Gardner v. Smith

• Decision Date: 11 October 1966
• Docket Number: No. 22392.,22392.
• Citation: 368 F.2d 77
• Parties: John W. GARDNER, Secretary of Health, Education and Welfare, Appellant, v. Luther L. SMITH, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

368 F.2d 77 (1966)

John W. GARDNER, Secretary of Health, Education and Welfare, Appellant, v. Luther L. SMITH, Appellee.

No. 22392.

United States Court of Appeals Fifth Circuit.

October 11, 1966.

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David L. Rose, Frederick B. Abramson, Attys., Dept. of Justice, John W. Douglas, Asst. Atty. Gen., William Wayne Justice, U. S. Atty., Sherman L. Cohn, Atty., Dept. of Justice, Washington, D. C., for appellant.

Kyle Wheelus, Jr., Beaumont, Tex., Marcus, Weller, Wheelus & Green, Beaumont, Tex., of counsel, for appellee.

Before TUTTLE, Chief Judge, RIVES, Circuit Judge, and CHOATE, District Judge.

RIVES, Circuit Judge:

This is an action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) for judicial review of the Secretary's decision denying the claimant's application to establish a period of disability and for disability insurance benefits under sections 216(i) and 223 of the Act, 42 U.S.C. §§ 416(i) and 423.¹ The district court in passing upon the claim found that erroneous, improper and repudiated legal standards were applied and, hence, that the decision should not enjoy the insulation of the substantial evidence test. The court further found that, if the proper legal standards were applied, there is no substantial evidence in the record to support the Secretary's decision denying the claimant benefits under the Act. A judgment was entered reversing the decision of the Secretary and directing him to grant the claimant's application.

The primary question to be determined on this appeal is whether the Secretary applied the proper legal standards. If he did, then the only remaining question is whether his findings are supported by substantial evidence.² If the correct legal standards were not applied, then the question is whether the district court erred in making its own findings of fact and granting relief, or whether the case should have been remanded for further action by the Secretary.

The claimant was born near Buna, Texas, on September 15, 1911, and lived in that vicinity all of his life. His formal schooling ended with the fourth grade. He worked on his father's farm until 1947 when, at age 36, he went to work in the Kirby Lumber Company sawmill, and worked steadily for 13 years, or until July 6, 1960. On June 14,À 1957, while lifting a board, his foot slipped and he felt a pulling in his side. Five days later he realized that his back had been hurt. He was taken to a hospital in Beaumont, Texas, where a surgeon removed his appendix. He got no relief to his back and that has bothered him ever since. He missed eight weeks' work in 1957. He received a notice from the Industrial Accident Board with a form of claim for workmen's compensation. He filled out the form but, instead of filing it, simply "stuck it down in my drawer," and held the report for about three years. During this last three-year period he had worked up by seniority to the job of "top man," the softest job available at the sawmill. That involved nothing more than walking up and down along the catwalk high in the building and pushing buttons to release lumber when it had accumulated and should be removed. There was a seat from which he could see the lumber accumulating and he was able to alternate sitting, standing and walking. Notwithstanding the ease of this work, on about July 6, 1960, he felt that he could not continue and was away from wo until August 23. He returned and worked until September 9, 1960, when he finally gave up and has not worked a day since.³

For several months in 1962, from June 8 to September 2, the claimant was confined in a mental institution, the Rusk State Hospital at Rusk, Texas. A niece, giving a personal interview, stated that she thought the mental illness started five years prior to that date or in 1957. The superintendent of the hospital certified that no electro shock therapy was administered but that tranquilizers and other drugs were used, and "the patient seemed to make a very nice adjustment." His psychiatric impairment was variously diagnosed as a depressive psychosis, a manic depressive reaction, a chronic anxiety reaction with marked hypochondriasis and a chronic conversion reaction. The superintendent of the hospital certified that "work tolerance was not considered during the patient's hospitalization," but that, "it was felt that the patient, so long as he was in the remission he was in at the time of his discharge, could handle himself well in the ordinary circumstances of life."

The 365-page administrative record contains the varying opinions of five general practitioners, two psychiatry and neurology specialists, a neurological surgeon, two psychiatric specialists and an internist. Numerous other opinions were contained in hospital and clinical records. None of the doctors suggested that the claimant is a malingerer. His family physician who had treated him since 1938 diagnosed his trouble as "psychoneurosis with schizophrenia with possible multiple sclerosis, lumbosacral arthritis. In my opinion, Luther L. Smith is totally disabled." On the other hand, the neurological surgeon found that, "This patient seems to have no neurologic disease of any type." Opinions of other doctors varied between these two extremes. There was less variation in the medical evidence as to the claimant's physical impairment.

A vocational consultant gave his evaluation of the clamant's vocational capabilities. He thought that the claimant had the capacity to perform jobs which were primarily sedentary in nature and fairly routine. Specifically, he felt that the claimant could work as a "bander" or baked goods wrapper, an egg inspector or defeatherer of chickens, a gateman, laundry marker, hand labeler, working with coils for small motors, and inspecting types of glass, lenses, and bottles. The district court gave careful consideration to the testimony of this vocational expert, and summarized his testimony as follows:

"( 1) Obtaining employment involves two things: (a) getting the job, and (b) doing the job or being able to do it. (Tr. 231.)

"( 2) Luther Smith is not a fit candidate for large industries for employment, they won\'t hire him. (Tr. 233.)

"( 3) He is not fit to work in any building trade. Å(Tr. 233.)

"( 4) There is always the job of getting him past the employment office. (Tr. 233.)

"( 5) As a practical matter no company doctor will pass any applicant with a present back condition. (Tr. 234.)

"( 6) A physical examination would be a barrier that would eliminate him. (Tr. 234.)

"( 7) Getting any job requires an interview (Tr. 236.)

"( 8) From the standpoint of employ-ability, if all humanity were placed on a sliding scale, Luther would be close to the bottom. (Tr. 236.)

"( 9) If Luther and one other applied for any of the jobs suggested by the witness, the other fellow would have to be in pretty sorry shape if he is not to be hired over Luther. (Tr. 236-237.)

"(10) In terms of getting the job I would say that his chances are very poor. (Tr. 237.)

"(11) Luther has really got problems as far as getting hired. (Tr. 237.)

"(12) All jobs suggested by the witness involve assembly line or production line jobs. (Tr. 237-238.)

"(13) Luther is obviously going to have to take periodic breaks frequently, e chances are he would not be able to maintain production and would not be able to perform the job. (Tr. 238-239.)

"(14) An employer would not deliberately inflict himself with problems of the magnitude to be anticipated by hiring Luther Smith. (Tr. 241.)

"(15) From the standpoint of age as well as disability Luther Smith is getting toward the end of his productive life from the standpoint of beginning a career. (Tr. 247.)

"(16) Looking at it from the employer\'s standpoint in any of the jobs mentioned, Luther is not a desirable candidate for employment. (Tr. 253.)

"(17) If a man cannot stand and cannot sit, then the point is that there is no job for him. (Tr. 256.)"

The district court concluded as follows:

"The Court is of the opinion that there has been no showing that Luther Leemon Smith is looking for `unemployment compensation\' as the Secretary has asserted; that is, from a full reading of the record, the Court is of the opinion that this is not a case where an employable individual cannot find work or is temporarily out of a job. The record shows that Luther Leemon Smith is not employable at any of the jobs in existence (not merely available) in this geographic locality. Simply stated, the record reflects that he cannot get a job but, assuming arguendo that he did get a job, his medically determinable condition is such that he could not keep it. He had such a job and for three years, he `toughed it out\' but in July, 1960, he had to give up what was the lightest, easiest job at Kirby Lumber Corporation, and this job was lighter and easier than any of the theoretical jobs suggested by the Hearing Examiner and Appeals Council.

"The transcript is long, but it conclusively establishes that since July, 1960, Luther Leemon Smith has been, is, and will be unable to engage in substantial gainful activity by reason of medically determinable physical or mental impairments which can be expected to be of long-continued and indefinite duration."

The difference in viewpoint as to the proper legal standards to be employed is fairly stated in the decision of the Appeals Council as follows:

"The Appeals Council also agrees with the conclusion of Frederick Wiener, the vocational witness, that the claimant had the residual physical and mental capacity to engage in a variety of jobs which are primarily sedentary in nature and which involve eye-hand co-ordination and the ability to perform hand movements. A fair reading of the vocational consultant\'s expert testimony cannot but leave the impression that he was of the opinion that the claimant could function in many jobs as they are commonly found in the national economy. The vocational consultant also testified in some

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