Halsey v. Richardson

• Decision Date: 04 May 1971
• Docket Number: No. 20472.,20472.
• Parties: Edward W. HALSEY, Plaintiff-Appellant, v. Elliott L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

441 F.2d 1230 (1971)

Edward W. HALSEY, Plaintiff-Appellant, v. Elliott L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 20472.

United States Court of Appeals, Sixth Circuit.

May 4, 1971.

Frank J. Neff, Columbus, Ohio, for appellant; Barkan, Barkan & Neff, Columbus, Ohio, on brief.

Gary T. Brinsfield, Columbus, Ohio, for appellee; William W. Milligan, U. S. Atty., Alvin J. McKenna, Asst. U. S. Atty., Columbus, Ohio, on brief.

Before EDWARDS and CELEBREZZE,^* Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

O'SULLIVAN, Senior Circuit Judge.

We consider the appeal of Edward W. Halsey from a summary judgment entered on March 6, 1970, which affirmed termination by the Secretary of Health, Education and Welfare of social security disability benefits which appellant had been theretofore receiving. Judgment was entered upon an opinion of Honorable Joseph P. Kinneary, United States District Judge, sitting in the District Court for the Southern District of Ohio, Eastern Division. The question before us is whether the District Court erred in finding that the Decision of the Secretary, affirming a trial examiner's decision, was supported by substantial evidence.

We affirm.

This matter has had a long history. Halsey suffered a back injury on February 17, 1959, while helping to unload a truck. He fell backward, landing on his hip, and a crate of frozen meat which he had been unloading fell on him. X-rays then taken disclosed a detachment of a laminal arch. Surgery was recommended, but Halsey refused it until July of 1960. A diagnosis was then made of a herniated intervertebral disc involving the lumbo-sacral spine. Surgery was then performed consisting of a trans-abdominal interbody fusion of the lumbosacral joint. In September of 1960, upon inquiry by the Ohio Bureau of Vocational Rehabilitation as to Halsey's post-operative progress, a Doctor Lester Lasky, Halsey's treating doctor upon whom Halsey places chief reliance, replied:

"Spinal fusion of this type requires approximately 6 to 8 months to become solid and about another 6 months to mature. Thus far Mr. Halsey\'s progress is satisfactory. Prognosis reasonably good."

Except for a period of rehabilitation training with the Goodwill Industries of Zanesville, Ohio, in the year 1966, Halsey has not worked for wages since his 1959 injury and his 1960 surgery. During a time prior to his obtaining social security benefits in 1963, he reported to one examining doctor that he was receiving $160 per month from the Ohio Industrial Commission (Workmen's Compensation) and "what I can get off the welfare" which amounts to $62.00 monthly. This doctor's report was dated September 22, 1962, and under diagnosis mentioned:

"Psychoneurotic Disorder — conversion reaction. During examination patient gave no objective sense of pain. It is also felt that examination revealed element of unconscious or even conscious compensation seeking. It is my feeling that patient\'s symptomatology is an external substitute for his unconscious dependency needs."

We have early set out this quotation because like suggestions of Halsey's attitude appear in several reports of psychiatric examinations that were made over the years of appellant's persistence in seeking social security benefits. Halsey was 42 years old at the time of his 1959 accident, was married and the father of six children. He had completed a high school education and had worked at farming, coal mining, drill press operation, turret lathe operation, grinder in a machine shop, janitor and laborer in a packing plant, school bus driver, timber cutter, and coal truck driver.

Although his disabling accident occurred in February of 1959, his first application for benefits was filed on June 27, 1960. He therein described his impairment as "back injury." Medical examinations were had and investigation made following Halsey's application. The department notified him on several dates that he did not qualify for benefits. At Halsey's request his matter was reconsidered on several occasions. Denials by HEW continued. On June 19, 1964, he was again notified that upon reconsideration this Department determined that Halsey was not entitled to benefits. He was told of his right to have a hearing before a hearing examiner and of the time within which he would have to make a request for such hearing. Numerous reports of medical examinations had been received by the Secretary as part of its reconsideration of Halsey's claims.

Notwithstanding a tardy request therefor, Halsey was granted a hearing before an examiner, at which he was represented by counsel. This was held on February 9, 1965, and on March 28, 1965, the examiner determined that Halsey had not established entitlement to benefits between the time of his accident on February 27, 1959, and the date of March 1, 1963. It was his opinion, however, that Halsey's physical impairments in combination with psychoneurotic disorder had by March 1, 1963, so developed that as of that date he could not engage in any gainful employment. His findings included the following:

"(4) The physical impairments of the claimant as of the last mentioned date, however, that could be considered medically determinable, when coupled with his psychoneurotic disorder, constituted `disablement\' within the meaning of the cited statutes;

"(6) Mr. Halsey\'s favorable age, however, and his seeming desire to be helped calls for all steps possible to be taken to assist in the rehabilitation that hopefully will prepare him in the indefinite future to return to light or moderate work activity; and

"(7) It is recommended the claimant be immediately offered rehabilitative help and that at least a yearly diary of investigation and possible examination in his case be maintained."

Consistent with the foregoing, HEW arranged for Halsey to submit himself to rehabilitative services of the Goodwill Industries of Zanesville, Ohio. A report from this agency dated July 27, 1966, contained the following:

"He is showing more confidence every day and we feel sure that this person is physically able to perform the tasks required to be a good small appliance repairman. The only problem we see is a possible mental incompetency where he is concerned. `Does he feel he can do this?\' `Does he genuinely want to rehabilitate himself?\'"

Halsey gave up his work at Goodwill Industries. He testified that he quit his work at Goodwill Industries because of pain and nervousness, and that at times he felt like throwing the appliance upon which he was working out of the window. HEW made further investigation of Halsey's continued claims of disability, including orthopedic and neurological examinations by qualified and neutral experts.

One of these, Dr. Robert B. Larrick, an orthopedic surgeon, reported on an examination conducted on October 20, 1967. After reviewing Halsey's assertion of disability, this report contained the following:

"In evaluation of this patient, he gives a history of several injuries, the last of which was 8 years ago. The objectively positive findings are the 1" atrophy of the proximal left thigh, the evidences of surgical scars, and the x-ray findings. The limitations of back motion on request are incompatible with observed activities such as his ability to assume the long seated position. On unannounced observation, he demonstrates an overall functional range of motion of between 50 and 75% at least. The `weakness\' in his legs is incompatible with observed activity such as getting on and off the table, having negative Trendelenburg test, and retaining his ability to walk on his heels and toes. If the `weakness\' were real, he could not even stand, much less walk. His gait improved remarkably on unannounced observation also.

"Regarding your specific questions, his mental attitude toward work appears to this examiner to be one of indifference and lack of interest. His overall residual functional capacity for work should be adequate for sustained light or medium activities that do not require excessive motion of or throw excessive strain on the low back and/or the lower extremities. His abilities to stand, walk, dress, undress, and get on and off the examining table are not more than minimally impaired. There was no opportunity to observe lifting, but on the basis of the history and the x-ray evaluation, this should be restricted to light lifting of 25 to 35 lbs. or less, depending upon the position in which the lift must be performed." (Emphasis supplied.)

Dr. Dwight M. Palmer of Columbus, Ohio, gave a report of a neurological and psychiatric examination of Halsey conducted on November 27, 1967. This report said:

"His thought content revealed that he was very much on the defensive side in terms of the psychiatric interview. He was evasive and resistive and frequently came up with statements such as, `They have all that information.\' He generally was vague in terms of specific medical material, whether it was in answer to questions about the nature of his `spells\' or as to the nature of his complaints. * * *

"Motor Aspect: His general attitude was that of a vague, irritable, unconcerned subject who wanted to argue with the examiner. When asked to describe his activities at home, he said, `I try to keep going, sit around or lay around, but I haven\'t been able to do any manual labor. I don\'t hold up for more than an hour.\' When the examiner pointed out to him that his palms were quite soiled and quite worn, he said they got that way, not from doing any manual labor, but from driving his car or helping his wife around the home. The only time he showed any emotion was when he talked with great resentment about the fact that he lost his farm to creditors.

"Discussion: A regular neurological examination of this man\'s nerves, spinal cord and brain have failed to reveal any evidence at all of neurological impairment. He complains about his lower back in a vague way but his pattern of

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