Mayes v. Secretary of Health, Education, and Welfare

• Decision Date: 07 April 1969
• Docket Number: No. C-18-W-68.,C-18-W-68.
• Citation: 300 F. Supp. 76
• Parties: James T. MAYES, Plaintiff, v. SECRETARY OF HEALTH, EDUCATION, AND WELFARE, Defendant.
• Court: U.S. District Court — Middle District of North Carolina

300 F. Supp. 76

James T. MAYES, Plaintiff, v. SECRETARY OF HEALTH, EDUCATION, AND WELFARE, Defendant.

No. C-18-W-68.

United States District Court M. D. North Carolina, Wilkesboro Division.

September 30, 1968.

Supplemental Opinion April 7, 1969.

John E. Hall and Jerone C. Herring, North Wilkesboro, N. C., for plaintiff.

William H. Murdock, U. S. Atty., and H. Marshall Simpson, Asst. U. S. Atty., Greensboro, N. C., for defendant.

MEMORANDUM AND ORDER

EDWIN M. STANLEY, Chief Judge.

The plaintiff seeks judicial review, pursuant to § 205(g) of the Social Security Act as amended, 42 U.S.C. § 405 (g), of the final decision of the Secretary of Health, Education, and Welfare, denying his claim for Social Security disability benefits.

Plaintiff first filed an application for a period of disability and for disability insurance benefits on September 26, 1963, alleging that he became unable to work on June 23, 1961, due to injuries to his right hip and leg. The application was denied on the ground that plaintiff's impairments did not meet the "disability" test of the Act. On November 30, 1964, plaintiff filed a second application for disability insurance benefits, alleging that he became unable to work on June 23, 1961, due to tuberculosis and broken hip and leg. His 1964 application was initially denied, based upon the evidence then of record and the failure of the plaintiff to furnish additional evidence. Subsequently, based upon a reevaluation of plaintiff's application in light of additional medical evidence, a period of disability was established, beginning October 15, 1962, and plaintiff was awarded disability insurance benefits.

Briefly summarized, the evidence presented in support of the 1964 application disclosed that plaintiff was born on February 27, 1924, and received a seventh-grade education. While at work in Montana with a bridge construction crew, on June 23, 1961, he fell from a bridge and suffered serious fractures of his pelvis and right leg. He was hospitalized for these injuries for six months. In September of 1962, after plaintiff had recovered sufficiently to be ambulatory with crutches, a chest X-ray disclosed pulmonary tuberculosis, and in October of 1962 he entered a sanatorium. He remained a patient in the sanatorium until March 8, 1963, when he left against medical advice. When he left the sanatorium, plaintiff's tuberculosis was considered to be still active, and it was believed that he needed additional hospitalization. In late 1964, plaintiff's pulmonary symptoms worsened and he again entered a tuberculosis sanatorium. Chest X-ray taken at that time showed a large cavity in the upper left lung field. Plaintiff was discharged from the sanatorium in February of 1966, at which time his tuberculosis was arrested and inactive. He was instructed, however, to continue taking medication. After leaving the sanatorium, plaintiff was under the care of Dr. Thomas L. McNiel, North Wilkesboro, North Carolina, a private physician.

On May 26, 1966, plaintiff was informed by letter that additional current medical information was needed in order to make a proper evaluation of his application "to establish disability for Social Security benefits," and it was requested that he be examined by Dr. Thomas E. Fitz, Hickory, North Carolina. Plaintiff was further advised to telephone or write Dr. Fitz so that he could schedule a date for the examination. On May 30, 1966, John E. Hall, Attorney, North Wilkesboro, North Carolina, advised that plaintiff had called to his attention the letter of May 26, 1966, requesting that an appointment be made with Dr. Fitz "with regard to an alleged application to establish disability for social security benefits." Mr. Hall went on to state that there was apparently some misunderstanding since plaintiff was already receiving disability benefits under the Social Security Act, and that he was under the care of Dr. Thomas L. McNiel of North Wilkesboro, who was administering treatment to him "three times each week." On June 3, 1966, defendant advised Mr. Hall that the examination by Dr. Fitz was desired to aid in a review of plaintiff's impairment to determine his continuing eligibility for benefits. Plaintiff contends that he then tried to make an appointment with Dr. Fitz, but was told that no examination was necessary. Dr. Fitz's secretary advised that plaintiff called and stated that he saw no reason for an examination, and that, therefore, he "would not come in." In any event, the defendant, on July 21, 1966, found and determined, based on plaintiff's failure to cooperate, that the plaintiff's disability ceased in July of 1966. On September 9, 1966, plaintiff was advised that the last disability benefit check he was entitled to receive was for the month of September of 1966. Upon request of plaintiff for reconsideration of termination of benefits, it was determined that plaintiff's disability ceased in October of 1966, and plaintiff was notified that his monthly benefit payments would end with the month of December of 1966.

Plaintiff thereafter requested a hearing before a hearing examiner, and the requested hearing was held on May 18, 1967. Plaintiff, his attorney, and a vocational expert appeared at the hearing. On June 2, 1967, the hearing examiner rendered his decision, finding that plaintiff's disability ceased in July of 1966, and that his entitlement to disability insurance benefits terminated with the last payment made in September of 1966. More specifically, the hearing examiner concluded that the medical evidence showed that by December of 1963 plaintiff's orthopedic impairment had improved to the extent that it no longer constituted a disability, and that by October of 1966 his respiratory impairment would not preclude him from engaging in certain light or sedentary occupations identified by the vocational expert.

The Appeals Council granted plaintiff's request for review of the hearing examiner's decision, and received additional medical evidence. On December 12, 1967, the Appeals Council rendered the "final decision" of the Secretary, affirming the hearing examiner's decision, except to modify the date of cessation of disability and termination of disability benefits. More specifically, the Appeals Council, considering the record as a whole, made the following findings:

"1. The record establishes that the claimant's medical impairments diminished to the point that he ceased to be under a `disability,' as defined in the Act, effective with the month of October 1966;

"2. The claimant's period of disability and entitlement to disability insurance benefits were properly terminated effective the last day of December 1966."

On February 11, 1968, plaintiff instituted this action, seeking judicial review of the final decision of the Secretary. Following the filing of an answer and a certified transcript of administrative proceedings, the parties cross-moved for summary judgment.

The issue before the Secretary was whether the plaintiff's "disability" had ceased, and if so as of what date. Since it had previously been determined that plaintiff had established a "disability," as defined by the Act, beginning October 15, 1962, and a resolution of the issue before the Secretary involved a determination of whether the evidence established that his impairment had diminished sufficiently so that it was no longer of such severity as to prevent him from engaging in substantial gainful activity, the issue before the Court is the substantiality of the evidence to support the Secretary's findings. The finding of the Secretary as to any fact, if rationally supported by substantial evidence, is conclusive. Thomas v. Celebrezze, 4 Cir., 331 F.2d 541 (1964). A reviewing court has the power to enter judgment "affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). If the Secretary, on the basis of information obtained, believes that a claimant may have ceased to be under a disability, he may suspend the payment of benefits. 42 U.S.C. § 425.

Effective July 30, 1965, §§ 216(i) and 223(c) (2) of the Social Security Act, 42 U.S.C. §§ 416(i) and 423(c) (2) were amended so as to liberalize the definition of the term "disability." Before the Amendment, the term "disability" was defined to mean "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 to be of long-continued and indefinite duration." After the Amendment, the term was defined to mean "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." (Emphasis supplied.)

Under the 1967 Amendments to the Act, the statutory definition of "disability" was further clarified. The Amendment provides that a claimant is under "a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. § 423. Work which exists in the national economy is defined to mean "work which exists in significant numbers...