Garrett v. Richardson, Civ. A. No. 71-1071.

• Decision Date: 15 August 1973
• Docket Number: Civ. A. No. 71-1071.
• Citation: 363 F. Supp. 83
• Parties: Joseph GARRETT, Plaintiff, v. Elliot L. RICHARDSON, Secretary of Health, Education, and Welfare, Defendant.
• Court: U.S. District Court — District of South Carolina

363 F. Supp. 83

Joseph GARRETT, Plaintiff, v. Elliot L. RICHARDSON, Secretary of Health, Education, and Welfare, Defendant.

Civ. A. No. 71-1071.

United States District Court, D. South Carolina, Greenville Division.

August 15, 1973.

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COPYRIGHT MATERIAL OMITTED

Willie T. Smith, Jr., Legal Services Agency, Greenville County, Inc., Greenville, S. C., for plaintiff.

John K. Grisso, U. S. Atty., D. of S. C., Columbia, S. C., and Henry Herlong, Asst. U. S. Atty., for the D. of S. C., Greenville, S. C., for defendant.

ORDER

HEMPHILL, District Judge.

This is a suit by the plaintiff against the Secretary of Health, Education, and Welfare under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Secretary denying the plaintiff's application for the establishment of a period of disability under § 216(i) of the Act, 42 U.S.C. § 416(i), and for disability insurance benefits, as provided by § 223 of the Act, 42 U.S.C. § 423.

The plaintiff filed applications to establish a period of disability and for disability insurance benefits on October 13, 1969 and November 14, 1970, the latter being considered by the Secretary as a request for reconsideration. These applications were denied initially and upon reconsideration, and pursuant to the plaintiff's timely request a hearing was held de novo before a hearing examiner in Greenville, S. C., on May 19, 1971, at which time plaintiff was represented by counsel. The hearing examiner rendered his decision adverse to the plaintiff on July 9, 1971, which decision became the final decision of the Secretary when it was affirmed by the Appeals Council on September 1, 1971.

The only issue before this court is whether or not the findings of the Secretary are supported by substantial evidence, and if they are the findings of the Secretary must be accepted. This court may not try the case de novo and substitute its findings for those of the Secretary. Flack v. Cohen, 413 F.2d 278 (4th Cir. 1969). This does not mean however that the findings of the administrative agency must be blindly accepted. On the contrary, the statutorily granted right of review contemplates more than an uncritical rubber stamping of the administrative action. Flack mandates a critical and searching examination of the record, and the setting aside of the Secretary's decision when necessary to insure a result consistent with congressional intent and elemental fairness. Flack, supra, at 279-280. See also Thomas v. Celebrezze, 331 F.2d 541 at 543 (4th Cir. 1964). As was stated by Judge McAllister in a recent Sixth Circuit opinion, and quoted with approval in Garrett v. Richardson, 471 F.2d 598, 604 (8th Cir. 1972):

"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." Floyd v. Finch, 441 F.2d 73, 76 (6th Cir. 1971).

Substantial evidence has been defined by the Supreme Court as "more than a mere scintilla". It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842, 852 (1971). See also Kyle v. Cohen, 449 F.2d 489, 492 (4th Cir. 1971). As was stated in Dyer v. Richardson, 347 F. Supp. 478 (E.D.Tenn.1972), quoting Consolo v. Federal Maritime Com., 383 U.S. 607, 619-620, 86 S.Ct. 1018, 1026, 16 L. Ed.2d 131 (1966), "It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." Id. at 481. It is now clearly settled that written medical reports by a licensed physician who has examined the claimant may constitute "substantial evidence" in social security cases, despite their hearsay character, Perales, supra, 402 U.S. at 402, 91 S.Ct. at 1428, 28 L.Ed.2d at 853.

In order to establish a claimant's entitlement to social security disability benefits, there must be a showing that (1) there is a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve (12) months, and (2) that the impairment in fact caused an inability to engage in any substantial gainful activity. Harris v. Richardson, 450 F.2d 1099 (4th Cir. 1971); Hicks v. Gardner, 393 F.2d 299 (4th Cir. 1968) makes it clear that more than the objective medical facts are to be considered in this regard. As stated in Hicks:

Before making a finding of a claimant's ability or inability to engage in any substantial gainful activity as contemplated by the law, there is a duty to consider the objective medical facts, which are the clinical findings of examining or treating physicians divorced from their expert judgment or opinions as to the significance of the clinical findings; (2) the medical opinions of these physicians; (3) the subjective evidence of pain and disability testified to by the claimant and corroborated by other evidence; and (4) the claimant's background, work history and present age. Id. at 302 (citations omitted).

It was also made clear in Hicks that a claimant's maladies must be considered in combination and not fragmentized in evaluating their effects on the claimant. Id. See also Branham v. Gardner, 383 F.2d 614 (6th Cir. 1967).

The general rule is that in order to authorize denial of social security benefits on the ground that the impairment does not render the claimant unable to engage in any gainful employment, "there must be evidence to show the reasonable availability of jobs which the claimant can perform." Hayes v. Gardner, 376 F.2d 517 (4th Cir. 1967). The burden of proving disability under the Act rests on the plaintiff. Sliger v. Richardson, 315 F.Supp. 1093 (W.D.Va. 1970), aff'd, 436 F.2d 1385 (4th Cir. 1971); Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966). This burden need not, however, be carried to a point beyond a reasonable doubt, Thomas v. Celebrezze, 331 F.2d 541, 545 (4th Cir. 1964); Ketron v. Finch, 340 F.Supp. 845, 849 (D. C.Va.1972). When a plaintiff shows that he is disabled from engaging in his former occupation, the burden shifts to the Secretary to come forward with a showing of other employment available to a person of plaintiff's age, education, work experience, skills, and physical limitations. Meneses v. Secretary of Health, Education, and Welfare, 143 U. S.App.D.C. 81, 442 F.2d 803 (1971); Hicks v. Gardner, supra, 393 F.2d at 301.

The plaintiff, Joseph Garrett, was born October 10, 1937. His formal education terminated in 1946 on the death of his mother. He testified that he was in school on and off through the third grade and that when he volunteered for the Army he was turned down, testing having shown him to have a second grade education level. He cannot read or write, and in the words of the hearing examiner, "claimant is illiterate". His earliest work experience was on a farm with his father who was a sharecropper. Plaintiff's work activity, from childhood until November 12, 1968, which he claims as the onset of his disability, has been unskilled common labor as a furniture mover/driver, janitor in a bottling plant, and as a metal baler in a scrap yard. He testified that subsequent to the onset of his disability he attempted to work picking up paper and litter with a stick but after two weeks he had to quit. Plaintiff is married and has four children, all under eighteen (18) years of age, and that from time to time his mother-in-law stays with his family which occupies a 7-room house which he rents.

Plaintiff alleges the onset of his disability to be November 12, 1968, at which time he was injured when a refrigerator or freezer he was moving in the course of his employment fell on him. In his applications for disability benefits he complains of internal injuries, back, stomach, and kidney trouble, apparently all stemming from the 1968 accident. He was hospitalized for three days, November 28-30, 1968, for evaluation of right lower quadrant pain and a history of passing blood in his urine. The records from the Greenville Hospital System indicated finding of "Probable muscle strain superimposed upon underlying prostatitis." A small ureterocele on the left, without any significant obstruction was found but considered not to be related to the injury for which he was hospitalized. Antibiotics were prescribed, and in closing it was indicated that "No permanent disability is to be anticipated." On October 16, 1969, Dr. John Evans¹, a urologist, forwarded copies of the hospital records and urological examination to the Social Security Administration, and indicated that plaintiff;

Has a prostatitis but I am unable to account for all his symptomatology based on this alone. Because of this he was referred to Dr. Keith Blincow. I do not have copies of Dr. Blincow's reports available.

There is a notation on the hospital records which indicates that on May 6, 1969, copies were sent to Dr. Blincow. Dr. Blincow's reports are not a part of the record before this court.

On October 17, 1969, a report was submitted by Dr. R. E. Gregory² which summarized visits to him by the plaintiff commencing on January 14, 1969 when plaintiff was seen for an upper respiratory infection, bronchitis. On February 27, 1969 plaintiff was seen for the second time, complaining of dizziness which Dr. Gregory interpreted to be labyrinthitis, (an infection of the inner ear) and was seen on July 21, 1969 with the same condition. At...