Hicks v. Gardner

Decision Date14 March 1968
Docket NumberNo. 11609.,11609.
Citation393 F.2d 299
PartiesDavid E. HICKS, Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

E. Carl Meadows, Jr., Beckley, W. Va. (Clay S. Crouse, Beckley, W. Va., and George B. Cooley, Hillsville, Va., on brief), for appellant.

William C. Breckinridge, Asst. U. S. Atty., for appellee.

Before SOBELOFF and CRAVEN, Circuit Judges, and MERHIGE, District Judge.

MERHIGE, District Judge:

This case comes before the Court by reason of the District Court's having upheld the decision of the Secretary of Health, Education and Welfare in his having sustained the hearing examiner who found that Hicks possessed residual capabilities which could be transferred to other jobs available in the local economy, resulting in the disallowance of the claim of David E. Hicks for Social Security benefits under Title II of the Social Security Act, as amended, (42 U.S.C.A. § 405(g)).

Claimant, a 54 year old mine worker, the father of six dependent children, commenced work in the mines at age 14. Four years thereafter, to-wit: on March 23, 1932, while so working, he was struck in the back by a piece of slate ten feet long, eight feet wide and eight inches thick, and of such a weight that it was necessary for his co-workers to use a lifting jack to remove it from his body. As a consequence of that injury, the claimant sustained multiple compression fractures about the spine and the pelvis, necessitating treatment over a period of some years and incapacitating him from work for six years.

In 1964 it was discovered that in addition to the permanent disability resulting from his injuries in 1932, he was suffering from an advanced stage of silicosis which resulted in a chronic pulmonary disease. In addition to the aforementioned infirmities, in 1944 he sustained an injury to his left hand resulting in partial residual impairment of the function of same.

Claimant has been found by the Virginia Workmen's Compensation Commission to be totally disabled.

The District Court affirmed the Secretary's finding that the claimant was capable of light sedentary work.

The record is uncontradictable that the plaintiff was under such disability as to preclude his return to his former occupation, i. e. work in the coal mines, and having once shown this the burden shifted to the Secretary to demonstrate that there were jobs available in the local economy which the claimant, considering his age, past experience and disability, was capable of performing. Boyd v. Gardner, 377 F.2d 718, 721 (4th Cir. 1967.) See also, Carico v. Gardner, 377 F.2d 259 (4th Cir. 1967).

This Court finds that the Secretary's conclusions adopted by the District Court are not, in fact, supported by substantial evidence in reference to the claimant's residual capabilities. Having so found, it is immaterial whether there were jobs available in the local economy which the claimant would be capable of performing. We find that both the Secretary and the trial court failed to consider relevant and material objective findings concerning this claimant's residual capacity. A fair reading of the record shows that this claimant is incapable of engaging in any substantial gainful activity by reason of his medical, determinable, physical impairments for which all evidence leads to the inevitable and uncontradicted conclusion that the doctors find no reason to believe that any treatment would result in any improvement in Hicks' condition.

Hicks, as a result of his injury of 1932, walks with a limp and suffers from post-traumatic pain to such an extent that some 34 years after the injury Dr. C. B. Bray, an orthopaedic consultant to whom the claimant was sent for examination by the Secretary found "considerable muscle spasm present in the para-spinal area." The claimant has not been able to engage in any work, other than for approximately ten days, since 1964. He is incapable of sitting or standing for any prolonged periods. X-rays show that in 1965 he had a considerable degree of sclerosis of the bone of the articula facets, and x-rays of his chest show that he not only has coal worker's pneumoconiosis, but has a loss of approximately 55% of his expected work capacity due to inability to take oxygen into the lungs and get it into his blood. The doctors, in...

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363 cases
  • Floyd v. Finch
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 26 d5 Fevereiro d5 1971
    ...1970); Mullins v. Cohen, 408 F.2d 39, 40 (6th Cir. 1969); Davidson v. Gardner, 370 F.2d 803, 823-825 (6th Cir. 1966); Hicks v. Gardner, 393 F.2d 299, 301 (4th Cir. 1968); Carico v. Gardner, 377 F.2d 259, 261 (4th Cir. 1967); Brandon v. Gardner, 377 F.2d 488, 491 (4th Cir. 1967); Boyd v. Gar......
  • Johnson v. Heckler
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 30 d2 Julho d2 1985
    ...Cir.1983); Camp v. Schweiker, 643 F.2d 1325, 1333 (8th Cir.1981); Brenem v. Harris, 621 F.2d 688, 690 (5th Cir.1980); Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir.1968). The district court found that the regulations and rulings of the Secretary were contrary to the plain meaning of the stat......
  • Washington v. Commissioner of Social Sec.
    • United States
    • U.S. District Court — District of South Carolina
    • 21 d1 Setembro d1 2009
    ...substitutes the court's findings for those of the Commissioner. See, e.g., Vitek v. Finch, 438 F.2d 1157 (4th Cir.1971); Hicks v. Gardner, 393 F.2d 299 (4th Cir.1968). "[T]he court [must] uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is......
  • Meneses v. Secretary of Health, Education and Welfare
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 19 d5 Fevereiro d5 1971
    ...See, e. g., Reyes Robles v. Finch, 409 F.2d 84, 86 (1st Cir. 1969); Mullins v. Cohen, 408 F.2d 39, 40 (6th Cir. 1969); Hicks v. Gardner, 393 F.2d 299, 301 (4th Cir. 1968); Rosin v. Secretary of H.E.W., 379 F.2d 189, 195 (9th Cir. 1967); McMillin v. Gardner, 384 F.2d 596, 598 (10th Cir. 1967......
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2 books & journal articles
  • Standards of Review and Federal Court Remedies
    • United States
    • James Publishing Practical Law Books Social Security Disability Advocate's Handbook Content
    • 4 d1 Maio d1 2020
    ...clear that the reviewing court may not try the case de novo and substitute its own findings for those of the Secretary. Hicks v. Gardner , 393 F.2d 299 (4th Cir. 1968). From this it does not follow, however, that the findings of the administrative agency are to be mechanically accepted. The......
  • Standards of Review and Federal Court Remedies
    • United States
    • James Publishing Practical Law Books Archive Social Security Disability Advocate's Handbook. Volume 1 - 2014 Contents
    • 18 d1 Agosto d1 2014
    ...clear that the reviewing court may not try the case de novo and substitute its own findings for those of the Secretary. Hicks v. Gardner , 393 F.2d 299 (4th Cir. 1968). From this it does not follow, however, that the findings of the administrative agency are to be mechanically accepted. The......

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