Hayes v. Celebrezze

• Decision Date: 03 January 1963
• Docket Number: No. 19630.,19630.
• Citation: 311 F.2d 648
• Parties: Thomas O. HAYES, Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education, and Welfare, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

311 F.2d 648 (1963)

Thomas O. HAYES, Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education, and Welfare, Appellee.

No. 19630.

United States Court of Appeals Fifth Circuit.

January 3, 1963.

COPYRIGHT MATERIAL OMITTED

James L. Shores, Jr., Birmingham, Ala., Clarence F. Rhea, Gadsden, Ala., for appellant.

Macon L. Weaver, U. S. Atty., Birmingham, Ala., Stanley M. Kolber, Atty., Dept. of Justice, William H. Orrick, Jr., Asst. Atty. Gen., Alan S. Rosenthal, Atty., Dept. of Justice, Washington, D. C., for appellee.

Before RIVES, CAMERON and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The question raised on this appeal is whether there is substantial evidence to support a determination by the Hearing Examiner of the Department of Health, Education and Welfare that Claimant Hayes was not entitled to Social Security disability benefits. Our answer is in the negative and therefore we reverse the decision of the District Court upholding the Secretary's determination.

A brief statement of Claimant's background is helpful. He was born in 1898. He attained a fifth grade education and is able to read and write "a little — not too well"; he can get the general understanding from newspapers. Claimant was in World War I and is presently receiving a non-service connected disability pension from the Veterans Administration.

Claimant has spent his entire life doing manual labor. He was raised on the farm, worked in a foundry, on "public works," in a sawmill and then returned to the foundry. He worked as a molder, pouring iron and lifting heavy molds. Claimant remained there until 1952 when he was forced to go to the hospital. Upon his release and on advice of his doctor he obtained a lighter job in the foundry which he kept until April 1957. At that time, so he states, he was advised by his personal doctor either to quit work or quit living.

In November of 1957, Claimant filed application for disability freeze and disability benefits, 42 U.S.C.A. §§ 416, 423. He asserted that his condition satisfied the statutory test of an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration." 42 U.S.C.A. § 423(c) (2). His application was administratively denied and Claimant requested a hearing. After a consultative examination arranged by the State Agency, the Alabama Division of Vocational Rehabilitation found that Claimant was not totally disabled. It is ironic, Claimant contends, that although this was their finding, they refused to accept him for vocational rehabilitation because his physical "(a) impairment was too severe," and there were "(b) no employment opportunities" for one in his condition. A formal hearing was then held. After hearing the testimony of Claimant and considering the medical evidence, all of which was in the form of written reports, the Hearing Examiner found that Claimant was not totally disabled. This decision became final upon a denial of review by the Appeals Council.

Claimant then sought relief from the District Court, 42 U.S.C.A. § 205(g). That Court affirmed the agency findings with the determination that these findings were supported by substantial evidence.¹ Claimant then brought this appeal.

At this point, we see no need for a lengthy discussion of the standards applicable when courts deal with administrative determinations. The statute provides that "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, * * *." 42 U.S.C.A. § 405(g). The question of what amounts to substantial evidence is a matter of law for the reviewing court to determine upon a considered evaluation of the whole record. Efforts to verbalize the process are seldom helpful since the standard is question-begging, with all quite clear once the conclusion is reached. Cf. Texas Eastern Transmission Corp. v. F. P. C., 5 Cir., 1962, 306 F.2d 345, 347; Hattaway v. United States, 5 Cir., 1962, 304 F. 2d 5, 9. Occasionally the problem is directly likened to the acceptance or rejection of jury verdicts. At other times it is in terms that substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." N. L. R. B. v. Columbian Enameling & Stamping Co., 1939, 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660. Of course one thing of critical importance is the nature of the proceeding. That makes it essential to bear in mind what Judge Friendly emphasized in Kerner v. Flemming, 2 Cir., 1960, 283 F.2d 916, 921-922, that these so-called records lack much of the formal comprehensive attributes of a typical administrative record.

The record contains reports of four physicians who examined Claimant in connection with his claim. Two of these were personal physicians who had known Claimant for some years. The other two examined Claimant as consultants at the request of the State Agency. No two of the four doctors were in agreement as to the exact nature of Claimant's impairment. However, one fact is paramount — each doctor found that Claimant had a substantial impairment.

A brief consideration of these reports reflects the impression we gain that in his treatment of ostensibly conflicting medical reports, the Examiner made some crucial findings which are really not supported at all in the record, and furthermore did not really resolve these conflicts.

We begin with the report of Dr. Watts who treated Claimant intermittently from 1952 until the time of his examination in November 1957. At that time Dr. Watts found him to be suffering from a slowly progressive condition of severe hypertrophic arthritis and bronchiectasis. Dr. Watts found this arthritic condition to extend throughout the entire spine, shoulders and knees, causing marked limitation of motion in the spine. Dr. Watts was emphatic that he had advised Claimant not to work.

As we shall later see, the Examiner's decision does not really treat with this as a medical proposition. This is emphasized by the substantially parallel finding of "osteoarthritis of the entire spine" in the consultative report of Dr. Holland which the Examiner in no way discredits. As to this we have the strong impression that the Examiner was laboring under the approach which the Secretary's brief in this Court importunes us to take. The Secretary persists in the notion that no matter how painful in fact this must be, it does not satisfy the statute since this is one of life's burdens. Supporting this the brief lays stress on the words from Adams v. Flemming, 2 Cir., 1960, 276 F.2d 901, 904, that "Judicial notice can be taken of the fact that * * *. There are undoubtedly millions of people suffering daily from some infirmity: * * * those whose arthritic and rheumatic symptoms flare up and subside; * * * and those who suffer from various spinal ailments and discomforts." Responding to a like argument, this Court in Butler v. Flemming, 5 Cir., 1961, 288 F.2d 591, 595, in the plainest of terms rejected as out of keeping with legislation whose "* * * purpose * * * is to ameliorate some of these rigors that life imposes," the ideas once expressed by Judge Hand in Theberge v. United States, 2 Cir., 1937, 87 F.2d 697, 698.

After the first adverse determination by the State Agency, Claimant requested reconsideration and in support of it submitted the report of Dr. Leyden of April 7, 1959. This report reflects that Dr. Leyden had first examined Claimant in 1957, had been treating him for heart disease which he currently found to be progressive. The diagnosis was that Claimant was suffering from hypertensive heart disease with marked angina cyanosis. He, as did other doctors, found a "huge enlarged heart." The condition was diagnosed by him as progressive and "very little, if any," improvement can be expected. The doctor stated Claimant "is unable to walk up steps, unable to hoe, or sweep" and that "he has angina on slight exertion." His positive conclusion was that Claimant was "totally disabled to work, unable to climb steps, run or face wind and walk."

During this reconsideration the State Agency referred Claimant to Dr. Holland for a consultative examination and report. While his report revealed that "* * * there is no limitation in motion or movement of the spine," he went on to acknowledge that Claimant "* * * states that * * * pain is elicited in the lower back and upper thorasic and cervical region on extreme motions." Indicating strongly that the doctor credits the general truthfulness and reliability of Claimant, the report then states that he "* * * is extremely cooperative in these tests and makes an effort to go through the motions, even though it apparently does give pain." In addition, the report found that "electrocardiogram is consistent with old posterior myocardial infarction." The report concluded with this opinion which, for reasons later discussed, we think highly significant:

"OPINION: I feel that this man has: 1. osteoarthritis of the entire spine. 2. arteriosclerotic heart disease, functional Class II, but I doubt if the chest pain described above is due to angina pectoris. In regard to the points of requested emphasis not covered above: a. Response to therapy — He apparently has not been too greatly benefited as far as the back pain or chest pain is concerned. b. Estimate work tolerance — This is difficult to evaluate since his complaints are not well substantiated objectively, but if they be true, it would be difficult for him to pursue any type of manual labor."

The State Agency again redetermined that Claimant was not disabled. In connection with the requested Examiner's hearing, the Agency arranged for him to be examined by another consultant, Dr. Hawley, on November 10, 1959. This report describes his usual complaints of pain on exercise, but physical examination was essentially negative. The...