Lane v. Gardner

• Decision Date: 10 March 1967
• Docket Number: No. 16660.,16660.
• Citation: 374 F.2d 612
• Parties: James E. LANE, Plaintiff-Appellee, v. John W. GARDNER, Successor to Anthony J. Celebrezze, Secretary of Health, Education and Welfare, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

374 F.2d 612 (1967)

James E. LANE, Plaintiff-Appellee, v. John W. GARDNER, Successor to Anthony J. Celebrezze, Secretary of Health, Education and Welfare, Defendant-Appellant.

No. 16660.

United States Court of Appeals Sixth Circuit.

March 10, 1967.

Florence Wagman Roisman, Department of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., Alan S. Rosenthal, Max Wild, Attys., Department of Justice, Washington, D. C., John H. Reddy, U. S. Atty., Knoxville, Tenn., on brief, for appellant.

John D. Lockridge, Knoxville, Tenn., William C. Wilson, Albert L. Witt, Knoxville, Tenn., on brief, Ambrose & Wilson, Knoxville, Tenn., of counsel, for appellee.

Before O'SULLIVAN and EDWARDS, Circuit Judges, and CECIL, Senior Circuit Judge.

O'SULLIVAN, Circuit Judge.

This is an appeal by the Secretary of Health, Education and Welfare from a judgment of the United States District Court for the Eastern District of Tennessee directing the granting of a period of disability and disability insurance benefits under the Social Security Act to plaintiff-appellee, James E. Lane. The application of appellee for such benefits was denied by decision of the Secretary which affirmed findings made by its examiner after a hearing at which the applicant-appellee had been represented by counsel. Thereafter, applicant brought suit in said District Court pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to set aside the Secretary's decision. After review of the record made before the Secretary, plaintiff-appellee's motion for summary judgment reversing the Secretary's decision was granted, and benefits awarded. We reverse.

Plaintiff-appellee's entitlement to benefits under the Social Security Act was dependent upon showing that he was unable "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." Sections 216(i) (1) and 223(c) (2) of the Act, 42 U.S.C. §§ 416(i) (1) and 423(c) (2). Plaintiff is suffering from a medically determinable physical impairment. On November 17, 1960, while working in a stockyard in Clinton, Tennessee, Lane was gored by a boar hog whose tusks entered his right leg below the knee severing the common peroneal nerve. Surgery failed to reunite the nerve and Lane's permanent disability is described as a "drop foot". He is unable to elevate his right foot or turn it out laterally at the ankle. At the hearing before the examiner, there was evidence that in addition to this mechanical impairment, Lane suffers pain in his right calf and thigh, and that his ability to walk or stand, even with a fitted brace, has been substantially reduced. Atrophy of his right calf and thigh was also demonstrated. He was fitted with a brace which embodied a spring to raise his foot.

Plaintiff's background and his own description of his disabilities are set out, without disagreement by plaintiff, in appellant's brief as follows:

Appellee\'s background.

"Appellee, alleging disability commencing at the age of 38, was born in 1922 in Tennessee. He left school at the age of 12 after completing third grade. However, he testified that he is virtually unable to read and write.

"Appellee\'s work experience has been confined to fairly heavy manual labor. He cut timber, worked on an automobile assembly line, and as a stock handler. His work experience includes general agricultural duties particularly around dairy farms and handling livestock. Additionally, he cleaned houses for rental, and laid pipe for gas lines.

"Appellee lives with his wife and six minor children in a house situated on 36 acres of farmland which he rents for $12 a year. He receives $12.55 a week in workmen\'s compensation for his injury pursuant to an award of total disability by the Circuit Court of Anderson County, Tennessee. Additionally, his wife and children receive welfare assistance of approximately $110 a month."

Appellee\'s description of his disabilities.

"At the hearing, appellee evaluated his impairment as disabling. He said that he could not stand steadily or walk in any but level areas without a cane; nor could he jump or run. He stated that his right leg was shorter and required a built-up shoe with which he can balance himself so long as he is wearing a brace. He stated that he could climb stairs at his own pace but could not crawl because of the pain in his knee. He testified that he was unable to turn as well as he had been able to before the injury and that he can only bear a little weight. He stated that he could not do knee bends but that he can stoop from the hips so long as he puts one leg out. He testified that he could not crouch or sit as well as before because of the pain in his hip and leg and that he could kneel on one knee only. He stated that so long as he put one foot out, he was able to reach as well as before his accident but that he could not lift, carry, push or pull as well as before his accident. He did testify, however, that he could handle and use his fingers as well as before the injury.

"There also appeared on appellee\'s behalf his wife, Ruby Lane, and his aunt, Mrs. Ramsey Daugherty. Both of them corroborated appellee\'s assessment of his impairment."

We then have a case where plaintiff, due to permanent impairment, admittedly is unable to engage in the work by which he had provided himself with a livelihood prior to his injury. In such situation it is the rule of this Circuit that it became the Secretary's burden, if benefits were to be denied, to establish that plaintiff-appellee was nevertheless able to engage in lighter work in jobs which existed and were being performed in the vicinity of plaintiff's place of residence. May v. Gardner, 362 F.2d 616, 618 (CA 6, 1966); Slone v. Gardner, 355 F.2d 485, 486, 487 (CA 6, 1966). The Secretary and his examiner essayed to meet this burden.

The record contains expressions of opinions by various doctors as to plaintiff's injuries. Some of these had treated plaintiff and performed surgery on his right leg. One, who had not directly examined plaintiff, expressed an opinion upon a review of the entire medical history of plaintiff. None of these witnesses said that plaintiff was totally disabled and, rather, gave varying estimates as to the percentage of plaintiff's disabilities and his capacity for work. One doctor concluded that plaintiff was "not able to do hard work." Another said, "this man has a small disability in the lower right extremity. He is certainly not severely disabled, in my opinion"; this witness expressed the view that plaintiff had a permanent partial disability to his body as a whole of 30%. A third doctor who had performed surgery on the injured leg after an examination some two years later when plaintiff had been equipped with a foot brace, "advised at that time that he plaintiff may seek light employment," assessing the disability in the injured leg at 65%. A fourth doctor who examined plaintiff after his disability reached its permanent status and had before him reports of the three earlier attending doctors, said that plaintiff had a 40% disability in the injured leg and then commented that "this might be reduced by some fixation or orthopedic procedure at the ankle. I believe, however, that the patient can function in his previous activities without too much difficulty with what he has at the present time."

A doctor who made the strongest case for plaintiff placed his total disability at 30%, with a 90% loss of use of the injured leg itself. He further said that any work that plaintiff might perform "would have to be some occupation not involving walking to any extent or standing for any prolonged period," but he did not think that plaintiff's condition was especially painful; he said that it was debatable whether plaintiff's disability was as serious as the loss of a leg, although observing that "sometimes injuries to extremities are worse than not having them."

A final witness, a professor and full time neurologist at Vanderbilt Hospital, was given the full medical history of plaintiff and was requested to answer specific questions composed and submitted to him by the Secretary's examiner. This witness remarked that "a properly fitted drop-foot brace offers excellent aid in overcoming this plaintiff's handicap. In fact, with such a brace some people have developed a normal appearing gait and can perform quite normally." He expressed an opinion that plaintiff retained full capacity for balancing, crawling, standing, turning, stooping, crouching, kneeling, sitting, reaching, lifting, carrying, throwing, pushing, pulling, handling and fingering, and that he retained only partial capacity to engage in walking, jumping, running and climbing. The witness concluded that "this type of injury is usually compatible with a normal and active occupational life even when permanent. Since an appropriate brace allows much of the disability to be minimized, it is possible for such patients to engage in usual occupations."

The credibility of these professional witnesses is not questioned. It is true that the plaintiff himself, corroborated by his wife and an aunt, claimed inability to do some of the things that the doctors said he could do. And it is true that plaintiff has had no job since the accident — but it is clear that he has not seriously sought to find work of a character which the evidence discloses he could perform. His...