Easttam v. Secretary of Health, Ed. and Welfare

• Decision Date: 11 August 1966
• Docket Number: No. 18282.,18282.
• Citation: 364 F.2d 509
• Parties: Harvey W. EASTTAM, Appellant, v. The SECRETARY OF HEALTH, EDUCATION AND WELFARE, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

364 F.2d 509 (1966)

Harvey W. EASTTAM, Appellant, v. The SECRETARY OF HEALTH, EDUCATION AND WELFARE, Appellee.

No. 18282.

United States Court of Appeals Eighth Circuit.

August 11, 1966.

Charles J. Hlavinka, of Atchley, Russell, Hutchinson & Waldrop, Texarkana, Ark.-Tex., for appellant.

John W. Douglas, Asst. Atty. Gen., Civil Div., Washington, D. C., Morton Hollander, Chief, Appellate Section, Washington, D. C., Charles M. Conway, U.S. Atty., Fort Smith, Ark., and Robert E. Johnson, Asst. U. S. Atty., Fort Smith, Ark., for appellee.

Before VAN OOSTERHOUT, BLACKMUN and GIBSON, Circuit Judges.

BLACKMUN, Circuit Judge.

Harvey W. Easttam has instituted this action under § 205(g) of the Social Security Act as amended, 42 U.S.C. § 405 (g), for judicial review of the Secretary's final decision disallowing Easttam's claim for a period of disability and for disability insurance benefits under §§ 216(i) and 223, 42 U.S.C. §§ 416(i) and 423. Judge Miller, in an unreported memorandum, upheld the Secretary's decision and entered judgment dismissing Easttam's complaint. The case is here on the claimant's in forma pauperis appeal.

Easttam filed his application on March 12, 1964. In it he stated that he was 53 years of age; that his impairments were high blood pressure, loss of vision in one eye, and poor vision in the other; that he became unable to work on March 10, 1964; that he had been employed as a door builder for over two years immediately prior to the date of his disability; and that he earned about $2800 the preceding year. At an interview in July, 1964, he added complaints of constant pain in his left side and numbness and color changes in his hands in cold weather.

The application met with no success throughout the administrative process, including the initial review, reconsideration, hearing before an examiner, and a request for review by the appeals council.

This court, recently, on a number of occasions, has enunciated and summarized the legal standards applicable to an appeal of this kind. In Brasher v. Celebrezze, 340 F.2d 413, 414 (8 Cir. 1965), we said:

"(a) the claimant has the burden of establishing his claim; (b) the Act is remedial and is to be construed liberally; (c) the Secretary\'s findings and the reasonable inferences drawn from them are conclusive if they are supported by substantial evidence; (d) substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (e) it must be based on the record as a whole; (f) the determination of the presence of substantial evidence is to be made on a case-to-case basis; (g) where the evidence is conflicting it is for the Appeals Council on behalf of the Secretary to resolve those conflicts; (h) the statutory definition of disability imposes the three-fold requirement (1) 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,^* (2) that there be an inability to engage in any substantial gainful activity, and (3) that the inability be by reason of the impairment; (i) such substantial gainful activity is that which is both substantial and gainful and within the claimant\'s capability, realistically judged by his education, training, and experience; (j) the emphasis is on the particular claimant\'s capabilities and on what is reasonably possible, not on what is conceivable; and (k) it is not the duty or the burden of the Secretary to find a specific employer and job for the claimant but, instead, some effort and some ingenuity within the range of the claimant\'s capacity remains for him to exercise."

See, also, Celebrezze v. Bolas, 316 F.2d 498, 500-501, 507 (8 Cir. 1963); Celebrezze v. Sutton, 338 F.2d 417 (8 Cir. 1964); Marion v. Gardner, 359 F.2d 175, 179-180 (8 Cir. 1966); Nichols v. Gardner, 361 F.2d 963 (8 Cir. 1966).

With these standards in mind, we turn to Easttam's facts. The claimant was born in December 1910. He completed only the fourth grade and has received no specialty training. He is married and has one child who is an adult and is in an institution. He farmed, either for himself or for others, until about 1956. He then worked at the Red River Arsenal as a general laborer until June 1957. This was followed by periods of general farm work and of cutting pulp wood. In February 1962 he went to work for a door factory and was employed there until he quit in March 1964. Since then, he has done odd or "little" jobs for short periods. These have included "bush hogging" (leveling a field with a tractor), cutting wood, digging holes, building fences, and plumbing.

The claimant's case in its present posture rests on acute side pain said to diminish his capacity for lifting and for other physical activity, blindness in the left eye, diminished vision in the right eye, Buerger's disease, chronic hypertension, and shortness of breath. Specifically, he asserts inability to use a power saw because of his side pain and inability to do repairs, or his old work at the door factory, because of poor vision.

Dr. E. B. McGee is a general practitioner and Easttam's personal physician. The file contains three reports from Dr. McGee. In the first, dated July 20, 1964, the doctor noted 20/20 vision in the right eye after correction, 20/200 in the left, nervousness, left side chest pain, numbness of hands, dizziness and weakness, moderate hypertension, the administration of anti-hypertensive medication, a normal heart, some plural adhesions, emphysema, and severe left side discomfort upon exertion. A second report, dated September 16, 1964, noted the development in 1962 of numbness in the hands "especially in the winter months" and left side...