Jenkins v. Gardner

• Decision Date: 30 June 1970
• Docket Number: No. 18757.,18757.
• Citation: 430 F.2d 243
• Parties: Irene C. JENKINS, Plaintiff-Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

430 F.2d 243 (1970)

Irene C. JENKINS, Plaintiff-Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 18757.

United States Court of Appeals, Sixth Circuit.

June 30, 1970.

Harvey L. Sproul, Lenoir City, Tenn., for plaintiff-Appellant.

Edward E. Wilson, Asst. U. S. Atty., Knoxville, Tenn., for defendant-appellee; J. H. Reddy, U. S. Atty., Knoxville, Tenn., on brief.

Before PHILLIPS and O'SULLIVAN, Circuit Judges, and McALLISTER, Senior Circuit Judge.

O'SULLIVAN, Circuit Judge.

We consider the appeal of Irene C. Jenkins from disallowance of her claim to social security benefits. Mrs. Jenkins was 57 years old in April of 1967 — the time of the hearing in this case. She had worked for many years for the Union Carbide Company as a salad maker in the cafeteria. Her husband is also employed there; they have no dependent children. Appellant claims that because of her disabilities¹ she quit work in April of 1966. In September of that year she retired from Union Carbide at a monthly pension of $57.00.²

Application for Disability Insurance Benefits filed June 27, 1966, describes the disabilities upon which she relied as "Diabetes, Ulcers, Bursitis," and stated that she had become disabled on April 1, 1966. Initially, the Secretary, after reviewing what was before him, denied her application. Upon request for reconsideration, the Social Security Administration reviewed the material before it. The Department on February 17, 1967, advised Mrs. Jenkins,

"You stated that you became unable to work in April 1966, at age 55, because of diabetes, ulcers and bursitis. Our records show that you have a sixth grade education and worked as a salad maker in a cafeteria. "The medical evidence includes reports from your treating physican, hospital records and the results of special examinations which were arranged for you. This evidence reveals that you have a history of diabetes and ulcers. However, it is shown that these conditions are controlled by diet and medication and the state of your nutrition is not disturbed. Although you have recurrent attacks of bursitis, the evidence establishes that this condition responds to therapy and does not seriously limit your ordinary activities. We realize that you may experience occasional pain and discomfort. However, the evidence does not support a conclusion that your condition is so severe as to prevent you from performing your usual work. Therefore, the denial of your claim is affirmed."

Upon her request, a hearing was had before a trial examiner at which appellant was represented by counsel. Included in the record made in considering appellant's application were reports of her hospitalization on several occasions, reports of doctors who had examined her for the Secretary, and reports of her own treating doctor. Of the doctors who examined plaintiff and expressed views as to whether she was disabled, the following were the observations of such of them as examined her at the request of the Secretary.

On September 7, 1966, Dr. I. Reid Collmann concluded:

"Recommendations: It would appear that this patient does have cholelithiasis proven by previous x-rays, but this situation could be modified by corrective surgery. Also her diabetes and ulcer situation should be able to be managed by good medical therapy. Following these corrections we feel that this patient is not restricted but probably has some degree of restriction until that time." (Emphasis supplied.)

Dr. R. A. Obenour, on January 23, 1967, stated:

"Minimal arteriolar schlerosis was noted on funduscopic examination. She may have some bronchitis related to her smoking but the extent of this is not thought to be severe. I believe that some improvement could be expected from weight reduction, continued diabetic control, cessation of smoking, and if necessary more specific treatment for her chronic bronchitis. On the basis of the present findings she might be limited by her pulmonary impairment from performing heavy work but would not be limited for performing moderate or light work on a sustained basis. (Emphasis supplied.)

Walter C. Shea, who had been her treating physician for some years before the present proceedings, said on December 5, 1966:

"At times she is ambulatory with limitation of employment due to chronic and persistent illness.³

"She is unable to hold down any job which requires much physical labor for any prolonged period of time."

Finally, on May 7, 1967, Dr. Shea stated:

"Due to multiplicity of complaints I believe Mrs. Jenkins has shown over the past two years I believe her absenteeism rather marked and she is an unreliable employee.

"I believe she can be gainfully employed for short periods of time if she can find employment under these circumstances."

Mrs. Jenkins had a multiplicity of complaints, suffering from bronchitis, diabetes, chronic overweight, bursitis and ulcers. Her weight had varied. At the time of the hearing she was 5' 6" tall and weighed 185 pounds. She had once reached a weight of 190. She considered that her proper weight was 160 pounds, although about four years prior to the hearing she weighed 139 pounds. She testified at the hearing that she had then quit her diet, finding it too burdensome. Control of her diabetes and ulcers was impaired by her failure to follow the advice of doctors. She was then smoking about one package of cigarettes every two days, although she had been advised to quit or to cut down on her smoking to control her bronchial complaints.

Despite her ailments, all of the doctors, including her own treating physician, expressed the view that appellant could engage in moderate or light work, albeit, according to Dr. Shea, her reliability was questionable as a result of her absenteeism. The vocational counselor, a University of Tennessee professor, expressed the opinion that light work within appellant's limited competence was available within the area of her place of residence. He testified that such light work included employment as a salad maker, cashier, or nurse's aid. The trial examiner concluded as a matter of factual finding,

"The examining physicians, including claimant\'s own treating physician, are unanimous in their findings that even though the claimant does not have the residual capacity to engage in productive substantial gainful activity requiring physical exertion or labor for any prolonged period of time, neither of them rule out claimant\'s residual capacity to be gainfully employed in performing moderate or light work on a sustained basis."

and in another style said:

"Upon the basis of all the evidence of record in this case, and the conclusions and deductions made from such evidence, the hearing examiner finds that the claimant has failed to present sufficient evidence to establish that she has an impairment or impairments in combination severe enough to preclude her from engaging in any type of substantial gainful activity for a continuous period, without interruption, of not less than 12 months\' duration and that, therefore, her application is without merit."

No question is raised as to the competence, integrity or credibility of the medical witnesses Collmann and Obenour who examined appellant for the Secretary. If there is some degree of conflict between Dr. Shea and these doctors, we are not persuaded that we should ignore their testimony or fault the examiner for relying upon their views. Lane v. Gardner, 374 F.2d 612, 616 (6th Cir. 1967).

The burden of proving the disability which would entitle an applicant to social security benefits is upon such applicant. Henry v. Gardner, 381 F.2d 191 (6th Cir. 1967); Erickson v. Ribicoff, 305 F.2d 638 (6th Cir. 1962); 42 U.S.C. § 423(d) (5). The disability which must be shown is defined in Section 223(d) (1) of the Act as,

"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 which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d) (1).

This Circuit had adhered to a Court made rule that if an applicant has established inability to engage in his or her regular employment, but has some residual capacity for light work, the burden is on the Secretary to show what light work the applicant can do and that such light work is being performed within reasonable proximity to the applicant's place of residence. Massey v. Celebrezze, 345 F.2d 146 (6th Cir. 1965); Hall v. Celebrezze, 314 F.2d 686 (6th Cir. 1963); May v. Gardner, 362 F.2d 616 (6th Cir. 1966). Whatever the present applicability of such rule, the Secretary's burden was met in this case.

We affirm the District Judge who granted the Secretary's motion for summary judgment upon his view that the findings of fact of the Secretary were supported by substantial evidence and were binding upon him. We are of a like view. 42 U.S.C. § 405(g); Nelson v. Gardner, 386 F.2d 92, 94 (6th Cir. 1967).

We are constrained, however, to say this much more, limited to plaintiff's "claim" of impaired eyesight. Appellant did not claim impaired eyesight in her application for benefits. Eye trouble appeared first as a result of some questions put to her by the trial examiner. We discuss it only because the dissent places great weight on it.

In her original application for benefits, she described her disabilities as "diabetes, ulcers, and bursitis," never once mentioning poor eyesight. The report of disability interview merely checks off a box denoting that appellant displayed some difficulty with her eyesight, but otherwise deals at length only with her other complaints. The record made contained reports of Mrs. Jenkins' hospitalization on several occasions. No mention of eye trouble is contained in any of these — the last relating to a period from April 22, 1966, the date she gives as the beginning of her total disability.

A total of ten doctors...