Kerner v. Flemming

• Decision Date: 18 November 1960
• Docket Number: Docket 26290.,No. 52,52
• Parties: Philip KERNER, Appellant, v. Arthur S. FLEMMING, Secretary of Health, Education and Welfare, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

283 F.2d 916 (1960)

Philip KERNER, Appellant, v. Arthur S. FLEMMING, Secretary of Health, Education and Welfare, Respondent.

No. 52, Docket 26290.

United States Court of Appeals Second Circuit.

Argued October 10, 1960.

Decided November 18, 1960.

Timothy P. Walsh (of Hardin, Hess & Eder), New York City, for appellant.

Cornelius W. Wickersham, Jr., U. S. Atty., Eastern Dist. of New York, Brooklyn, N. Y. (Malvern Hill, Jr., Asst. U. S. Atty., and Judith Gelb, Confidential Asst. to the U. S. Atty., Brooklyn, N. Y., on the brief), for respondent.

Before CLARK and FRIENDLY, Circuit Judges, and DIMOCK, District Judge.

FRIENDLY, Circuit Judge.

This is an action under § 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), to review a decision of the Secretary of Health, Education and Welfare, hereafter the "Secretary," denying plaintiff's application for disability insurance benefits and the establishment of a period of disability. Plaintiff appeals from an order of the District Court for the Eastern District of New York denying his motion for summary judgment and granting a cross-motion of the Secretary for summary judgment and dismissal of the complaint. We think the case called for exercise of the District Court's power under § 205(g) to "order additional evidence to be taken before the Secretary." Accordingly, we reverse the grant of summary judgment and the dismissal of the complaint, and remand in order that the District Court may direct further evidence to be so taken.

Section 223 of the Social Security Act, 42 U.S.C.A. § 423, enacted in 1956, provides disability insurance benefits for certain individuals between the ages of 50 and 65 in the event of "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." Section 216(i) (1), 42 U.S.C.A. § 416(i) (1), makes the same definition applicable to § 215(b) (1) (B), 42 U.S.C.A. § 415 (b) (1) (B), enacted in 1954, which excludes periods of disability from the divisor in determining average monthly wages — the so-called "disability freeze."

The plaintiff, Philip Kerner, was born on September 15, 1896. A veteran of World War I, he worked as a carpenter, automobile salesman, and mechanic. In the late 1940s he took up the occupation of reupholstering furniture on a self-employed basis. Apparently he has lived alone for many years. Since the early 1950s, he has had diabetes, which, after six months on insulin, he has controlled by careful diet with a maximum of 1550 calories daily. In June, 1956, he suffered a heart attack; after a day at Beekman Street Hospital, he was transferred to the Veterans Administration Hospital in Brooklyn and remained there until August. The diagnosis was "infarction of the myocardium due to arteriosclerotic coronary thrombosis," "arteriosclerotic heart disease" and "diabetes mellitus"; the final summary reported all these as "Treated. Improved." In September, 1956, he was admitted to the New York State Veterans Camp at Mt. McGregor. He was there until January, 1957, and again from August to December, 1957. On both occasions, as a result of medical examination, he was assigned to a group engaged in no physical activity. Between his stays at Mt. McGregor and thereafter he endeavored to live in New York. He found this endeavor well nigh impossible since his only income was a non-service connected disability pension of $66.15 a month awarded by the Veterans Administration and he required a room where he could prepare his own meals. On July 15, 1958, he was admitted to the Veterans Administration domiciliary at Bath, N. Y., where he has since been.

In October, 1956 and May, 1957, Kerner applied to establish a period of disability and for a disability pension under the provisions of the Social Security Act cited above. The Bureau of Old Age and Survivors Insurance denied these applications in November, 1957. Kerner requested a hearing; this was held before a referee at Bath a year later, in November, 1958. After reviewing the medical and other evidence which we will summarize below, and conceding that applicant "would be unable to return to the strenuous work which he had been doing as a self-employed furniture repairman," the referee concluded "it does not appear that his physical condition has been so seriously affected that he would be completely unable to engage in any kind of substantial gainful activity, including some form of light or part-time sedentary work" and that the "fact that work which would be within his capacity to perform may not be readily attainable, cannot be substituted as standards of disability for the strict standard set forth in the Act, namely, complete inability to do any substantial gainful work."¹ In May, 1959, the Appeals Council of the Department denied review; the referee's decision thereupon became the final decision of the Secretary, 20 C.F.R. § 422.6(c). Appellant thereupon brought this action, 42 U.S.C.A. § 405(g), to review the Secretary's decision; on cross-motions for summary judgment the District Court dismissed this, as stated above.

The evidence left no doubt that plaintiff met the requirement of a "medically determinable physical or mental impairment which can be expected * * * to be of long-continued and indefinite duration." What was doubtful was whether this had caused "inability to engage in any substantial gainful activity."

The Regulations promulgated by the Department, 20 C.F.R. § 404.1501(d) and (e), give as an example of such a disabling impairment:

"(3) Diseases of heart, lungs or blood vessels which have resulted in major loss of heart or lung reserve as evidenced by X-ray, electrocardiogram or other objective findings so that, despite medical treatment, it produces breathlessness, pain or fatigue on slight exertion, such as walking several blocks, using public transportation or doing small chores."

The Veterans Administration physician at Mt. McGregor found in August, 1957, that Kerner suffered dyspnea "on moderate exertion"; his own physician found in February, 1958, that he manifested this "on slight exertion." The doctor who examined him for the New York State Department of Social Welfare in April, 1958, reported that "he gets an occasional chest pain and dyspnea on walking upstairs, or other moderate exertion. This is relieved by nitroglycerine and sedatives." This evidence would seem to place Kerner within the example given by the Regulations. However, the Regulations tell us also, in characteristic Janus-faced fashion, that, on the one hand, "The existence of one of these impairments (or of an impairment of greater severity), however, will not in and of itself always permit a finding that an individual is under a disability as defined in the law," and, on the other, "Conditions which fall short of the levels of severity indicated must also be evaluated in terms of whether they do in fact prevent the individual from engaging in any substantial gainful activity."

The evidence on the crucial issue whether plaintiff's medically determinable impairment had resulted in "inability to engage in any substantial gainful activity," was exceedingly unsatisfactory. Plaintiff was not represented by counsel at the hearing. Even the cold type of the record shows that he was highly disturbed.² He testified that he does "a lot of walking" but only "on a straight place," since he suffers from shortness of breath when he must climb stairs. He attributed his inability to work not only to his heart ailment, but to the fact that "If you over-exert yourself, even in light work, your caloric intake would have to go up" — with unfavorable results to his diabetic condition.³ At Bath he had been initially assigned to upholstering work in an arts and crafts shop; he refused the assignment both on grounds unrelated to health and because "no doctor in his right mind should have assigned me a 6 hour detail." His duties were then changed to sitting as a watchman in bath rooms one week out of three. He had enjoyed repairing furniture and "wouldn't be up here if I were able to earn $10, two or three hours a day." However, he was convinced that his "ability to do any kind of work is nil," both because of his physical condition and because of the unavailability of appropriate employment; and that a disability pension afforded the only alternative to continued institutionalization, to which he objected on medical as well as on other grounds.⁴ He thought "* * * the basic fact is if I don't take care of myself, no one else will. I want to live as long as I can." His testimony revealed great preoccupation on this score. He related that his father had died of a heart attack at 55 and his mother of diabetes at about the same age. He also discussed extensively the problems of controlling diabetes and the physiology of heart disease; he was very fearful of the effect of "a small minute globule of fat." He tests himself for diabetes four times daily and averages one nitroglycerine tablet per day for his heart symptoms. Altogether his testimony abundantly confirmed his personal physician's diagnosis of "anxiety neurosis."⁵

None of the doctors testified and few of the medical reports deal in any illuminating fashion with applicant's ability to work. In September, 1956, the Veterans Administration found Kerner had a general medical disability that was considered to be permanently and totally disabling. The Government challenges the probative effect of this because the statute there controlling speaks of a "disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation," 38 U.S.C. § 502, whereas the Social Security Act proceeds on an individual basis; this blunts the point but does not eliminate it. In December, 1957, the New York Vocational Rehabilitation Agency refused to accept a referral of...