Keating v. Secretary of Health, Ed. and Welf. of US, 72-1201.

• Citation: 468 F.2d 788
• Decision Date: 26 October 1972
• Docket Number: No. 72-1201.,72-1201.
• Parties: Lawrence J. KEATING, Plaintiff-Appellant, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE OF UNITED STATES of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

468 F.2d 788 (1972)

Lawrence J. KEATING, Plaintiff-Appellant, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE OF UNITED STATES of America, Defendant-Appellee.

No. 72-1201.

United States Court of Appeals, Tenth Circuit.

October 26, 1972.

Gerald E. Kamins, Tulsa, Okl., for plaintiff-appellant.

Robert M. Feinson, Dept. of Justice, Washington, D. C. (Nathan G. Graham, U. S. Atty., Oklahoma City, Okl., Morton Hollander, Dept. of Justice, Washington, D. C., and Harlington Wood, Jr., Asst. Atty. Gen., on the brief), for defendant-appellee.

Before SETH, BARRETT and DOYLE, Circuit Judges.

BARRETT, Circuit Judge.

Lawrence J. Keating seeks review of the order of the District Court granting a summary judgment in favor of the Secretary in a proceeding brought to review the denial of his disability social security benefits. 42 U.S.C. § 405(g).

Keating was injured in a car accident on October 25, 1968. He filed an application for disability insurance benefits on December 2, 1968. The Social Security Administration found that his impairments were not of such severity as to prevent him from engaging in substantial gainful employment. 42 U.S.C. § 423(d). On December 3, 1969 a hearing was conducted. The Hearing Examiner ruled that Keating's impairments prevented him from engaging in substantial gainful activity from October 24, 1968 until November 15, 1969. The Appeals Council denied review. The benefits were awarded until January 31, 1971 pursuant to 42 U.S.C. § 416(i)(2)(D). The District Court remanded the case for another hearing which was held on February 8, 1971. The Hearing Examiner determined that Keating had failed to prove any impairment after November 15, 1969. The Appeals Council affirmed. The District Court granted the Secretary's motion for summary judgment.

The record discloses that Keating was fifty-six years old when the accident occurred. He had graduated from high school and attended two years of business college. Before the accident Keating worked as a salesman and manager for a B. F. Goodrich store for 30 years and had operated a gas station for a short period of time. As a result of the accident Keating sustained multiple rib fractures, a dislocated ankle, lacerations about the face, a collapsed lung, a cerebral concussion, damage to his vision, neurological impairment, emphysema and heart damage. Keating claims that these conditions prevent him from being able to work because of shortness of breath and difficulty in standing on his injured foot. He was working as an independent contractor with AA Exterminator Company, supervising the work of his sons, at the time of the rehearing.

Keating contends that: (1) the District Court erred in refusing to remand the case to the Secretary for a rehearing; and (2) the evidence does not support the Secretary's findings.

Keating alleges that the trial court should have vacated the summary judgment and remanded the case for consideration of two medical reports by Dr. John McDonald. Dr. McDonald's reports stated that Keating could not carry on any work requiring weight bearing, standing or walking. Keating contends that Dr. McDonald's reports, if they had been considered together with the other medical reports, would have established his total disability.

The Secretary's findings are conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g); Johnson v. Finch, 437 F.2d 1321 (10th Cir. 1971). In order to qualify for Social Security disability benefits a claimant must establish that he is suffering from a physical or mental impairment of such a severity as to be unable to do his previous work considering his age, education and work experience or engage in other kinds of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2).

Dr. Leonard H. Brown, a plastic surgeon, reported that Keating had received multiple lacerations about the face and scalp. He noted that they were well-healed on December 5, 1968. He later recommended that three of the scars be revised. Dr. Jenkins' report noted X-rays had been taken. The rib fractures were healed. X-rays of the heart and lungs showed no deformities.

Dr. Coates, a neurological surgeon, noted a satisfactory recovery from a cerebral concussion. Dr. Mayoza, an orthopedic surgeon, treated Keating for a...