Garrett v. Gardner, Civ. A. No. 5-316.
| Decision Date | 13 August 1968 |
| Docket Number | Civ. A. No. 5-316. |
| Citation | 289 F. Supp. 829 |
| Parties | William GARRETT, Plaintiff, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant. |
| Court | U.S. District Court — Northern District of Texas |
George A. Canon, Lubbock, Tex., for plaintiff.
Eldon B. Mahon, U. S. Atty., Dallas, Tex., Charles D. Cabaniss, Asst. U. S. Atty., for defendant.
Claimant Garrett appeals from a final decision of the Secretary of Health, Education and Welfare denying his claim for a period of disability and for monthly disability insurance benefits under 42 U.S.C. § 423. Garrett, at the time he applied for the benefits in August, 1964, was over 60 years of age and had been employed most of his adult life as a brickmason and stonemason, sometimes doing his own contracting therefor. He had had an eighth grade education.
At the hearing of his case before the Department of Health, Education and Welfare Hearing Examiner on November 2, 1965, Garrett testified that he had developed cataracts on both eyes about two years prior to the time he applied for benefits and his sight had gradually worsened until he could no longer continue his work and also had to give up driving. He had an operation on the left eye in November, 1964. A letter from the surgeon, Dr. Weldon O. Murphy, dated January 5, 1965, states that the "postoperative course has been uneventful" (T.99), and a report from the same doctor dated May 20, 1965 says that "visual acuity in the operated left eye with correction was 20/60 and with a +1.50 added, was 20/20." (T.102) On August 2, 1965, the right eye was operated on and on September 16, 1965, according to the same doctor, Garrett had in that eye a "visual acuity of 20/30." T.111)
On the basis of this medical evidence, the Hearing Examiner opined that claimant "has not established inability to engage in any substantial gainful activity by reason of a medically determinable impairment which can be expected to result in death or be of long continued and indefinite duration, or * * * which can be expected to last for a continuous period of not less than 12 months." (T.12) In order to come within the scope of § 423 either before or after the 1965 amendments thereto, claimant was required to establish inability caused by such an impairment. The Examiner noted that "cataracts are remediable impairments, * * * that claimant had successful cataract extractions, and that his corrected visual acuity has been restored to 20/30, bilateral." "It is a matter of common knowledge that * * * the presence of corrected visual acuity of 20/30, bilateral, constitutes good visual acuity for most purposes including reading, writing, driving, walking and working." (T.12-13)
This case should be remanded for further evidence on the question of whether claimant was disabled between August, 1964 and September, 1965. It would seem that there is not any evidence, much less any "substantial evidence" in the record on which this court can affirm the Examiner's decision that claimant did not, during this time period, establish inability to engage in substantial gainful activity by reason of a medically determinable impairment which "can be expected to last for a continuous period of not less than 12 months." On the contrary, the available evidence would seem to indicate that at the time Garrett applied for benefits in August, 1964, and for over a year subsequent thereto, if not at the time of the hearing, he was suffering from just such an impairment. There are, however, no testimony and no reports at all on such relevant questions as: Would it have been advisable and feasible for claimant to have undergone surgery on both eyes at once, thereby presumably regaining visual acuity of 20/30, bilateral, at an earlier date than it was actually regained? I. e., did claimant deliberately postpone the second operation so that his impairment would last not less than 12 months? (This seems unlikely, especially in view of the fact that the 1965 amendment to § 423 had not yet been written into the Act at the time of the first operation in November, 1964.) How likely was it that the cataract operations would be successful? Was Garrett advised by his physician not to do any more brick work or close work? The Examiner questioned claimant briefly on this point (T.46),...
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