Garrett v. Richardson, Civ. A. No. 19652-2.

• Decision Date: 27 January 1972
• Docket Number: Civ. A. No. 19652-2.
• Citation: 337 F. Supp. 877
• Parties: Leonard H. GARRETT, Plaintiff, v. Elliott L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Western District of Missouri

337 F. Supp. 877

Leonard H. GARRETT, Plaintiff, v. Elliott L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant.

Civ. A. No. 19652-2.

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

January 27, 1972.

Harvey L. McCormick, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for plaintiff.

Bert C. Hurn, U. S. Atty., Thomas H. Stahl, Asst. U. S. Atty., for defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND JUDGMENT AFFIRMING DECISION OF DEFENDANT

COLLINSON, District Judge.

This is a proceeding for review of a disability determination made by defendant adversely to plaintiff on May 10, 1971, pursuant to 42 U.S.C. § 405 (g).

Garrett applied for disability benefits on May 7, 1970, claiming that he had become unable to work on November 7, 1969, because of "Arthritis of spine, Emphesema sic, Bronochial sic Asthma." The claim was denied on August 17, 1970; and reconsideration was denied on November 14, 1970. On December 14, 1970, plaintiff filed a Request for Hearing, which was held on February 11, 1971. On February 25, 1971, the hearing examiner entered his order denying the claim. Plaintiff appealed to the Appeals Council, who declined review adopting the hearing examiner's opinion. The instant action was filed on August 24, 1971.

Both parties have filed motions for summary judgment, an appropriate means of bringing this matter on for decision. See Johnson v. Gardner, (C.D. Cal.) 284 F.Supp. 230, 233, and cases cited therein.

HISTORY AND MEDICAL EVIDENCE

The plaintiff was born on March 3, 1910. He testified that he had been married for about 30 years and that he had no children. He and his wife live in a rented three-room house in Sugar Creek, Missouri. Plaintiff stated that he attended the third grade, but did not know whether or not he had completed it. Prior to entering the Army in 1942, and after being discharged, Garrett worked at a succession of odd jobs, the majority involving hauling wood. On August 29, 1950, plaintiff began work as a laborer at the Missouri Portland Cement Company. After three years he was transferred to the carpenter shop, where he shortly became head carpenter. His work there involved some heavy lifting and bending and the use of various power tools. He remained at that job until November 7, 1969, at which time he claims to have become disabled.

Plaintiff testified that since he has been unable to work, he spends most of his day lying on the divan at home watching television. He does no housework. Occasionally, he visits his brother-in-law and shops for groceries. He drives about three or four miles a day. Since 1969, he has taken one trip to Springfield, Missouri, in order to get his car painted.

Garrett stated that he "can hardly stand up. I can hardly walk. So weak"; that his legs "hurt so bad at night"; that his "ankles and face swell up;" and that he takes "ten or twelve different kinds of medicine."

Mrs. Garrett testified that her husband staggered around the house on occasion; and that he complained of pain in his knees, legs and back; that he was short of breath three or four times a day; and that he was nervous, as evidenced by shaking spells.

Garrett further testified that he was unable to do furniture refinishing, which he had done as a hobby before he became disabled; and that he is unable to walk for any distance.

Garrett stated that he has had arthritis of the spine for several years; but that his physician, Dr. Higgins, told him it was not the crippling kind; and that he has emphysema which causes him to be short of breath constantly.

Plaintiff stated that on November 9, 1969, when he went into the bathroom, he sneezed or coughed and started bleeding profusely through his mouth and nostrils; that he was hospitalized for a period of five days; and that since that time he has been unable to work.

W. W. Woodward, M.D., company doctor for Missouri Portland Cement, in a report dated January 19, 1967, diagnosed Garrett's condition as:

1. Chronic bronchitis.

2. Bronchospasm, secondary to number one with moderate dyspnea on heavy exertion.

3. Peripheral vascular disease with mild intermittent claudication.

4. Psychophysiologic reaction with anxiety syndrome.

Garrett's complaints at that time "were primarily shortness of breath and discomfort in his legs."

Dr. Woodward stated:

To the best of my ability to discern the patient's condition at this moment, I would not feel that he is totally disabled. It is certain that he has some limitation of heavy activity on the basis of his peripheral vascular disease and his bronchitis. I do not think Mr. Garrett is intentionally malingering, but feel that he is thoroughly convinced that his medical problems are of greater severity than can be measured objectively, and it sic quite concerned about the above mentioned symptoms. I can really see no objective reason why Mr. Garrett could not be gainfully employed, at least in a light to moderate job situation.

Garrett was re-examined by Dr. Woodward on February 3, 1970, who stated in a report dated February 11, 1970:

It is very difficult to judge just how incapacitated Mr. Garrett is. He has a quite evident recurrent and chronic bronchitis. He has very minimal evidence of air trapping, but no evidence of genuine emphysema of any real significance. He is subjectively, however, incapacitated; and I am sure that he certainly considers himself unable to work without conscious malingering. The lab evaluation discloses very little in the way of objective abnormality. The major findings are the retardation of his expiratory flow rate and relatively low first second vital capacity. While we see many people with pulmonary function studies worse than this, who are able to work, the subjective component of this illness is always prominent and the degree of respiratory insufficiency that he has is subjectively crippling to him.

I rather doubt that Mr. Garrett will be able to return to full-time employment in the sense of his feeling able to discharge the usual duties of his work. He objectively has sufficient evidence of disease to document abnormalities in the respiratory system. He has moderate evidence of peripheral vascular disease which is probably contributory. I believe he is a rather dependent personality and tolerates discomfort of various sorts rather less well than the average individual. With his personality type and these abnormalities in mind, I would suggest that he be placed on early retirement.

Garrett's personal physician, Leonard W. Higgins, D.O., submitted a report dated May 15, 1970, in which he diagnosed plaintiff's condition as "Emphysema, fibrosis and hemoptysis." He also submitted a copy of a hospital record showing that plaintiff was a patient at the Plaza Hospital from November 9, 1969 to November 14, 1969. An X-ray examination on November 10, 1970, indicated the existence of emphysema and the possibility of early silicosis.

A later report from Dr. Higgins dated September 1, 1970, diagnosed Garrett as having emphysema, fibrosis and hemoptysis, and kidney and bladder infection. In a letter dated December 16, 1970, Dr. Higgins stated:

Mr. Leonard Garrett has been under my care from November 7, 1969, for Hemoptysis, fibrosis and Emphysema, with limited vital capacity. Do sic to his physical condition I feel he is unable to work and have recommended retirement.

On September 22, 1970, plaintiff was examined by L. A. Hollinger, M.D., who, in a report dated September 24, 1970, stated that he had seen Garrett on a disability evaluation; that his chief complaint was "shortness of breath; and that his health generally "has been good." Plaintiff was given "an exercise tolerance test" which "he tolerated ... very well, showed only minimal dyspnea but did complain markedly of leg weakness." An interpretation of a Pulmonary Function Study revealed that:

The ventilatory study is abnormal demonstrating only a very minimal degree of airways obstruction. The lung volume study is abnormal and demonstrates a minimal increase in both the residual volume and total lung capacity. The arterial blood gas study demonstrates adequate alveolar ventilation with a mild respiratory alkalosis. Oxygen saturation is normal.

Chest X-rays revealed that none of the "radiological criteria for pulmonary emphysema" were present.

Dr. Hollinger summarized his findings as follows:

This patient does have a history compatible with chronic bronchitis with only the presence of minimal airways obstruction. He does describe episodes of acute bronchitis but these are very minimal and infrequent. There is no evidence at this time to substantiate a diagnosis of pulmonary emphysema. According to the A.M. A. Expert Committee for the rating of respiratory impairment this patient would be placed in Class 1 or zero per cent impairment. There would appear to be a considerable functional component to his complaint of dyspnea and it is not substantiated by either pulmonary or cardiovascular studies. I can therefore find no reason to place any restrictions on this patient's physical activities. His prognosis would appear to be good as far as his cardio-pulmonary status is concerned. It is my feeling that this patient should become more active, lose weight and, in turn, should note improvement in his complaints. At the present time there is no obvious reason why this patient could not be employed.

Finally, Garrett was seen by Carleton J. Lindgren, M.D., a psychiatrist, who,...