Hicks v. Flemming, 19307.

• Decision Date: 21 May 1962
• Docket Number: No. 19307.,19307.
• Citation: 302 F.2d 470
• Parties: Percy F. HICKS, Appellant, v. Arthur S. FLEMMING, U. S. Secretary of Health, Education and Welfare, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

302 F.2d 470 (1962)

Percy F. HICKS, Appellant, v. Arthur S. FLEMMING, U. S. Secretary of Health, Education and Welfare, Appellee.

No. 19307.

United States Court of Appeals Fifth Circuit.

April 19, 1962.

Rehearing Denied May 21, 1962.

Percy F. Hicks, New Orleans, La., for appellant.

Gene S. Palmisano, Asst. U. S. Atty., New Orleans, La., for appellee.

Before JONES, WISDOM, and GEWIN, Circuit Judges.

WISDOM, Circuit Judge.

The claimant, Percy Hicks, appeals from a summary judgment affirming an administrative decision that denied his application for disability insurance benefits under the Social Security Act. The question presented is whether substantial evidence supports the determination that Hicks was not under a "disability" within the meaning of 42 U.S.C.A. §§ 416 (i) and 423. We affirm.

Hicks is fifty-five years old. He left school in the eighth grade at the age of fourteen and took a job in the merchant marine. He followed the sea for more than twenty years. In January 1945 he became ill and was admitted to the United States Marine Hospital at New Orleans. Doctors there diagnosed his condition as "pneumococcus lobar pneumonia; empyema, right lower lung following pneumonia" (accumulation of pus between chest cavity and lung). A thoracoplasty was performed (removal of ribs to collapse diseased parts of the lung), and in May Hicks was transferred to the out-patient department. A month later he was readmitted to the hospital because of a persistent draining sinus in the wound where his skin had been cut open for the chest surgery. He stayed in the hospital until July 18 when he was discharged, but he was back again July 30. This time the diagnosis was: "infected wound of skin, post operative; sinus of right thorax following thorocotomy; partial abscess of 3rd, 4th, and 5th ribs, right following operation". He remained hospitalized through April 1946 when he again was transferred to the out-patient department. Throughout this period he was classified as disabled and not fit for duty. March 4, 1947, Hicks was permanently discharged from the out-patient department; his condition was described as "fit for some type of light inside duty."

Unable to follow his former work, Hicks received vocational rehabilitation from the Louisiana Department of Health beginning April 20. A doctor who examined him in connection with his vocational training noted: "Client expresses interest in doing mechanical work with his hands. Preference in the electrical appliance line. Client has good use of fingers and gross arm-hand movement of both hands and eye-hand coordination is good. He is in the lower quartile in speed, however, in these manipulations become improved with practice. sic." In September he obtained a job at an automobile electrical shop in New Orleans where he performed a variety of odd jobs such as sweeping out the shop, insulating armatures, and operating small lathes. He worked a forty-hour week and was paid $26 a week. This lasted for nearly two years until he was laid off in June 1949. The State of Louisiana, Division of Vocational Rehabilitation reported: "Hicks was dismissed because of a reduction in force. An offer to help the client was made but he did not respond. Follow-ups were made over the next several months without success, or interest on the part of Mr. Hicks. Case was closed 2-13-50." Hicks applied for and received unemployment compensation.

Sometime in the next year or two he found a job as a dealer in a poker game at a bar and pool room and worked there for a few months. He was laid off temporarily but later was rehired, and he worked an additional two or three months before being again laid off. While he was employed, he worked eight hours a day, six days a week and was paid five dollars daily. Each time he was laid off because business was slow, though he testified that he was constantly bothered by asthma, coughing, and shortness of breath. For a while Hicks again received unemployment compensation. Thereafter he had no income of his own. In September 1957 he filed this application for disability payments. Hicks pushed his case through a series of administrative hearings, decisions, and appeals. At each point he was found not to be under a disability within the meaning of the Act. Finally he appealed to the district court where his claim met with an early defeat, and then, still persisting, he brought his case here for review.

Section 416(i) defines the term "disability" as 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 * *." The nub of this case is whether Hicks is able to engage in "any substantial gainful activity." Hicks testified that his present condition is the same as it was when he left the United States Marine Hospital in 1947, and the medical testimony indicates that this is true.¹ At a hearing on his application Hicks described his illness as an inability to sleep at night from coughing, because of his asthma and a susceptibility to coughing resulting in dizziness and shortness of breath if he overexerted himself. Hicks lives by himself, takes care of his personal needs, and walks without assistance. He spends much of his time reading reports of old trials. Dr. Emile Block, who examined Hicks April 5, 1946, testified that, unless complications had developed in Hicks'...