 370 U.S. 951, 82 S.Ct. 1601, 8 L.Ed.2d 817 (1962), cert. den. sub nom. Heath et al. v. Celebrezze, 372 U.S. 945, 83 S.Ct. 938, 9 L.Ed.2d 970 (1963); Celebrezze v. Bolas, 8 Cir., 316 F.2d 498, 500 (1963); Rodriguez v. Celebrezze, 1 Cir., 349 F.2d 494; DeGracia v. Secretary of Health, Education and Welfare, 248 F.Supp. 522 (D.P.R.1966).\' (Emphasis supplied.)"

It was reversible error for the Secretary to hold that the disability provisions were to be strictly construed to deny disability, rather than to be given a liberal construction in favor of disability.

The Secretary further committed reversible error when he held that the claimant had failed to show by competent medical evidence, coupled with objective findings that he was suffering from an impairment or combination of impairments of such severity so as to preclude claimant from engaging in any substantial gainful activity. The Hearing Examiner stated: "There is no great objective evidence of the disease * * *. From January 18, 1956 until January 23, 1963, it was thought by various physicians that he might have suffered a ruptured intervertebral disc in his lumbar spine. However, there was never any objective evidence of such a diagnosis, the X-rays never proving such a diagnosis. * * * Objectivity in medical reports is required by the regulations of the Social Security Administration. 20 CFR 404.1510." The foregoing regulation states that an alleged impairment is...