Landess v. Weinberger
| Citation | 490 F.2d 1187 |
| Decision Date | 12 February 1974 |
| Docket Number | No. 73-1493.,73-1493. |
| Parties | Marie LANDESS, Appellant, v. Casper W. WEINBERGER, Secretary of Health, Education and Welfare, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James R. Reynolds, Ford, Ford & Crow, Kennett, Mo., for appellant.
J. Patrick Glynn, Asst. U. S. Atty., St. Louis, Mo., for appellee.
Before GIBSON, LAY and HEANEY, Circuit Judges.
This is an appeal from the district court's grant of summary judgment in favor of the Secretary of Health, Education and Welfare on the basis that substantial evidence supported the Secretary's denial for disabled widow's insurance benefits under 42 U.S.C. §§ 402(e)(1)(B)(ii) and 405(g).
We reverse with directions to the district court to remand the case to the Secretary for further evidentiary proceedings.
The only contested issue is whether the claimant, Marie Landess, is disabled under the Act. Mrs. Landess is 52 years of age and has been a widow since December 26, 1969. She has not been employed since 1945. At the hearing before the administrative law judge Mrs. Landess was not represented by counsel. She complained of back problems with nerve root symptoms, arthritis in her feet and a hiatus hernia which causes constant heartburn and regurgitation of food on stooping or bending. She said she had been instructed to remain off of her feet. In addition she has a fibroid uterus which causes her to be incapacitated on an intermittent basis. Although surgery has been recommended for her fibroid uterus and hiatus hernia none has been performed. Also myelographic studies for her back have been suggested but not given.
At the hearing held on October 20, 1971,1 sketchy medical reports were submitted by the claimant's two doctors. These reports generally confirm plaintiff's illnesses; however, the reports are silent as to her complaints involving arthritis. Claimant's back condition is diagnosed as a degenerative disc at the space of the first lumbar vertebra with a calcium deposit found at the space of S-4.
The hearing examiner telephoned Mrs. Landess' physician, Dr. A. D. Brookreson of Poplar Bluff, Missouri on September 18, 1970. He again verified her condition but indicated that he felt her hiatus hernia was getting better under treatment.
The Secretary requested an orthopedic examination from Dr. Frank Tull on December 15, 1970. Dr. Tull saw Mrs. Landess on only one occasion. He examined her primarily for her back complaints. He made certain objective findings which included limitations of motions on flexion and extension. He suggested a myelogram as a basis for further study of her back condition. Thereafter two medical advisers for Health, Education and Welfare, Dr. F. S. Morest and Dr. John J. Holcomb, reviewed all of the medical reports submitted by the Secretary and without personal examination of the claimant independently concluded that "all of the medical evidence" shows that "claimant's impairments do not meet or equal the level of severity prescribed in the Listings of Impairments, Appendix to Subpart P of Regulations No. 4."
On the basis of the above evidence the hearing examiner found that the claimant had not sustained her burden of proof to show that she was disabled from engaging in "any gainful activity." The claimant applied to the Appeals Council of the Social Security Administration for review. Thereafter she retained counsel, Mr. James R. Reynolds, who now represents her. Prior to the Appeals Council order affirming the hearing examiner, Mr. Reynolds obtained medical reports from claimant's two physicians, Drs. A. F. and A. D. Brookreson, dated February 4, 1972 and March 30, 1972. The February report from Dr. A. F. Brookreson concluded:
It is my opinion from the physical examination that Mrs. Marie Landess is not able to do manual labor due to the above conditions, but a report from a neurosurgeon, with a myelogram to prove the ruptured disc might give more evidence to the seriousness of her condition.
We agree with the district court's evaluation that the claimant did not sustain her burden of proof that she was unable to engage in any gainful activity by reason of any medically determinable physical impairment. However, our recent decisions have made it clear that the hearing examiner has a duty to fairly and fully develop the matters at issue. See Johnson v. Richardson, 486 F.2d 1023 (8th Cir. 1973); Sellars v. Secretary, 458 F.2d 984 (8th Cir. 1972). The administrative law judge in social security cases is in the peculiar position of acting as an adjudicator while also being charged with developing the facts. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). This is especially true when the claimants appear without counsel. Where it is obvious that the examiner has not fully developed the evidence, we have ruled the Secretary has the duty to reopen the claim until the evidence is sufficiently clear to make a fair determination as to whether the claimant is disabled or not. Sellars, supra, 458 F.2d at 986.
In the instant case, Mrs. Landess' own testimony recites sufficient evidence to show that she is disabled to the extent that she cannot engage in any gainful activity. Of course, this by itself is not enough; there must be medical corroboration of her disability. Here the evidence gathered by the examiner from her physicians does not in any way develop the extent of her disability. Counsel's belated attempt to supplement the record before the Appeals Council by additional reports demonstrates only that Mrs. Landess is disabled and cannot do manual labor. These reports still fall short of disclosing whether Mrs. Landess is so disabled that she cannot pursue any gainful activity. Claimant should be entitled to have the views of her treating physicians more fully developed.
We recognize the difficulties which come from the type of hearing often necessitated in social security cases where much of the medical evidence is submitted in report form. Written medical reports seldom provide a medical witness the opportunity to fully develop the...
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...of law as well. For example, ALJ # 1 failed in his duty to fully develop the record at the first hearing, see Landess v. Weinberger, 490 F.2d 1187, 1189 (8th Cir.1974), as exemplified by the district court's remand for further development of the record. Instead of voluntarily remanding the ......
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Moody v. Heckler, 84-2320.
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...is so "cryptic and without sufficient detail or opinion for a trier of fact to be able to reach a fair conclusion." Landess v. Weinberger, 490 F.2d 1187, 1189 (8th Cir. 1974); see Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000) (Reliance on "the opinions of non-treating, non-examining p......
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...draw upon his own inferences from medical reports.’” Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000), quoting Landess v. Weinberger , 490 F.2d 1187, 1189 (8th Cir. 1974); Willem v. Richardson , 490 F.2d 1247, 1248-49 n.3 (8th Cir. 1974). In Reeder , the Eighth Circuit and the Commission......
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...assessment of what other doctors find is hardly a basis for competent evaluation...” 552 F.2d at 786 (quoting Landess v. Weinberger , 490 F.2d 1187, 1190 (8th Cir. 1974)). See also Carver v. Harris , 634 F.2d at 364. Because there was little evidence contrary to the treating physician’s con......
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...upon his own inferences from medical reports.’” Nevland v. Apfel, 204 F.3d 853, 858 (8 th Cir. 2000), quoting Landess v. Weinberger , 490 F.2d 1187, 1189 (8 th Cir. 1974); Willem v. Richardson , 490 F.2d 1247, 1248-49 n.3 (8 th Cir. 1974). In Reeder , the Eighth Circuit and the Commissioner......