Garrett v. Richardson

• Citation: 471 F.2d 598
• Decision Date: 27 December 1972
• Docket Number: No. 72-1141.,72-1141.
• Parties: Leonard H. GARRETT, Appellant, v. Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

471 F.2d 598 (1972)

Leonard H. GARRETT, Appellant, v. Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Appellee.

No. 72-1141.

United States Court of Appeals, Eighth Circuit.

December 27, 1972.

J. D. Riffel, Kansas City, Mo., for appellant.

Stanton R. Koppel, Atty., Appellate Section, Dept. of Justice, Washington, D. C., for appellee.

Before HEANEY and STEPHENSON, Circuit Judges, and BOGUE,^* District Judge.

BOGUE, District Judge.

Leonard H. Garrett applied for Social Security disability benefits under 42 U. S.C. §§ 416(i), 423, on May 7, 1970, claiming that he had been unable to work since November 7, 1969. The claim was denied on August 17, 1970, and on reconsideration, the original denial was affirmed. On December 14, 1970, Garrett 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 then appealed to the Appeals Council who declined review, adopting the hearing examiner's opinion. By complaint filed in the United States District Court for the Western District of Missouri, Garrett sought to overturn this "final decision" by the Secretary of Health, Education and Welfare. Upon Motions for Summary Judgment by both parties, the district court, 337 F.Supp. 877, concluded that substantial evidence existed in the record to support the administrative determination. This appeal followed.

Appellant, who was fifty-nine years of age at the time he became unable to work, is married with no children. After attending third grade, he worked at various odd jobs, the majority of which involved hauling wood, until his entrance into the army in 1942. After five months and a slow recovery from a hemorrhoid operation, appellant received a disability discharge from the army, whereupon he again engaged in odd jobs, hauling wood. On August 29, 1950, appellant commenced work with the Missouri Portland Cement Company, first as a laborer, later as a carpenter, and had reached the level of head carpenter earning $4.36 per hour when he became unable to work.

On November 9, 1969, after having sneezed or coughed, appellant started bleeding profusely through his mouth and nostrils. He was placed in a hospital on that date where he remained for five days. Appellant has not returned to work since November 7, 1969.

This Court has repeatedly set out the legal standards applicable to appeals of this kind, commencing with Celebrezze v. Bolas, 316 F.2d 498, 500-501 (8th Cir. 1963), and thereafter in Celebrezze v. Sutton, 338 F.2d 417 (8th Cir. 1964); Brasher v. Celebrezze, 340 F.2d 413, 414 (8th Cir. 1965); Marion v. Gardner, 359 F.2d 175, 179-180 (8th Cir. 1966); Nichols v. Gardner, 361 F.2d 963, 964 (8th Cir. 1966); and Easttam v. Secretary of Health, Education and Welfare, 364 F.2d 509, 511 (8th Cir. 1966). Those standards are:

"* * * (a) the claimant has the burden of establishing his claim; (b) the Act is remedial and is to be construed liberally; (c) the Secretary's findings and the reasonable inferences drawn from them are conclusive if they are supported by substantial evidence; (d) substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (e) it must be based on the record as a whole; (f) the determination of the presence of substantial evidence is to be made on a case-to-case basis; (g) where the evidence is conflicting it is for the Appeals Council on behalf of the Secretary to resolve those conflicts; (h) the statutory definition of disability imposes a three-fold requirement (1) that there be 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 not less than 12 months,¹ (2) that there be an inability to engage in any substantial gainful activity, and (3) that the inability be by reason of the impairment; (i) such substantial gainful activity is that which is both substantial and gainful and within the claimant's capability, realistically judged by his education, training, and experience; (j) the emphasis is on the particular claimant's capabilities and on what is reasonably possible, not on what is conceivable; and (k) it is not the duty or the burden of the Secretary to find a specific employer and job for the claimant but, instead, some effort and some ingenuity within the range of the claimant's capacity remains for him to exercise." Brasher v. Celebrezze, supra, 340 F.2d at 414.

The controlling evidence in this case is that adduced before the hearing examiner. That evidence consisted of a medical report dated January 19, 1967, directed to the General American Life Insurance Company, St. Louis, Missouri, covering an examination by W. W. Woodward, M. D.; a medical report dated February 11, 1970 by Dr. Woodward; a medical report by L. W. Higgins, D. O., dated May 15, 1970; a medical report dated September 24, 1970 by L. A. Hollinger, M. D.; a medical report by Carleton J. Lingren, M. D., dated October 9, 1970; the various hospital records of the claimant; and the sworn testimony of appellant and appellant's wife before the hearing examiner.

Dr. Woodward, in his first examination of the appellant in 1967, made the following diagnosis:

"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."

Dr. Woodward concluded:

"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) 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."

Three years later and after appellant had ceased working, Dr. Woodward again examined appellant. After diagnosing recurrent and chronic bronchitis, the doctor stated:

"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 disclosed 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."

It should be noted that both of the examinations by Dr. Woodward were not made for the purpose of appellant's claim for disability benefits.

Appellant's personal physician, Dr. L. W. Higgins, in a report dated May 15, 1970, diagnosed Garrett's condition as emphysema, fibrosis and hemoptysis. This was the same diagnosis that Dr. Higgins made in November, 1969 when appellant was admitted to the hospital after having coughed up blood. The hospital records attached to the May 15 report included an X-ray report dated November 10, 1969, which indicated "emphysema in the upper lobes, gross thickening in the hilar areas and calcification in the hilar areas," and the possibility of silicosis. Dr. Higgins thus concluded, in a letter dated December 16, 1970, that "due to his physical condition I feel he is unable to work and have recommended retirement."

For the purpose of investigating appellant's claim, appellee selected Dr. L. A. Hollinger of Kansas City, Missouri to examine appellant. In a report dated September 24, 1970, Dr. Hollinger stated:

"In summary, 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 impairment. There would appear to be a considerable functional component to his complaint of dyspena and it is not substantiated by either pulmonary or cardiovacular 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."

Dr. Carleton J. Lindgren, a psychiatrist, was also retained by appellee to examine appellant. He concluded that appellant suffered from no...