Lewis v. Gardner, 17747.

• Decision Date: 08 June 1968
• Docket Number: No. 17747.,17747.
• Citation: 396 F.2d 436
• Parties: Robert C. LEWIS, Plaintiff-Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

396 F.2d 436 (1968)

Robert C. LEWIS, Plaintiff-Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 17747.

United States Court of Appeals Sixth Circuit.

June 8, 1968.

Jesse E. Williams, Detroit, Mich., for appellant.

Walter H. Fleischer, Atty., Dept. of Justice, Washington, D. C., for appellee, Carl Eardley, Acting Asst. Atty. Gen., John C. Eldridge, Atty., Dept. of Justice, Washington, D. C., Lawrence Gubow, U. S. Atty., Detroit, Mich., on the brief.

Before WEICK, Chief Judge, and EDWARDS and PECK, Circuit Judges.

PER CURIAM.

On May 1, 1961, appellant filed an application with the Secretary for a period of disability and disability insurance benefits under the Social Security Act, 42 U.S.C. §§ 416(i) and 423, alleging that he had become disabled in 1951 as a result of a back injury. The Secretary's initial decision denying the application was set aside by the District Court, which remanded the cause for further proceedings. After the taking of additional evidence at a second hearing before a second examiner, the Secretary found that appellant had the residual capacity to engage in light work which was available in the general area of his residence, and again denied the benefits sought. The District Court sustained this determination and this appeal followed.

Under the Act, disability must have been established on or before June 30, 1956, the date appellant last met the statutory earning requirements, and must have continued without interruption to May 1, 1961, the date appellant filed his application.

In 1951, appellant sustained a back injury when the streetcar in which he was riding jumped the tracks. In May of that year a laminectomy was performed at which time two herniated spinal discs were removed. Appellant has subsequently complained of low back pains, limited range of movement of his back, and tremors of the head and hands, all of which allegedly render him disabled.

Appellant was employed at the Goodwill Industries in Detroit as a furniture refinisher from May, 1957, until March, 1961, when he reinjured his back by taking an "awkward step" in alighting from a bus.

In addition to the testimony of the doctor called as an impartial witness at claimant's hearing, the record contains medical reports from ten physicians who had seen appellant during the period from 1951 through 1965. While this evidence clearly establishes an impairment, the point of contention is, as is not uncommon in cases of this nature, whether the impairment was severe enough to preclude appellant from engaging in substantial gainful activity. Of the doctors who examined appellant prior to the time he reinjured his back in 1961, four opined that he was capable of returning to light or sedentary work, while only one suggested that he was disabled.¹ It was only after the reinjury that four of the physicians who examined appellant, including two who had previously concluded that he could return to work, considered him disabled. Further, there is no evidence that medication was prescribed for or taken by appellant to relieve his back pain. Appellant had not been hospitalized for his back ailment during the period from the latter part of 1953 to March, 1961, and had seen the nurse at...