Henry v. Gardner

• Decision Date: 19 July 1967
• Docket Number: No. 17171.,17171.
• Parties: Carl V. HENRY, Plaintiff-Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

381 F.2d 191 (1967)

Carl V. HENRY, Plaintiff-Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 17171.

United States Court of Appeals Sixth Circuit.

July 19, 1967.

H. H. Gearinger, of Gearinger & Vineyard, Chattanooga, Tenn., for appellant.

Thomas A. Williams, Asst. U. S. Atty., Chattanooga, Tenn. (J. H. Reddy, U. S. Atty., Chattanooga, Tenn., on the brief), for appellee.

Before WEICK, Chief Judge, COMBS, Circuit Judge, and CECIL, Senior Circuit Judge.

CECIL, Senior Circuit Judge.

This is an appeal from an order of the District Court for the Eastern District of Tennessee, Southern Division, affirming the Secretary's denial of appellant's application seeking a period of disability and disability benefits under Section 416(i) and 423, Title 42, U.S.C.

On December 12, 1963, Carl V. Henry, the appellant herein, applied for disability benefits, alleging that he became disabled on December 3, 1953.¹ The appellant's insured status terminated on June 30, 1954. It is unquestioned that at that time the appellant was disabled within the meaning of the Act by reason of tuberculosis. Because appellant's insured status terminated on June 30, 1954, it was incumbent upon the appellant to prove that beginning on or before that date he was continuously disabled until at least twelve months prior to filing his application. Section 416 (i) (2) (E), Title 42, U.S.C., states that no application for disability benefits shall be accepted if filed more than twelve months after the period of disability ends.

Appellant was born in 1920, and received a sixth grade education. Beginning in 1937, appellant worked at various jobs in the coal mines, including digging, dynamiting and handling coal. Prior to 1946 he also worked outside the mines as an operator of coal loading machines and caretaker of the battery lights for coal miners' belts. He has been a molder's helper, pouring molten iron around molds to make cast iron pipes and has worked for a sawmill. He last worked as an assembler and crater of stoves, leaving the job in December 1953, after eight months' employment. Other than one unsuccessful attempt to regain this lost position, the record reveals no other evidence of any attempts by appellant to secure employment.

Appellant was admitted to the Tennessee Tuberculosis Hospital on January 11, 1954, with a diagnosis of active minimal pulmonary tuberculosis, involving the right apex. Appellant was placed on drug therapy, and on May 25, 1954, a segmental resection involving the right upper lobe was done. Appellant was discharged from the hospital on July 11, 1954, but continued to receive drug therapy until June 10, 1957. Upon his discharge from the hospital in July, 1954, appellant's sputum analysis was negative and his condition was described as "minimal pulmonary tuberculosis; apparently arrested. Marked improvement with segmental resection." Following his release, appellant was x-rayed three to five times a year, until February 3, 1958. Beginning on February 25, 1955, the x-rays revealed that the tubercular condition was arrested, and Dr. E. F. Harrison, medical director of the Tennessee Tuberculosis Hospital, noted that "it would seem perfectly safe for the individual to begin to do some form of light work in which only a minimal amount of physical exertion is involved." Following the next examination of appellant, on July 8, 1955, Dr. Harrison stated that it was "perfectly safe" for appellant to do light work. Beginning April 23, 1956, the x-rays revealed that appellant's tubercular condition was "inactive". The hospital records in addition to noting the inactive state of appellant's condition, thereafter also contain various complaints of nervousness, hacking cough, and chest and stomach pains. Following appellant's x-ray check and examination of February 3, 1958, there is no record of appellant ever having seen a doctor until June 5, 1961, when he was again examined by Dr. Harrison at the Tennessee Tuberculosis Hospital, out-patient clinic. The x-rays again indicated that this tubercular condition was inactive. Dr. Harrison stated on July 11, 1961, that "so far as this man's pulmonary tuberculosis was concerned, it is believed it is perfectly safe for him to work full time at most any form of work." Two later x-ray examinations, on June 4, 1962, and June 17, 1963, also revealed that appellant's tubercular condition was inactive. The inactive status of appellant's tubercular condition was confirmed by Dr. William G. Shull, a general practitioner, in his report dated July 4, 1961. The report added that the appellant sighed a great deal, had dizzy spells and blackouts, had pain in both shoulders and upper chest, down to the thumb. Dr. Shull stated that appellant's activity tolerance was very slight.

Dr. Mabe submitted a report, dated August 30, 1963, stating that the appellant was hospitalized in 1961 and from May 21, 1962 to June 1, 1962. He diagnosed the appellant as suffering from "mild pulmonary emphysema, chest pain secondary to his old pulmonary surgery and peripheral neuritis, all of which makes it difficult for him to perform gainful occupation for which he would be qualified." In a later report dated January 14, 1964, Dr. Mabe's diagnosis was pulmonary emphysema, asthmatic bronchitis, and intercostal neuritis. He added that a good part of appellant's pulmonary disorders were related to his excessive smoking, which appellant refused to curtail. In a letter to appellant's attorney, dated February 1, 1965, Dr. Mabe speculated that 50% of appellant's disability was related to his tuberculosis. There is little doubt that appellant's emphysema and intercostal neuritis were residual effects of the tuberculosis and his lung resection surgery. Dr. Mabe testified at the hearing before the examiner that there was a 90% chance that the bronchitis would have developed without the tuberculosis. He felt that the bronchitis could be treated and improved by medication. When appellant first visited Dr. Mabe, his emphysema was only in a moderate stage. He could not relate the severity of the emphysema or its accompanying symptoms back to June, 1957, when the tuberculosis drug therapy was discontinued. Dr. Mabe further testified that although appellant could not perform any strenuous employment, he was physically capable of performing certain sedentary jobs and other jobs which required standing and lifting of not more than ten pounds, two or three times an hour, as long as the atmosphere in which it was done did not contain lung irritants.

Dr. Maurice S. Rawlings, a board certified specialist in internal medicine and cardio-vascular diseases, stated at the hearing, after reviewing the medical reports submitted in the case, that the appellant suffered from minimal tuberculosis which was inactive. Dr. Rawlings testified that there was not enough evidence in the reports for him to determine whether appellant was suffering from emphysema. He further stated that following a removal of a part of a lung, the remaining lung functions are generally very good. He did not believe that the bronchitis was related to the tuberculosis. He felt that both the bronchitis and the intercostal neuritis could be remedied by medication and treatment. He expressed his opinion that the appellant could engage in light work requiring standing as long as it was not necessary to lift weights greater than ten to fifteen pounds more than three to four times an hour.

Based upon this record, the hearing examiner concluded that the appellant did not establish a period of disability to qualify for disability benefits. He held that the appellant "was not continuously disabled since his original impairment and that he even now retains a capacity for sedentary or light work." The hearing examiner further held that the appellant was not presently disabled because the intercostal neuritis and...