King v. Gardner

• Decision Date: 19 February 1968
• Docket Number: No. 23597.,23597.
• Citation: 391 F.2d 401
• Parties: Hermione KING, Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

391 F.2d 401 (1967)

Hermione KING, Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Appellee.

No. 23597.

United States Court of Appeals Fifth Circuit.

August 29, 1967.

Petition for Rehearing Denied November 8, 1967.

On Application for Rehearing December 7, 1967.

On Rehearing February 19, 1968.

William A. Barber, Jr., Grand Prairie, Tex., for appellant.

Richard B. Hardee, Asst. U. S. Atty., Tyler, Tex., Morton Hollander, William Kanter, Attys., Dept. of Justice, Washington, D. C., for appellee.

Before WISDOM, COLEMAN and GODBOLD, Circuit Judges.

Petition for Rehearing En Banc Denied November 8, 1967.

On Application for Rehearing En Banc December 7, 1967.

On Rehearing En Banc February 19, 1968.

GODBOLD, Circuit Judge:

Hermione King brought this action under section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), to obtain judicial review of a determination by the Secretary of Health, Education and Welfare that she was not entitled to Child's Survivors Insurance Benefits under section 202(d) of the Act, 42 U.S.C.A. § 402 (d).¹ The district court affirmed the determination of the Secretary and dismissed Miss King's complaint. We hold that the Secretary failed to inquire into an important aspect of the matter and remand for further proceedings.

In 1963 Miss King filed an application for benefits, alleging disability by reason of rheumatic heart disease from March, 1946, to the date of application. The application was denied, and upon reconsideration at her request the disallowance was affirmed. A hearing was held before an examiner at Miss King's request, at which she was represented by an attorney.

Evidence produced at this hearing (and in earlier dealings with the Secretary) tended to show the following: Miss King was born June 10, 1929, and was eighteen on June 10, 1947. She was considered a sickly child and at about the age of six had rheumatic fever with a possible recurrence in 1946. Her father died in 1962 and she since has lived quietly with her mother in Mt. Vernon, Texas. In 1947 she had a "fainting spell" that was diagnosed by a chiropractor as a heart attack. She is considerably overweight, believes that she has a serious heart condition, and avoids physical exertion. She testified to chest pains, to a "squeaking" noise from her heart so loud that it could be heard in other rooms and that her present condition probably was worse than a year preceding. She also is afflicted with a number of physical ailments unrelated — or only indirectly related — to any existing heart condition.

After high school, Miss King was employed for several months as a practical nurse at a local hospital. She testified that although not assigned heavy tasks she worked only sporadically and "couldn't hold out." For one week she kept books for an uncle, and for less than one month clerked in a five and ten cent store. In an early interview with the Social Security Office, Miss King reported that she had unsuccessfully tried to find work in Mt. Vernon.

Two physicians who had treated Miss King diagnosed her condition as rheumatic heart disease of a static or slowly progressive nature. A third noted that she had an unusual heart murmur and that he had hospitalized her in 1950 with a diagnosis of congenital heart disease with possible secondary rheumatic fever. Dr. Walling, who had treated Miss King from 1958 to the time of application, diagnosed her condition as rheumatic heart disease with mitral stenosis, and indicated that the condition was static; he observed that she was unable to work because of fatigue symptoms but that X-rays taken in 1957 showed her heart normal in size and shape.

A physician who examined Miss King under authorization of the Secretary reported that an electrocardiogram taken after exercise showed multiple premature beats which disappeared with rest. Chest X-rays showed clear lung fields and normal heart shadow. He concluded that Miss King "does not take very good care of herself in the fact that she has allowed herself to become very obese and she smokes cigarettes. By stopping smoking and losing her excess weight and improving her general physical condition she should be able to carry on her normal household activities without difficulty."

The hearing examiner found that Miss King had never been married and was dependent upon her father, an insured individual within the meaning of section 202(d), at the time of his death. This never has been disputed and we treat it as established. After finding that Miss King had suffered from rheumatic fever "or some form of heart disease" when five or six years old, the examiner concluded that any impairment which occurred was remediable² and consequently found "no need to further burden the decision with a lengthy recital of the jobs and opportunities the claimant can do within her many residual capabilities." Since she had not shown "medically determinable physical impairments of long-continued and indefinite duration which will preclude her from engaging in substantial gainful activity," Miss King was held not entitled to benefits.

A request for review was granted by the Appeals Council. After a review of the evidence presented to the hearing examiner, the Council concluded that although Miss King had had rheumatic fever before the age of eighteen the only objective signs of present heart disease were a heart murmur and temporary electrocardiographic changes after exercise. Consequently it held that she presently did not have "significant heart disease" and did have the physical reserve and the educational background to perform at least light work activity. She had not, therefore, been under a "disability" as defined in the Act since the age of eighteen.³ The present action was then filed to obtain judicial review of this determination.

The sole question before the district court, and now before us, is whether the Secretary properly concluded that at the time of the application Miss King was not under a disability which began before the age of eighteen. Section 202(d) (1) uses "disability" as defined in section 223(c), 42 U.S.C.A. § 423(c):

"(2) The term `disability\' means —

(A) 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 * * *."⁴

It is clear from the statutory language that the determination of disability involves a two-step inquiry. First, it is necessary to determine whether "any medically determinable physical or mental impairment" exists. Second, it is necessary to inquire whether this impairment is causally related to an "inability to engage in any substantial gainful activity." See Cyrus v. Celebrezze, 341 F.2d 192, 194 (4th Cir., 1965).

The statutory requirement that an impairment be "medically determinable" has been elaborated upon by the Social Security Administration Regulations, 20 C.F.R. 404.1510(a).⁵ We do not read the findings of the hearing examiner and of the Appeals Council as determining that no impairment meeting the statutory definition was present. While Miss King's testimony as to her symptoms — severe pain, fatigue, shortness of breath, etc. — may have been insufficient to establish an impairment (a question we need not here decide),⁶ the Appeals Council specifically found a presently-existing heart murmur and temporary electrocardiograph changes after exercise. We agree that this constitutes sufficient evidence of "medically discernable * * * physiological aberrations" to establish a "medically determinable physical * * * impairment" under the Regulations. But whether that impairment is substantial enough to constitute a disability within the meaning of the Act involves another inquiry.

In determining whether or not the impairment was serious enough to result in a disability within the meaning of the Act both the hearing examiner and the Appeals Council gave primary consideration to whether the impairment would prevent Miss King from performing the tasks involved in employment situations. Both concluded it would not and that she was physically able to perform "almost any task which would not require arduous or sustained, vigorous physical activity" (in the words of the examiner) or "at least light work activity" (according to the Appeals Council's finding). We accept these as having support in the record.

But this does not end the inquiry. In Gardner v. Smith, 368 F.2d 77 (5th Cir., 1966) we made clear that the determination of disability did not end with a determination that an impairment did not affect the ability of the claimant to perform the work involved in theoretically available employment but must continue to a determination of whether the claimant has "a reasonable opportunity to be hired if jobs were open and applications for employment were being taken." We noted:

"If a physical or mental impairment prevents one from obtaining a job, or from even being considered for the job, he is just as unable to engage in that activity as he would be were he unable to perform the work after he had obtained the employment. The ability to perform work existing in the appropriate labor market requires a determination of whether the claimant would be considered for employment if a job vacancy occurred. If, in practice, the claimant could not reasonably be expected to be hired, then no job exists for him."

The record contains no findings — and almost no inquiry — regarding this important issue. As this court said in Bridges v. Gardner, 368 F.2d 86 (5th Cir., 1966):

"Mere ability to perform * * * jobs is insufficient to justify a denial of disability benefits. Specific findings * * * are necessary on the issue of whether claiment\'s physical condition would prevent him from being hired or from competing for jobs for us to determine whether correct legal standards have

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