DePaepe v. Richardson, No. 71-1706.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtDYER, Circuit , SKELTON, , and INGRAHAM, Circuit
PartiesThomas E. DePAEPE, Sr., Plaintiff-Appellant, v. Elliot L. RICHARDSON, Secretary, Health, Education and Welfare, Defendant-Appellee.
Docket NumberNo. 71-1706.
Decision Date14 July 1972

464 F.2d 92 (1972)

Thomas E. DePAEPE, Sr., Plaintiff-Appellant,
v.
Elliot L. RICHARDSON, Secretary, Health, Education and Welfare, Defendant-Appellee.

No. 71-1706.

United States Court of Appeals, Fifth Circuit.

July 14, 1972.


464 F.2d 93

Walter D. Snider, Evans J. Karpenko, Hurst, Tex., for plaintiff-appellant.

Eldon B. Mahon, U. S. Atty., William L. Johnson, Jr., Asst. U. S. Atty., Fort Worth, Tex., for defendant-appellee.

Before DYER, Circuit Judge, SKELTON, Judge,* and INGRAHAM, Circuit Judge.

SKELTON, Judge:

This is an appeal by Thomas E. DePaepe, Sr., from a decision of the United States District Court for the Northern District of Texas, affirming the decision of the Secretary of Health, Education, and Welfare, denying appellant's claim for disability benefits under Sections 216 and 223 of the Social Security Act, 42 U.S.C. §§ 416, 423. The Secretary's decision affirmed a decision of a hearing examiner, made after a hearing in which appellant participated in person and by counsel. The decision of the examiner became the decision of the Secretary.

We reverse the judgment because the hearing examiner's decision is not supported by substantial evidence, and for other reasons set forth below.

The appellant was wounded in Korea in 1950 while serving in the United States Army. He was hit in the head and both arms and back and neck by shrapnel at that time. His injuries included a fracture at the base of his skull (right parietal-occipital region), a compound fracture of the right upper arm, and shell fragment penetrations in the left shoulder and upper arm. He had to undergo two operations for debridement of the skull wound. He suffered from a bone infection, and was required to have plastic surgery on the skull (cranioplasty of the right parietal bone) in October of 1951. These operations resulted in several metallic sutures and three metallic clips remaining in the skull. Also, a number of small metallic foreign bodies remained in the right shoulder. These and other injuries will be shown in more detail below. Appellant's army service terminated in 1957.

The appellant began to have dizzy spells, severe headaches and periods of blackout in 1961 which continued to 1967 and subsequent to that date. He had partial paralysis of his left leg, was exceedingly nervous, and had to take sodium dilantin and phenobarbital daily. These injuries and resulting pain, nervousness, mental anxiety, dizzy and blackout spells made it impossible for him to obtain and retain gainful employment that he was capable of performing.

In 1964, appellant filed a claim for disability insurance benefits under the Social Security Act for disability beginning November 10, 1964, stating that the disability was due to a head injury and residuals of shrapnel wounds in arms and legs. This claim was denied and appellant did not appeal. That claim is not involved here.

The present claim was filed on March 15, 1967, in which appellant stated he became disabled on November 7, 1964, due to a head injury. The claim was denied and judgment entered for the Secretary, as stated above, after the hearing examiner rendered a decision that appellant

464 F.2d 94
was not under a disability as defined in the Act, starting on or before December 31, 1965, when he last had the necessary disability insured status

The burden was on the appellant to establish that he was disabled within the meaning of the Act prior to December 31, 1965, the date he last met the insured status requirements of the Act. Dillingham v. Cohen, 5 Cir. 1968, 403 F.2d 213; and Seals v. Gardner, 5 Cir. 1966, 356 F.2d 503.

Section 223 of the Social Security Act (42 U.S.C. § 423 (1970)), defines disability as follows:

(d) Same; disability.
(1) The term "disability" means—
(A) 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 which has lasted or can be expected to last for a continuous period of not less than 12 months; * * *
(2) For purposes of paragraph (1) (A)—
(A) an individual * * * shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.
(B) * * *
(3) For purposes of this subsection, a "physical or mental impairment" is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

We must now examine the evidence to determine whether or not appellant met the requirements of the Act. The Fourth Circuit Court of Appeals stated in Underwood v. Ribicoff, 298 F. 2d 850 (1962); and Dillon v. Celebrezze, 345 F.2d 753 (1965) that there are four elements of proof to be considered in determining whether a claimant is disabled within the meaning of the Social Security Act, and these are: (1) objective medical facts or clinical findings; (2) diagnoses of examining physicians; (3) subjective evidence of pain and disability as testified to by the claimant and corroborated by his wife, other members of his family, his neighbors and others who have observed him; and (4) the claimant's age, education and work history. A fair and conscientious consideration of all of these elements of proof should furnish an examiner with a comprehensive and adequate method of determining whether or not a claimant is disabled within the meaning of the Act in most cases, including the one before us. It is obvious that all of these elements of proof must be considered together and in combination with each other, and not just one or two with the others excluded. Applying these principles to the instant case, the following facts appear:

(1) Objective medical facts or clinical findings:

The objective clinical findings and medical facts must be subdivided into medically determined physical ailments on the one hand and medically determined mental impairments on the other. The evidence as to objective physical ailments show: brain disease, skull defect, residuals of shell fragment wound with post operative scar, encephalopathy, traumatic, secondary to depressed compound fracture of right parietal skull

464 F.2d 95
bone manifested by spastic paresis of left leg, partial paralysis of left leg which causes it to give out, motor weakness on left side of his body, residuals of shell fragment wound of right shoulder and arm with fracture of right humerus and retained multiple foreign bodies, shrapnel and metallic sutures and clips in his skull underlying a 4.5 x 2.5 cm. surgical defect in the right parietal occipital region, and metallic foreign bodies in his neck and right shoulder, shrapnel injuries to left shoulder, fracture, depressed, skull and fracture, compound, causing chronic osteomyelitis of the skull which required craniotomy and cranioplasty, parietal bone, right, with bone from a bone bank. The brain disease due to trauma was manifested by exaggeration of tendon reflexes in the left upper extremity and sensory disturbance in the lower extremity. A number of large metallic fragments were noted in the soft tissues in the region of the left glenohumeral joint and another metallic fragment was noted in the lateral soft tissue of the arm and also many small metallic fragments were noted in the delatoid region of the right arm. Some of these ailments may appear to be repetitious, but they have been listed from the evidence to give as complete a picture as possible

The medically determined objective mental ailments include: anxiety reaction with depressive features, chronic, repressed hostility with tense, apprehensive and defensive attitude, inadequacy of personality with an associated tendency toward passive dependent behavior patterns, paranoid resentment over his injuries, extreme nervous condition which was intensified by economic stress and burdens.

It is true that the objective findings of the various doctors who examined appellant were somewhat different, but as in Dillon, supra, all of the doctors found the claimant was suffering from ailments of one kind or another as shown below.

(2) Diagnoses of examining physicians:

The first doctor to make a diagnosis of appellant's condition was Dr. Charles O. Joest, a captain in the army who reported on May 28, 1954, that appellant was unfit for return to full duty. His further diagnosis was as follows:

He has the following defects which require special consideration in his assignment Shrapnel wound of skull. Paralysis of left side of body with spasticity.
In view of the above, he is considered unfit for the following types of duty (state briefly in non-technical language the type of activity for which he is not fit): No combat what-so-ever. No Physical Training. No marching, climbing or carrying heavy weights.
Any limitation mentioned above are considered (permanent).

Dr. Eric Oppenheimer's diagnosis on January 2, 1958, was:

DIAGNOSIS:
Residuals, encephalopathy, traumatic, secondary to a depressed compound fracture of the right parietal skull bone, with history of osteomyelitis and cranioplasty for repair of small skull defect manifested by mild spastic paresis, left leg, and occasional headaches, and sensation of dizziness.
COMPETENCY:
Veteran is competent.
X-rays of the skull done this day reveal a 5 cm. skull defect
...

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222 practice notes
  • Rease v. Barnhart, No. 1:04-CV-3239-JMF.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • April 12, 2006
    ...his neighbors and others who have observed him; and (4) The claimant's age, education and work history .. . . DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir.1972); Bloodsworth v. Heckler, 703 F.2d 1233 (11th The Commissioner, in reaching his determination, must also follow a five step sequ......
  • Mulet-Rivera v. Barnhart, No. CIV.A.H 05 1850.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • June 22, 2006
    ...See Martinez v. Chater, 64 F.3d 172, 174 (5th Cir.1995); Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir.1991) (citing DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972)). Any conflicts in the evidence are to be resolved by the ALJ and not the court. See Newton, 209 F.3d at 452; Brown, 192......
  • Puente v. Astrue, Civil Action No. H-07-2714
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • September 22, 2008
    ...See Martinez v. Chater, 64 F.3d 172, 174 (5th Cir.1995); Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir.1991) (citing DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir.1972)). Any conflicts in the evidence are to be resolved by the ALJ and not the court. See Newton, 209 F.3d at 452; Brown, 192 ......
  • Washington v. Barnhart, No. CIV.A. H-05-453.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 23, 2006
    ...v. Chater, 64 F.3d 172, 174 (5th Cir.1995); Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir.1991) (citing DePaepe v. Page 950 Richardson, 464 F.2d 92, 94 (5th Cir. 1972)). Any conflicts in the evidence are to be resolved by the ALJ and not the court. See Newton, 209 F.3d at 452; Brown, 192 F.3......
  • Request a trial to view additional results
222 cases
  • Rease v. Barnhart, No. 1:04-CV-3239-JMF.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • April 12, 2006
    ...his neighbors and others who have observed him; and (4) The claimant's age, education and work history .. . . DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir.1972); Bloodsworth v. Heckler, 703 F.2d 1233 (11th The Commissioner, in reaching his determination, must also follow a five step sequ......
  • Mulet-Rivera v. Barnhart, No. CIV.A.H 05 1850.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • June 22, 2006
    ...See Martinez v. Chater, 64 F.3d 172, 174 (5th Cir.1995); Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir.1991) (citing DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972)). Any conflicts in the evidence are to be resolved by the ALJ and not the court. See Newton, 209 F.3d at 452; Brown, 192......
  • Puente v. Astrue, Civil Action No. H-07-2714
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • September 22, 2008
    ...See Martinez v. Chater, 64 F.3d 172, 174 (5th Cir.1995); Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir.1991) (citing DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir.1972)). Any conflicts in the evidence are to be resolved by the ALJ and not the court. See Newton, 209 F.3d at 452; Brown, 192 ......
  • Washington v. Barnhart, No. CIV.A. H-05-453.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 23, 2006
    ...v. Chater, 64 F.3d 172, 174 (5th Cir.1995); Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir.1991) (citing DePaepe v. Page 950 Richardson, 464 F.2d 92, 94 (5th Cir. 1972)). Any conflicts in the evidence are to be resolved by the ALJ and not the court. See Newton, 209 F.3d at 452; Brown, 192 F.3......
  • Request a trial to view additional results

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