Massey v. Celebrezze, 15823.

• Decision Date: 07 June 1965
• Docket Number: No. 15823.,15823.
• Citation: 345 F.2d 146
• Parties: Carl MASSEY, Plaintiff-Appellee, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

345 F.2d 146 (1965)

Carl MASSEY, Plaintiff-Appellee, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Defendant-Appellant.

No. 15823.

United States Court of Appeals Sixth Circuit.

April 30, 1965.

As Amended on Denial of Rehearing June 7, 1965.

Dan Jack Combs and Ronald W. May, Pikeville, Ky., for appellant.

John C. Eldridge, Washington, D. C., John W. Douglas, Asst. Atty. Gen., Alan S. Rosenthal, Stephen B. Swartz, Attorneys, Department of Justice, Washington, D. C., George I. Cline, U. S. Atty., Lexington, Ky., on brief, for appellee.

Before O'SULLIVAN, Circuit Judge, WEINMAN, District Judge, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

The Secretary of Health, Education and Welfare appeals from the judgment of the District Court for the Eastern District of Kentucky reversing the decision of the Secretary and directing that Carl Massey, appellee, be found entitled to the payment of disability benefits under the Social Security Act, in accordance with his application therefor. Appellee's claim had been denied by the Hearing Examiner, and, after denial of review by the Appeals Council, the Secretary had adopted the Hearing Examiner's finding.

The Secretary contends that Massey has not proved that his disability has precluded him from substantial gainful employment; that substantial evidence was introduced to show that there were jobs reasonably available to Massey which he was capable of performing; and that the District Court erred in holding that such job opportunities must not only be available to a person who can do only what the applicant can do, but that such job opportunities must also be available in the general area in which applicant lives.

Appellee commenced work as a coal miner when he was sixteen years old and continued work in the coal mines for thirty-five years until, according to his contention, he became disabled, after which he filed his claim for disability benefits.

The earliest medical evidence in this case is a report submitted to the Kentucky Workmen's Compensation Board by Dr. M. D. Flanary of Pikeville, Kentucky, dated February 2, 1949, which showed that appellee's foot and ankle were swollen and inflamed by reason of a fracture of the os calcis with no displacement of the fragments. Appellee was admitted to the hospital on January 14, 1949, and discharged January 25, 1949, and was expected to be able to resume regular work within eight to ten weeks. As a result of this injury, appellee received compensation for twenty-nine weeks for temporary total disability, and was also compensated for ninety-five weeks at $2.70 per week for 15% loss of use of the right foot.

Later, on May 30, 1960, Massey's family physician, Dr. C. B. Pergrem of Elkhorn City, Kentucky, filed a report in connection with appellee's application for disability benefits under the Social Security Act, wherein he reported that appellee was blind in one eye, and that the vision in the remaining eye was very poor. Dr. Pergrem further reported that appellee had acute respiratory attacks which he characterized as "smothering practically all the time"; that he had emphysema, dyspnea and angina on slight exertion; also tachycardia, and a moderately enlarged heart, as well as hypertension, and that his condition was static. Dr. Pergrem concluded his report by stating: "This man is unable to work at anything that he may earn a living — so for all practical purposes he is totally disabled."

On June 23, 1960, the Welfare and Retirement Fund of the United Mine Workers of America had appellee examined at one of the Miners Memorial Hospital Association hospitals. X rays revealed generalized pulmonary fibrosis with micro-nodular and macro-nodular shadows, representing pneumoconiosis. A specimen of urine revealed a rare white blood count.

At the request of the Kentucky State Bureau of Vocational Rehabilitation Services, appellee was examined on June 29, 1960, by Dr. Francis H. Hodges at Pikeville, Kentucky. Blood pressure was 104/80. Pulmonary function studies were done and vital capacity was 3,186 cc's with a predicted normal of 3,585 cc's; the maximum breathing capacity was 60.75 liters per minute with a predicted normal of 104 liters per minute. X ray of the chest showed marked increase in fibrosis throughout the lung area of both lungs. There were some areas of increased radiolucency suggestive of possible early emphysema. Dr. Hodges remarked that the marked changes in the lungs were consistent with possible early pneumoconiosis as often seen in coal miners. While Dr. Hodges observed that appellee did not appear to be functionally disabled to any marked degree, he stated he probably had chronic bronchitis, with marked debility, chiefly due to the inability to expectorate the sputum which accumulated in his bronchial tree.

On October 4 of 1960, appellee was examined by Dr. W. C. Hambley of Pikeville, Kentucky, in connection with appellee's application under the federal disability insurance law. Dr. Hambley, at that time, submitted a form medical report, and later testified for the appellee in a workmen's compensation case on the basis of his findings made in the October 1960 examination and subsequent examinations. In the form medical report, Dr. Hambley's diagnosis was: Blind left eye, with other eye defective; pneumoconiosis; early stage and mild osteoarthritis of the spine. Dr. Hambley thereafter was a witness in the compensation case, which involved a claim made by appellee for workmen's compensation against his former employer, the Blue Diamond Coal Company. In that case, Dr. Hambley testified before the Kentucky Workmen's Compensation Board that, on physical examination, at rest, appellee showed no unusual findings, but that, however, on chest X ray, appellee had generalized pulmonary fibrosis with fine nodulation which is consistent with a diagnosis of second stage silicosis. The diameter of the nodules was estimated as being from two to three millimeters. Dr. Hambley further testified that the subjective complaint of appellee was consistent with, or would corroborate the findings on chest X ray; that X rays made in November of 1961 revealed more definite nodulation than the 1960 X ray; and that he could not recommend appellee for employment to a prospective employer for coal mining or manual labor. When asked if appellee could do any type of work, Dr. Hambley answered: "Not manual work, he could do light work or work in conditions where there wasn't any demand upon his time so that he would have to be under forced work conditions. This man changes in barometric pressure and those things just make it impossible for him to be reliable."

Of particular importance is the medical report of Drs. S. G. Davidson and Henry F. Warden, Jr., of the Bluefield Sanitarium Clinic in Bluefield, West Virginia, which evidence was given in deposition form at the request of the appellee's employer for the purpose of refuting appellee's workmen's compensation claim. Dr. S. G. Davidson testified that he made stereoscopic films of appellee's chest on October 5, 1961, and that he found bilateral nodular fibrosis scattered throughout both sides of the chest with some enlargement of each hilar region; and that, in his opinion, he was suffering from second stage silicosis. Dr. Henry F. Warden, Jr. testified that it was also his conclusion that the appellee was suffering from second stage silicosis, and that pulmonary function studies showed a total vital capacity of 2,425 cc's with a predicted vital capacity of 3,645 cc's, or 67% of predicted vital capacity, and that maximum breathing capacity was 64 liters with a predicted maximum breathing capacity of 107 liters, or 60% of predicted maximum breathing capacity. He also found evidence of emphysema. As a conclusion, solely, of this study of pulmonary function, Dr. Davidson and Dr. Warden stated that appellee had a "restrictive ventilatory insufficiency with 20% disability to do work." Dr. Warden said that he would not recommend that appellee return to work inside a coal mine, but could do "light physical work outdoors." Dr. Warden further stated that he would recommend claimant be hired in "light manual work. This man could lay brick, he could do a lot of things that would not require strenuous effort." Of course, Dr. Warden, in making this statement, was concerned only with the pulmonary condition.

In September of 1962, appellee was examined at the Harlan Memorial Hospital at Harlan, Kentucky, at the request of the appellant Secretary. A physical examination was performed by Dr. Andres Alonso. Dr. Alonso's impressions were: 1) pulmonary fibrosis, 2) slight reduction in hearing bilaterally, and 3) enucleation of the left eye. Chest X rays were interpreted by Dr. T. D. Simmons as showing "mild generalized pulmonary fibrosis, compatible with the diagnosis of simple occupational pneumoconiosis." Dr. William H. Anderson performed pulmonary function studies which revealed a measured vital capacity of 2,600 cc's as compared with a predicted vital capacity of 3,530 cc's; and a maximum breathing capacity measured at 85 liters per minute compared with a predicted maximum breathing capacity of 101 liters per minute.

As bearing upon Massey's claimed disability, we cannot ignore the fact, and the evidence in the case discloses, that, on March 19, 1962, he and the Blue Diamond Coal Company entered into an agreement settling his claim for workmen's compensation, and submitted such agreement to the Kentucky Workmen's Compensation Board. The agreement stated that, commencing November 27, 1959, Massey had become disabled from silicosis, and that the disability amounted to "70% permanent partial disability to the body as a whole"; and it was agreed that Massey would receive from the company, as compensation, the sum of $18.90 weekly for four hundred weeks. This agreement was approved by the Kentucky Workmen's Compensation Board on April 3, 1962. It is...