Ellerman v. Flemming

• Decision Date: 24 October 1960
• Docket Number: No. 12584.,12584.
• Citation: 188 F. Supp. 521
• Parties: Lester G. ELLERMAN, Plaintiff, v. Arthur S. FLEMMING, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Western District of Missouri

188 F. Supp. 521

Lester G. ELLERMAN, Plaintiff, v. Arthur S. FLEMMING, Secretary of Health, Education and Welfare, Defendant.

No. 12584.

United States District Court W. D. Missouri, W. D.

October 24, 1960.

COPYRIGHT MATERIAL OMITTED

Walter R. James, James, McFarland & Trimble, North Kansas City, Mo., for plaintiff.

Edward L. Scheufler, U. S. Atty., Clark A. Ridpath, Asst. U. S. Atty., Kansas City, Mo., for defendant.

RIDGE, Chief Judge.

This action is before the Court pursuant to the provisions of Section 205(g) of the Social Security Act, as amended, (42 U.S.C.A. § 405(g)) to review the final decision of the Secretary of Health, Education and Welfare, denying plaintiff a period of disability under Section 216 (i), as amended, and disability insurance benefits under Section 223. 42 U.S.C.A. §§ 416(i), 423.

On August 22, 1957, claimant filed application to establish a period of disability insurance benefits, alleging that he first became unable to work on December 26, 1956, at age 58, because of a coronary occlusion, diabetes mellitus, and osteoarthritis. His wage record establishes that the statutory earnings requirements were met in the alleged quarter of disability and continuing through the calendar quarter ending September 30, 1958. The Bureau determined that the claimant's impairment did not constitute a "disability" within the meaning of the Social Security Act. The claimant's applications were, therefore, disallowed initially, and on reconsideration he was so notified by letters dated March 18, 1958, and July, 1958. Claimant then requested a decision by a Referee of the Social Security Administration. After a hearing, the Referee found that the claimant was not "disabled", affirming the determination of the Bureau. On review, defendant affirmed the Referee.

The facts are not in dispute. Claimant, now 62, has had no more than an Eighth Grade education. As a boy he ran his father's farm until he was 25. He then operated a filling station and a blacksmith shop, respectively, for brief periods. In 1927 he came to Kansas City, and was employed by Corn Products Company. His position there varied over a period of years; all were manual laboring jobs, in that he worked with various machines, opening and closing valves, etc. He worked with Corn Products until his heart attack in 1956, when he was retired on the basis of an examination by the Company's physician; a Dr. Fowler, whose medical report was in evidence before the Referee, dated April 30, 1958. It contained the following comment:

"It is my opinion that Mr. Ellerman is no longer physically capable of carrying out his occupation at Corn Products Refinery or to carry out any other occupation which requires physical effort. He has had a serious heart involvement and still has anginal pains in spite of the stability of the cardiac process as described by the electrocardiologist. He should be retired from work on the basis of impaired health and should remain under medical supervision."

Since his release from the hospital in 1957, claimant has been under the medical supervision of a Dr. J. McCormick, a private physician, whose various medical reports of claimant's condition were also before the Referee. Since 1957, Dr. McCormick's diagnosis of claimant has been the same, as illustrated by a letter written by him to claimant's attorney (Ex. 24, Tr. 93), dated February 9, 1959. It reads:

"As I have stated a number of times before, Mr. Ellerman had severe damage to his heart muscles and I feel that he is completely unable for any gainful occupation. In June of this past year he had some episodes of chest pain relieved by nitroglycerine. I do not know how many episodes he has had since but I feel he should have no activities that would bring on these attacks of angina. Some of the activities that were mentioned were: fast walking, climbing stairs, raking, using a hammer or saw, losing his temper, or becoming emotionally disturbed. He has been able to drive his car and lead a sedentary life at my insistence.

"I feel I could say with certainty that there is no firm or company in Kansas City that would hire this man because of his past history."

Also in evidence below was the medical report of Dr. John Cashman, Doctor of Internal Medicine (Ex. 17) dated June 9, 1958, who examined petitioner on behalf of OASI Disability Determinations Counselor. The following is contained therein:

"This man has many complaints, and I think he honestly feels that he is disabled; and honestly from my point of view, I don't know why any one would hire him or what he could do. (Emphasis added) He apparently has anginal attacks two or three times a week, though this is a little difficult to determine because of the overall pain pattern that he presents `from the neck to the bottoms of the feet.' He had a posterior infarction. He has not had any cardiac decompensation. It is difficult to find objective evidence of osteoarthritis to support his multiple complaints. Being purely objective about it, it would appear that this man is not as disabled as his subjective symptoms would suggest. I would not feel that he would be fit for competitive labor on the open market, but feel that he would be fit for many types of various light duty."

But note the Doctor does not suggest that petitioner might or could perform such "light duty" with any degree of regularity.

Claimant's son testified before the Referee that he saw his father often and that "even the little puttering around the house" claimant does, he "could work no more than twenty minutes and he would have to sit down and rest." (Tr. 42) Claimant's medical evidence established he had a cardiac functional capacity of class 3, "marked limitation"—difficult or labored breathing on slight to moderate exertion. Claimant testified that when he over-exerts himself he gets chest pains, and experiences such pain at times when "sitting" at home. His two treating doctors confirm such condition. Petitioner also testified that he has mowed his lawn (with a power mower), taken short walks, short drives, cleaned the house, washed dishes, etc., but when doing so he quits working the rest of the day if he gets a chest pain.

Upon this evidence the Referee said:

"The Referee realizes that the weight of medical authority places the claimant's impairments in the category of diseases which are of long-lasting and indefinite duration. The mere existence of such impairments, however, will not permit a finding that an individual is under a disability as defined in the Social Security Act. Consideration must be given to other factors, such as the individual's education, training, and work experience; and the severity of the impairment must be evaluated in terms of whether it does, in fact, prevent the individual from engaging in any substantial gainful activity. In the instant case, the evidence in its entirety clearly shows that the claimant's impairments, singly or in combination, are not of such severity as to preclude the claimant from following substantial gainful activity such as sedentary work or light manual labor. While the claimant does meet the requisite of having a medically determinable impairment which is expected to be of long-continued and indefinite duration, he does not meet the second requisite that there must be a present inability to engage in any substantial gainful work by reason of such impairment. The individual must be disabled not only for work of the laborious nature but also for any type of substantial gainful activity. Considering claimant's education, work experience, and present activities, along with the severity of his impairments, it would appear that he is capable of engaging in some type of substantial gainful activity." (Emphasis added.)

But, again note, the Referee does not suggest of what such "substantial gainful activity" might practically consist.

This Court is cognizant that its power in this case is a limited review of the Referee's findings:—If his findings of fact are supported by substantial evidence there can be no substitution by this Court for his judgment. 42 U.S. C.A. § 405(g). However, that limitation does not mean that the Court is to surrender its "conventional judicial function." Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 466, 95 L.Ed. 456. While the statutory finality (42 U.S.C.A. § 405(g)) of the administrative findings necessarily extends to the reasonable inferences and conclusions drawn from the evidence, nevertheless if it is apparent that the administrative decision is based upon conclusions which were not reasonably reached, or which resulted from improper conclusions of law which are unsupported by the evidence, the Court may and should correct those errors. Pruitt v. Flemming, D.C. S.D.W.Va.1960, 182 F.Supp. 159; Goldman v. Folsom, 3 Cir., 1957, 246 F.2d 776.

The test for disability under the Social Security Act consists principally of two parts: (1) a determination of the extent of the physical or mental impairment; and, (2) a determination whether that impairment results in an ability to engage in any substantial gainful activity. 42 U.S.C.A. §§ 416 and 423.

After giving full consideration to the entire record, it is my judgment that the Referee's conclusions are not supported by substantial evidence. The transcript as a whole, read together with the Referee's opinion, reveals that he must have been substantially influenced in his decision, solely by the medical report of Dr. Cashman. Dr. Cashman's report, standing alone, does not constitute substantial evidence in support of the Referee's decision, ipso facto, in view of the other medical evidence and other facts reflected in the transcript.

The claimant in this case has been a laborer all his life. He has but an Eighth Grade education. Since 1956 he has been unable to perform other than simple household tasks, i. e. washing dishes,...