Davis v. Califano, 79-1199

• Decision Date: 20 September 1979
• Docket Number: No. 79-1199,79-1199
• Citation: 605 F.2d 1067
• Parties: Jesse C. DAVIS, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1067

605 F.2d 1067

Jesse C. DAVIS, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellee.

No. 79-1199.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 13, 1979.

Decided Sept. 20, 1979.

Alex G. Streett and Dale E. McCoy, Russellville, Ark., on brief for appellant.

Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., W. H. Dillahunty, U. S. Atty., Don N. Curdie, Asst. U. S. Atty., Little Rock, Ark., and Alan M. Grochal, Atty., Dept. of H. E. W., Baltimore, Md., on brief for appellee.

Before HEANEY, STEPHENSON and McMILLIAN, Circuit Judges.

PER CURIAM.

Jesse C. Davis appeals from an order of the district court ¹ affirming a final decision of the Secretary of Health, Education and Welfare denying Davis' application for social security disability insurance benefits. We conclude after review of the record that the decision of the Secretary is not supported by substantial evidence and, therefore, reverse with directions that this matter be remanded to the Secretary for further consideration in light of our opinion.

I. FACTS & PROCEEDINGS BELOW

Davis applied to the Social Security Administration (SSA) for disability insurance benefits on July 2, 1973, stating that he had diabetes, an enlarged heart, hernia and gallstones, and that he had been unable to work because of these disabilities since September 10, 1972. The application was denied both upon initial consideration and after reconsideration. Davis requested and received a hearing before an Administrative Law Judge on February 12, 1975. In a decision dated August 11, 1975, the ALJ determined Davis was not disabled within the meaning of the Social Security Act on the date he was last insured under the Act, December 13, 1973. The decision was affirmed by the Appeals Council on February 9, 1976, and that affirmance operated as a final decision of the Secretary of HEW. Roark v. Califano, 564 F.2d 14, 15 (8th Cir. 1977).

On April 6, 1976, Davis filed this action pursuant to 42 U.S.C. § 405(g) for review of the Secretary's decision. On February 20, 1979, on cross motions for summary judgment, the district court affirmed the Secretary's determination and dismissed the complaint with prejudice. Davis timely filed notice of appeal on March 6, 1979.

A. Evidence of Disability

Davis was born February 16, 1919, and has a fifth grade education. At the time he first applied for benefits in 1973, he was fifty-four years old and lived with his wife and four minor children, then ranging in age from six to thirteen. His primary employment has been as a migratory farm laborer, picking and boxing fruit. This job required him to lift fifty-pound sacks and boxes and carry them short distances. He worked for a brief period in 1969-70 as a maintenance man. From March 1970 to September 1972, he was employed at the Atkins, Arkansas city dump. His job was to watch the dump and to tell people where to dump their trash, for which he was paid $15.00 per week. ² At some time he constructed a shack and helped his wife operate a small second-hand shop, selling junk he brought home from the dump. This activity was apparently negligible, earning them less than $400 in any year, and had ceased completely several months before the hearing.

On his applications for benefits and at the hearing before the ALJ, Davis stated that he suffered from diabetes, an enlarged heart, hernia, gallstones, hypertension, blackouts and dizzy spells, shortness of breath and smothering spells, chest pain, rapid heartbeats and skipping heartbeats, a nervous condition, allergy, headaches, and swelling feet. He brought to the hearing twelve different medications he was taking and testified he had been under the care of Dr. Buchanan since 1972. Davis stated he was forced to give up the job at the dump because the fumes from the burning made him sick and because he was having blackout spells which he attributed to his diabetes. He also stated that when he tried to work he would vomit when he stooped over, that he was having shortness of breath and chest and heart pains, and that he just "wasn't able to do anything without giving out." He stated he did not drive because he feared he would faint. He stated he obtained a medical discharge from the Army in 1945 because of a "nervous heart" and that he had had "spells" of heart trouble about twenty years previously, ten years previously and around 1966. He stated he had not felt very well for about ten years.

Davis was the only witness at the hearing. There was no vocational evidence. Medical reports from four physicians were received in evidence. Dr. Franklin examined Davis on September 21, 1973, and had another physician administer and interpret an electrocardiograph. Dr. Franklin reported, Inter alia, that Davis had a regular heartbeat without murmurs, full range of motion in all joints, a normal EKG, and no gross abnormality in pulmonary capacity. His diagnosis was possible seizure disorder versus psychoneuroses; diabetes mellitus by history; hypertension. He reported he could find no signs of diabetic retinopathy and could detect no anginal history. He stated he could find no organic reason for a lot of Davis' complaints and felt that most of his problem might simply be anxiety neuroses.

Dr. Buchanan first examined Davis in October 1972, and thereafter treated him on a regular basis. On July 24, 1973, in a telephone contact with the SSA, Dr. Buchanan reported that Davis had angina, chest pain, premature ventricular contractions with tachycardia, adult onset diabetes in good control and also emphysema and exogenous obesity. ³ He noted no signs of neuropathy or retinopathy. In a report dated August 27, 1974, Dr. Buchanan made the following diagnosis: hypertension diastolic persistently 100 or higher; maturity onset diabetes; exogenous obesity moderately severe; chronic anxiety and nervousness; angina pectoris clinically present; chronic complaints of weakness and fatigue; dependent edema with swelling of the ankles. In a report dated February 7, 1975, Dr. Buchanan diagnosed Davis as suffering from maturity onset diabetes; essential hypertension, poor control; exogenous obesity; generalized osteoarthritis, moderate to severe; and angina pectoris from arteriosclerotic heart disease. Dr. Buchanan reported that the osteoarthritis was most severe in the neck, shoulders, lumbar back region and hips, resulting in limited flexion and extension of the neck, decreased flexion of the hips, and decreased function of the upper extremities. In this report Dr. Buchanan expressed his opinion that Davis' disabilities were severe enough to prevent him from engaging in any gainful employment.

Dr. Pennington examined Davis in July and August of 1974. His diagnosis was hypertension; diabetes mellitus; moderate obesity; nervousness and anxiety; angina pectoris; edema of the lower extremities; fatigue and weakness.

Dr. Tolbert examined Davis on April 16, 1975, at the request of the ALJ after the hearing. His diagnosis was hypertension, controlled on medication; tachycardia with no evidence of other cardiac disease but a history of cardiac irregularity; cardiac neurosis, severe; diabetes mellitus, questionable control, no complications; exogenous obesity. Dr. Tolbert indicated that Davis probably had a chronic hyperventilation syndrome associated with his anxiety and that his tachycardia might also be caused by anxiety.

Also received in evidence was a report from the Millard-Henry Clinic including an electrocardiograph made in 1966 and a chart showing Davis' contacts with the clinic in 1966-67. The chart indicates Davis complained of chest pain and irregular heartbeat and obtained medication for these in 1966 and 1967.

B. Decision of the ALJ

The ALJ concluded Davis was last insured for disability purposes on December 31, 1973. After summarizing the medical evidence, the ALJ concluded that Dr. Franklin's examination of September 1973 "best represents the true physical condition of the claimant as it existed at the time he was last insured for disability purposes." The ALJ analyzed Dr. Franklin's report as follows:

The doctor made four pertinent findings. The hypertension and diabetes are controlled by medication. He made a finding of a possible seizure disorder versus a psychoneurosis. If a disorder of this type exists then it has existed for many years as evidenced by the fact that the claimant was discharged from military service because of a nervous heart. Since that time, he has engaged in many types of gainful activity and it, therefore, must be concluded that any seizure disorder has not been of sufficient magnitude to keep him from performing certain types of work. The fourth problem mentioned by the internal specialist was anxiety neurosis. There is no showing in the record that this "anxiety neurosis" is of such magnitude as to prevent the claimant from engaging in work activity. It appears this problem has not been of sufficient nature to cause the claimant to seek much medical attention and that the office record of the treating general practitioner is part of the record and shows four visits in 1966 and 1967. It is noted the physician states he has been seeing the claimant on an every two or three week basis since 1972. But, in any event, it appears at the time the claimant was last insured that work activity and medication would have been the best thing for the anxiety reaction.

The ALJ then concluded that Davis "was not disabled, as that term is defined in the Act on the date he was last insured."

C. Decision of the District Court

The district court concluded that the agency decision was supported by substantial evidence. The court specifically mentioned Davis' testimony that his chest pain could be readily alleviated by nitroglycerin, and the evidence that Davis had obtained medication for irregular heartbeat as early as 1966 yet had engaged in substantial gainful employment from 1969-72...