Justice v. Gardner, 16353.

• Decision Date: 27 May 1966
• Docket Number: No. 16353.,16353.
• Citation: 360 F.2d 998
• Parties: Montward JUSTICE, Plaintiff-Appellee, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

360 F.2d 998 (1966)

Montward JUSTICE, Plaintiff-Appellee, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellant.

No. 16353.

United States Court of Appeals Sixth Circuit.

May 27, 1966.

Robert C. McDiarmid, Dept. of Justice, Washington, D. C., for appellant, John W. Douglas, Asst. Atty. Gen., Sherman L. Cohn, Atty., Dept. of Justice, Washington, D. C., George I. Cline, U. S. Atty., Lexington, Ky., on the brief.

Ronald W. May, Pikeville, Ky., for appellee.

Before WEICK, Chief Judge, and O'SULLIVAN and PHILLIPS, Circuit Judges.

O'SULLIVAN, Circuit Judge.

The Secretary of Health, Education and Welfare appeals from a District Court judgment awarding benefits under the social security laws of the United States to appellee, Montward Justice. The Secretary's examiner found, after a hearing, that the said Justice was not, at the time of and following his application for social security benefits, made on August 13, 1962, disabled within the meaning of Section 216(i) (1) (A), 42 U.S.C.A. § 416(i) (1) (A). The plaintiff was thirty-six years old at the time of his application.

Appellee Justice requested a review of the findings of the Secretary's trial examiner. This was denied and the decision of the examiner became that of the Secretary. Justice then commenced an action in the United States District Court for the Eastern District of Kentucky under Section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g). Upon hearing, the District Judge reversed the decision of the Secretary and remanded the cause for the awarding of social security benefits to plaintiff.

The United States District Judge filed an opinion following a regular form currently in use in the mentioned District Court. This opinion assumed that plaintiff's proofs made out a case that the said Justice was disabled from doing the work which he had been doing prior to his application for social security benefits, to wit, coal mining. From this holding, the District Judge, citing cases from this court, held that the plaintiff should prevail because the Secretary had not shown that work which plaintiff could do in substitution for his regular employment was available. Hall v. Flemming, 289 F.2d 290 (CA 6, 1961); King v. Flemming, 289 F.2d 808 (CA 6, 1961); Prewitt v. Celebrezze, 330 F.2d 93 (CA 6, 1964); and Thompson v. Celebrezze, 334 F.2d 412 (CA 6, 1964).

We reverse the District Judge because we are satisfied that the examiner's findings in this case were not erroneous and that the plaintiff failed to make out a case that he was disabled within the meaning of the applicable statute. Under this statute, the term disability is defined 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 to be of long-continued and indefinite duration."¹ 42 U.S.C.A. § 416(i) (1) (A).

Upon plaintiff's request for social security benefits, his application, pursuant to Section 221 of the Social Security Act, 42 U.S.C.A. § 421, was referred to the Kentucky Bureau of Rehabilitation Services. On November 15, 1962, that Bureau issued a report, signed by a physician and a disability examiner, stating that plaintiff's disability was an ulcer, controllable by diet. This report contained the medical examiner's observations that,

"Patient appeared to to be in excellent physical condition. * * * clinical findings indicate that the applicant has an ulcer. He also complains of his back hurting. There was no evidence of any appreciable orthopedic impairment. He moves all of his joints without restriction, although he may have some pain. With careful diet and medication the applicant should be able to keep his ulcer under control, at least to the extent that he would not be prevented from doing some gainful work because of it."

This finding was accepted by the Social Security Administration, but plaintiff filed a request for reconsideration, alleging in substance that he had "pain in stomach and back, head injury, choking and pain in chest, arthritis in his legs, back, arm, and `aflelic' foot (athlete's foot?)." He claimed he could not see and had defective ear drums. A second examination was performed by another doctor on or about December 27, 1962, and again Justice was found "not to be under a disability." The report of this examination contained the observation that "applicant was well developed, well nourished, muscular and appeared to be in excellent physical condition."

A further report upon applicant Justice's request for reconsideration was made on March 25, 1963, in the form of a letter to Justice from the Chief of the Reconsideration Branch. This contained the following:

"After receipt of your request for reconsideration we had your claim independently reviewed by a specially designated group to see whether the previous denial of your application was correct. After thoroughly reviewing the record in your case, including the additional medical evidence, and considering your statements, age, education, training and experience, we find that the previous determination is proper under the law. The denial of your application for disability insurance benefits therefore remains unchanged.

"You state you are unable to work because of several conditions including arthritis, ulcers, and the after effects of a head injury. However, the medical evidence, which includes a special examination, does not show that you have a significant arthritic condition which limits your ability to walk, lift, bend, or carry to the extent you are unable to work. Although you may have been given hospital treatment in the past and continue to have stomach discomfort, special x-ray studies of your stomach shows that you digest food properly. You are well nourished with no signs of physical weakness or other complications of a disabling stomach condition. In respect to your head injury, a medical report of your hospital treatment shows you suffered a skin laceration, but skull x-rays disclosed no skull fracture. You required only one day of treatment and you were discharged as being in an improved condition with a well healing wound. Perhaps you have headaches, but there is no medical evidence that these are frequent, severe, or due to a serious physical disorder. No other significant physical disorder of your eyes, hearing or other part of your body is shown.

"The evidence shows that you are about 36 years of age. Although you may have done only coal mining work,² the evidence does not establish that your health prevents you from doing some type of work inside or outside of the mines in keeping with your previous experience." (Emphasis supplied)

Following the above report and at Justice's request, a hearing was had before a trial examiner at which Justice testified. Before the examiner were two medical reports, one by applicant's own doctor, Dr. M. D. Flanery, who under date of May 2, 1962, executed a medical report that as of that date Justice was "Totally disabled — is on a restricted diet and treatment." The only medical finding which would be supportive of such total disability was that the patient had a gastric ulcer. The report had the notation "advise surgery." This meager report contained no other discussion of Justice's physical condition or the causes of his total disability. The other medical report was from Dr. Francis H. Hodges who examined Justice on October 23, 1962. This report excluded all physical disabilities other than a stomach ulcer. It contained the observation that "The patient is a well developed, well nourished, muscular, small white male. He appears to be in excellent physical condition." The concluding paragraph of the report reads,

"This man has generalized abdominal tenderness and symptoms which are suspiciously indicative of all

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