Johnson v. Gardner

• Decision Date: 09 November 1966
• Docket Number: No. 8708.,8708.
• Citation: 368 F.2d 909
• Parties: George D. JOHNSON, Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

368 F.2d 909 (1966)

George D. JOHNSON, Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Appellee.

No. 8708.

United States Court of Appeals Tenth Circuit.

November 9, 1966.

James P. Johnston, Wichita, Kan. (Clarence R. Sowers, John W. Sowers and Davis S. Carson, Wichita, Kan., on the brief) for appellant.

Robert C. McDiarmid, Atty., Dept. of Justice, (John W. Douglas, Asst. Atty. Gen., Newell A. George, U. S. Atty., and David L. Rose, Atty., Dept. of Justice, on the brief), for appellee.

Before PHILLIPS, LEWIS and HILL, Circuit Judges.

HILL, Circuit Judge.

Appellant, pursuant to section 405(g) of the Social Security Act, 42 U.S.C., filed suit below for a judicial review of a final decision of the Secretary of Health, Education and Welfare denying his claim for the establishment of a period of disability and for disability benefits. The District Court affirmed the Secretary's decision and granted the Secretary-appellee's motion for summary judgment. From that judgment, appellant takes this appeal.

Appellant is 47 years old. He has been blind in his right eye since he was five years old. He has a congenital bilateral club foot deformity. This forces him to walk on his heels with his feet pointed out at 45 degree angles — in a "v" shape. In May of 1963, appellant applied to the Secretary for a period of disability benefits.¹ In order to receive them, appellant had to prove that, prior to August 1, 1963, he was disabled within the meaning of the Act. The provisions then applicable, 42 U.S.C. §§ 416(i) and 423(c) (2),² defined "disability": "The term `disability' means 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 * * *." Appellant satisfied the other requirements of the Act and, in order to receive benefits, had to show only that because of a medically determinable physical or mental impairment he was unable to engage in substantial employment. Appellant's claims were denied and he requested and was granted a hearing before a hearing examiner on February 8, 1965. In his request for a hearing, appellant states that:

"The intense pains in my feet — whether they be spurs or nerves — is great enough that it distracts my attention no matter what I am doing. My feet hurt all the time even when I am laying on a bed and I cannot stand on my feet for very long periods at a time. I cannot squat more than twenty minutes without having severe pain."

At the hearing, a number of exhibits were introduced into evidence and the Examiner questioned appellant and Mr. Bentley A. Barnabas, the director of a vocational placement service in Wichita, Kansas.³ From appellant's testimony taken at the hearing, it appears that although severely handicapped, he is industrious, very bright and a hard worker. Over the last thirty-odd years, he has done a variety of jobs in an effort to earn a living. After completing 12 years of school and working on a farm until he was nineteen, he left the farm and for the next six years worked at many jobs, from circus roustabout to cook.

From 1942 to 1951 he was a self-employed farmer, but because of crop failure and a "nervous breakdown" had to leave the farm in eastern Kansas. He went to Wichita, Kansas, and, from 1951 to 1958, he was employed by the Boeing Aircraft Company. His legs and feet were bothering him a great deal during this time. In 1957 his first wife died, leaving appellant to care for seven children. Because of his continued absences from work, appellant was fired by the Boeing Company in 1958. Appellant then dug basements and ploughed gardens with a tractor left over from his farming days until it wore out. Then he developed a small egg delivering business but could not compete with the larger stores' egg sales and was forced to find another means of livelihood. He tried raising and selling garden vegetables and rabbits for a while but had to stop because of pain in his legs. For the last few years appellant has been collecting junk — going to the local dumps, picking up scrap metal, taking it home, burning it clean, separating and selling the various metals.

Appellant testified that in 1960 the Kansas Vocational Rehabilitation Service sent him to a business college. His intelligence quotient was tested and found to be 130.⁴ At the school appellant would do quite well in classes on one day but would do poorly the next. He finished only 10 of an 18 months course. He attributed this to frustration he would feel at times: "* * * this idea of going to work somewhere and being 8:00 to 4:00 every day at a steady grind and something coming up and frustrating me, why I couldn't — I'd blow up." Appellant's "frustration" was apparently in part caused by the pain he suffers. When asked why he did not re-enlist the aid of the Kansas Rehabilitation Service, go back to business college and let the state agency find him a clerical, sedentary job, appellant replied: "I don't think they can do it." Then the Examiner said: "Well, you never gave them the Rehabilitation people a chance." And Johnson replied: "I feel like I have. I've done what I was supposed to do except to finish the school under those conditions — handicapped — that is, I tell you something like that is just like one man looking at a rabbit and telling how far he can jump. It just doesn't make sense because the rabbit knows whether he can move or not surely." Appellant further testified that the reason he could no longer make any money at the junk business⁵ was because he could not stand the pain he suffered after he had been working at cleaning and sorting metals for a while.

Among the exhibits admitted at the hearing were reports from three physicians. In 1958, Dr. Max Teare recommended to appellant's employer that he be assigned to work that would allow him to sit 50 per cent of the time. In 1959, Dr. E. N. Tihen reported that appellant has had only light perception in the right eye since age 5. He also reported that appellant had a bilateral club foot deformity with atrophy of the muscles in the lower half of his legs. Dr. Tihen felt that appellant was unable to perform work involving use of his feet or prolonged standing or walking. Dr. J. F. Lance submitted two reports on appellant. The first was in 1960. At that time he reported that appellant had had difficulty with his feet all his life; that he bore little weight on his fore-feet and as a result the heels became calloused and painful; and that if appellant could be placed in a position where standing and walking were at a minimum, he would be able to continue working. On July 15, 1963, Dr. Lance again examined appellant. That examination revealed:

"A forty-six year old white male, who walks with marked limp on both feet, having no power of plantar flexion in the ankles. He walks off of the heels entirely. There is marked atrophy of both legs. The calf on the left measures 9½ inches, and on the right 8½ inches in circumference at the ankle. There are healed scars of previous surgical operations. The heels are broad. There is a cavus deformity in both feet. The toes touch the floor with weight bearing, but he carries no weight under the metatarsal heads. Both ankles dorsiflex well to 60 or 70 degrees, but plantar flexion is limited on the right to less than 90 degrees, and on the left to 90 degrees. The heels are calloused. There is little if any motion permitted in the subtalar joint, right and left."

Dr. Lance concluded his report: "I would consider Mr. Johnson as unemployable, and I would believe this to be a permanent situation."

In addition to appellant, Bentley A. Barnabas testified at the hearing. Mr. Barnabas holds a B.A. degree in business administration and an M.S. degree in industrial psychology and is a vocational expert. The Examiner propounded a hypothetical question to Mr. Barnabas. The expert was told to assume that the claimant is 47 years old with an I.Q. of 130, that he has a high school education and 10 months of business college, and that he is blind in the right eye but has adequate vision in the left. The vocational expert was also told to assume that "* * * this witness cannot do any type of work which involves very much walking on the job, and it's got to be a sedentary type of job. That he's got to sit and although he can get up and walk occasionally, and, of course, you have seen him walk to the door and back, let's assume that's his normal method of walking." The examiner additionally instructed Mr. Barnabas to assume that the claimant could not drive.⁶ The examiner concluded his question: "Now, taking these assumptions, and the medical assumptions are fairly simple, because they involve this job without any walking and he's blind in his right eye, is there anything that this individual can do in the way of substantial gainful activity?" The examiner did not include in his question any element of pain. The vocational expert answered this question in the affirmative and then explained to the examiner many of the jobs in the Wichita area which he thought appellant could handle. Among them were inspection jobs, appliance repair work, material inventory clerk, accounting and assembly work. In all of the jobs mentioned, the worker remains seated most of the time. Although the examiner did not mention pain in his "hypothetical" question, Mr. Barnabas volunteered his opinion about pain. He said: "Well, in some of these routine jobs, such as simple accounting clerk, or bench repair work, I would take into consideration the fact that if he took any type of sedation to free him from the pain that he then would not be as bright as if he if he — Affects or so I am told by consultants that various sedatives is to...