Floyd v. Finch

• Decision Date: 26 February 1971
• Docket Number: No. 19177.,19177.
• Citation: 441 F.2d 73
• Parties: James H. FLOYD, Plaintiff-Appellant, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

441 F.2d 73 (1971)

James H. FLOYD, Plaintiff-Appellant, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 19177.

United States Court of Appeals, Sixth Circuit.

February 26, 1971.

Louis E. Peiser and Irving S. Zeitlin, Memphis, Tenn., for appellant.

William D. Ruckelshaus, Asst. Atty. Gen., Morton Hollander, Robert M. Heier, Attys., Department of Justice, Washington, D. C., Thomas F. Turley, Jr., U. S. Atty., Memphis, Tenn., for appellee.

Before WEICK and McCREE, Circuit Judges, and McALLISTER, Senior Circuit Judge.

WEICK, Circuit Judge.

This appeal is from an order of the District Court granting summary judgment in favor of the Secretary in a proceeding to review the denial of disability benefits under the Social Security Act. 42 U.S.C. § 423.

Appellant, Floyd, a truck driver for Armour & Co., who was 55 years of age, on November 3, 1964 filed his application for disability benefits, alleging that since June 8, 1964 he had been unable to engage in substantial gainful activity because of arthritis. His application was denied initially and again on reconsideration by the Social Security Administration. He was granted an evidentiary hearing before a hearing examiner, who adopted findings of fact and concluded that Floyd had failed to show by medical evidence that he was suffering from an impairment of such severity as would preclude him from engaging in substantial gainful activity.

Floyd then requested review by the Appeals Council, and his attorney submitted a medical report which indicated arthritis and also a pulmonary condition by history, which had not been considered by the trial examiner. Two additional medical reports were procured by the Secretary: one from an internist, and the other from an orthopedic surgeon.

The Appeals Council considered the evidence before the trial examiner and the new medical reports filed with it, and adopted findings of fact from the entire record. It concluded that Floyd had no pulmonary impairment; that his mild arthritic condition did not prevent him from engaging in substantial gainful activity; and affirmed the decision of the trial examiner.

The District Court, in proceedings to review, found substantial evidence to support the factual findings of the Secretary and granted summary judgment.

Judicial review of decisions of the Secretary is limited. His findings of fact, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g); Rose v. Cohen, 406 F.2d 753 (6th Cir. 1969). Courts are not permitted to try the cases de novo; Walters v. Gardner, 397 F.2d 89 (6th Cir. 1968).

Courts may not resolve conflicts in the evidence or decide questions of credibility. Moon v. Celebrezze, 340 F.2d 926 (7th Cir. 1965).

In order to be compensable under the 1967 Amendments to the Act, the impairment must result from abnormalities which are "demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d) (3) (1964 ed. Supp. III). These amendments are applicable to the present case as the decision has not become final. Walters v. Gardner, supra.

The medical evidence submitted by the Secretary consisted of reports from Doctors Ray, Hoover, Horton, and Whittemore, and the testimony of Doctor Anderson. Claimant submitted hospital records from St. Joseph's Hospital and reports from Doctors Kasselberg and Myhr.

The medical evidence submitted by the Secretary was essentially that claimant had mild arthritis which would not prevent him from engaging in substantial gainful activity. It was also to the effect that his subjective symptoms were not supported by the clinical findings. Dr. Ray stated that his subjective symptoms were far out of proportion to the objective findings.

Dr. Hoover gave evidence concerning movements and activities of claimant in the Doctor's presence, which were inconsistent with the claim of back and neck impairment. He stated:

"It is quite apparent that the patient reacts to light touch and gave quite active resistence to movement when the examiner checked for range of motion. When attention is directed to the back and leg areas, the patient quite obviously gives false responses in straight leg raising and Patrick Hip tests examination. This is quite apparent from the fact that he did not show any limitation of motion or complaint when this area was being observed earlier in the examination without his knowledge."

He further stated:

"This patient\'s motivation to work is obviously extremely poor. Objective findings do not support the subjective symptoms."

Dr. Anderson in his testimony reviewed the medical findings and opinions and came to the conclusion that claimant did have mild arthritis in his back and neck but —

"* * * The use of his extremities and of his back should be satisfactory for anything except heavy lifting."

He gave his opinion that claimant could work a forty-hour week provided he was not required to lift objects weighing more than ten to twenty pounds.

Dr. Whittemore found mild degenerative reaction in cervical and lumbar spine but "based on reasonable medical certainty that patient should be able to move about, handle objects and perform sustained activity requiring light exertion."

Dr. Horton found no pulmonary involvement. Claimant did have a cough and the doctor recommended that he abstain from smoking.

Dr. Myhr, an internist, who gave a report for the claimant, found that he had "Pulmonary emphysema and fibrosis from history." He did not relate this to any clinical findings but obtained it from claimant as history. Dr. Horton, who made clinical findings, determined that no such condition existed. Dr. Myhr also found that claimant had "(1) Cervical osteoarthritis, severe, (2) Cervical disc syndrome at C5 and C6, and C6 and C7, (3) Osteoarthritis of the lumbar spine." He was of the opinion that claimant —

"is unable to work at this time mainly because of his pulmonary disease and also because of his cervical disc syndrome which is causing him considerable neck pain, and also because of lumbar spine arthritis."

Dr. Kasselberg made reports concerning three examinations during hospitalization of claimant in St. Joseph's Hospital in 1964. His first report was that the lumbar arthritic condition improved with medication. The second report indicated there was an excellent prognosis for improvement, and the third indicated that prognosis as to full recovery was limited but as to the immediate future it was satisfactory. Later, on November 11, 1964, he reported that claimant "was not able to return to work at present and I do not know if he will ever be able to return to his usual type of work." His usual type of work was lifting heavy loads of meat, weighing as much as 229 pounds. The Secretary did not claim that he could do this, but that he could engage in substantial activity.

Claimant testified that he walks about eight blocks a day; that he mows his lawn with a power mower; that he walks to the grocery store for groceries; that he drives an automobile, the longest trip during the last twelve months being about 150 miles; that he spends most of his time (about three hours a day) in a small building, 10' x 10', in his back yard, cutting out spice racks from wood with a jig saw, which he does as a hobby; and that he also makes wooden chains.

In view of the medical evidence that claimant's subjective symptoms were not supportable, and the evidence of his false responses in one of the examinations, we cannot criticize the trial examiner for his questioning of claimant. The hearing examiner found that claimant could perform many sedentary occupations listed in the Dictionary of Occupational Titles, Volumes I and II, published by the Department of Labor. It was proper for the Secretary to take administrative notice that light work existed in the national economy. Breaux v. Finch, 421 F.2d 687 (5th Cir. 1970).

The fact that the claimant receives from other sources about $223 per month in disability and retirement pension and insurance is irrelevant to our inquiry.

In our opinion there was substantial evidence to support the factual findings of the Appeals Council. It is not our function to resolve conflicts in the evidence or determine issues of credibility of witnesses. This is solely the function of the Secretary.

The law required the claimant to prove that his impairment was demonstrable by medically acceptable clinical and laboratory diagnostic techniques. We agree with the Secretary that claimant failed to do this.

Affirmed.

Judge McCREE concurs.

McALLISTER, Senior Circuit Judge (dissenting).

The majority opinion states that the District Court "found substantial evidence to support the factual findings of the Secretary and granted summary judgment," and that his "findings of fact, if supported by substantial evidence, are conclusive," and sustained such judgment.

It used to be easy enough for an appellate court to affirm an administrative agency on the ground that the findings were supported "by substantial evidence," if it could find just a trace of evidence to support them. But that is not the case anymore. Congress grew critical of such affirmances which ignored conflicting evidence and, in turn, brought about harsh criticism of the courts for such decisions on the ground that cases were affirmed merely because the appellate court could find evidence in the record which, viewed in isolation, substantiated a Board's findings.

In Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, Mr. Justice Frankfurter declared: "Protests against `shocking injustices and intimations of judicial `abdication' with which some courts granted enforcement of the Board's orders stimulated pressures for legislative relief from alleged administrative excesses," with the result that the Taft-Hartley Act provided that such findings of fact must be "supported by substantial evidence on the record as a whole. * * * We conclude,...