Hennig v. Gardner, Civ. A. No. 3-1839.

• Decision Date: 14 November 1967
• Docket Number: Civ. A. No. 3-1839.
• Citation: 276 F. Supp. 622
• Parties: Jezebel F. HENNIG, Plaintiff, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Northern District of Texas

276 F. Supp. 622

Jezebel F. HENNIG, Plaintiff, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant.

Civ. A. No. 3-1839.

United States District Court N. D. Texas, Dallas Division.

November 14, 1967.

Mark Delk, Dallas, Tex., for plaintiff.

Melvin M. Diggs, U. S. Atty., Martha Joe Stroud, Asst. U. S. Atty., Dallas, Tex., for defendant.

OPINION

WILLIAM M. TAYLOR, District Judge.

This is a review of a final decision of the Secretary of Health, Education, and Welfare denying disability insurance benefits to the claimant, Jezebel F. Hennig. 42 U.S.C.A. §§ 405(g), 423. For the reasons hereafter stated, the decision of the Secretary is reversed and the proceeding is remanded for rehearing.

Mrs. Hennig filed her application for disability insurance benefits on November 6, 1964, stating that due to "heart trouble and arthritis" she had been unable to do any substantial work since June 30, 1963. On November 20, 1964, she changed the date of her initial disability to December, 1961. The Social Security Administration denied her application and she requested a hearing. The hearing examiner heard testimony from Mrs. Hennig and a friend of hers, and considered her medical records in arriving at the decision that she was not entitled to the insurance benefits. The Secretary, on appeal from the examiner's ruling, affirmed his decision.

The hearing examiner found that the last day on which Mrs. Hennig met the special coverage requirements for disability benefits was June 30, 1963. 42 U.S.C.A. § 416(i). Any disability insurance to which she was entitled would therefore pertain to a period commencing on or before that date.

Based on the evidence adduced at the hearing, the examiner found that Mrs. Hennig was a 54 year old woman with a ninth grade education. She worked for one year picking turkeys, 2 years as a sewing machine operator in a bag factory, and 15 years as a power sewing machine operator in the garment industry. In 1958, she quit work to marry Mr. Hennig and has done no work since that time.

In 1961, Mrs. Hennig consulted a physician in regard to her health. Dr. Hugh F. Kohler diagnosed her ailments as "early congestive heart failure and chronic joint pain." He prescribed medicinal relief and told her "never to be without her medicine." She has continued to this time to take that medicine. In March, 1964, Mrs. Hennig went to a Dr. John Stack. She was treated by Dr. Stack from March until November, 1964, for, among other things, "arthritis, osteoid type, of hips and lumbar spine." She was told by one of these physicians "not to go shopping, to do no lifting, and not to do anything at all that she did not have to do." The record is not clear as to who told her this or when she was so instructed.

Testifying on her own behalf, Mrs. Hennig said of her arthritis, "Well, at times I just can't get down or up. I can't hardly move my legs. In my right shoulder and my right knee, and in the lower part of my back."

Eloise Wherry, a neighbor of the claimant, testified that Mrs. Hennig could not walk more than a half block without getting out of breath; that she can hardly stand up or sit down because her back bothers her; that she can do no ironing; and that her legs and feet swell up so that it is difficult for her to walk.

On appeal from the examiner's decision, the Secretary considered two items of evidence which were not before the examiner. The first of these was a report by Dr. Stack, dated July 25, 1966, in which he stated that the claimant suffered from arthritis of the hip joints, lumbar spine, limbs and chest wall and further from emphysema. Due to these infirmities Mrs. Hennig was, in the opinion of Dr. Stack, prevented from "engaging in substantial gainful employment." The second item of evidence was a report from a Dr. Joy Robertson, a medical consultant for the Social Security Administration, which reflects that on December 4, 1964, the claimant, according to Dr. Robertson, had "full weight bearing capacity and normal range of motion of both hips and lumbar spine.¹

In concluding that the claimant was not entitled to disability insurance the Secretary stated,

From the evidence as presently documented, there is no record of treatment from December, 1961 to March, 1964. During this period, which covers the time through June 30, 1963, the evidence fails to establish any impairment which would have prevented the claimant from performing her usual work as a sewing machine operator.

It is apparent from the Secretary's decision, as well as the hearing examiner's, that the denial of the insurance benefits to the claimant was predicated on two grounds: (1) the lack of medical evidence from December, 1961 to March, 1964 to substantiate her contentions, and (2) the inability of Mrs. Hennig to satisfy her statutory burden of proof.

The elements of proof in a 42 U.S.C.A. § 423 proceeding are (1) the objective medical facts; (2) the diagnoses of these facts; (3) the subjective...