McCann v. Califano, 78-3120

• Decision Date: 22 May 1980
• Docket Number: No. 78-3120,78-3120
• Citation: 621 F.2d 829
• Parties: Hollis McCANN, Plaintiff-Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 829

621 F.2d 829

Hollis McCANN, Plaintiff-Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 78-3120.

United States Court of Appeals Sixth Circuit.

Argued Feb. 12, 1980.

Decided May 22, 1980.

Frank J. Neff, Barkan, Barkan & Neff, Columbus, Ohio, for plaintiff-appellant.

James C. Cissell, U. S. Atty., Joseph E. Kane, II, James E. Rattan, Asst. U. S. Attys., Columbus, Ohio, for defendant-appellee.

Before WEICK, Circuit Judge, and PHILLIPS and PECK, Senior Circuit Judges.

WEICK, Circuit Judge.

Plaintiff-Appellant Hollis McCann has appealed to this court from an order of the District Court granting defendant's motion for summary judgment and affirming the denial by the Secretary of Social Security disability insurance benefits to McCann.

McCann filed his application for disability insurance benefits on March 27, 1973, alleging that he became disabled on January 23, 1972, at age 33, by a nervous disorder and a pinched nerve in his back. He sustained the injury to his back on December 22, 1971, although he continued to work as late as the first week of August 1973, which was after he filed his application for benefits. His application was denied initially and upon consideration by the Bureau of Disability Insurance of the Social Security Administration. His request for a de novo determination by an Administrative Law Judge (A. L. J.) was granted and the A. L. J. conducted a hearing on January 20, 1975, at which McCann, a medical adviser, and a vocational expert testified. The A. L. J. issued his recommended decision denying McCann's application on June 12, 1975. The Appeals Council adopted the recommendation of the judge denying benefits as the final decision of the Secretary on November 13, 1975. McCann then filed the present action in the District Court to review the decision of the Secretary. The District Court, on motion of the Secretary, remanded the case and the Secretary in turn remanded to the A. L. J. who held a hearing on November 17, 1976, at which McCann, a medical adviser, and a vocational expert testified. On November 26, 1976, the A. L. J. issued a recommended decision different from and inconsistent with his initial decision, and found that McCann was disabled within the meaning of the Act. The Appeals Council did not adopt the recommendations of the A. L. J. and found from a consideration of all the evidence that McCann was not totally and permanently disabled and that his impairments have not prevented him from performing substantial gainful work during the period of his insurance coverage and he was not under a "disability" at any time prior to the expiration of said coverage. The Appeals Council found that McCann by reason of his ailments, was not precluded from performing work as a stock clerk, assembler or machine shop operator and by his own statements also has the ability to do carburetor repair work.

In its Memorandum Opinion and Order the District Court discussed the relevant medical evidence. He stated:

There is no clinical test, or diagnostic evidence supporting a finding of a severely disabling back condition. Some examining physicians have found marked muscle spasm in the lumbar area. There is no evidence of neurological deficit or weakness. X-rays have been uniformly normal. A lumbar myelogram and an EMG were both normal. Clinical examinations have found a basically normal range of motion in all joints. There is no atrophy and no muscle weakness. The clinical diagnosis is lumbosacral sprain.

Similarly, there is little or no evidence of a disabling or even substantially impairing psychiatric condition. The administrative law judge noted that plaintiff "spoke softly, quivered, (and) appeared haggard." On December 4, 1973, Dr. Karl W. Kumler reported that plaintiff "related that he has hard severe nervous problems (and that) at times his hands began shaking in an uncontrollable manner." Dr. Kumler himself observed that plaintiff had a "dull affect" and that he was "obviously . . . greatly disabled by his nervous condition." Dr. Kumler was the only examining physician to note a dull affect. All other persons who have mentioned his appearance have noted a normal affect.

On February 19, 1974, Dr. Eugene W. Green reported that plaintiff described his "nerves" as "pain in my back." Plaintiff had a fiancee with whom he had made a very good social and sexual adjustment. He visited his children, parents, or relatives on weekends. Plaintiff maintained an active social life. He especially enjoyed playing cards with his friends. He described his sleep to Dr Green as good. There were no external signs of tension or depression. Dr. Green diagnosed an anxiety reaction manifested by concern for his court problems. ¹

On April 4, 1974, Dr. Beryl M. Oser reported that plaintiff suffered from "tremors, depression and anxiety." In his brief note, Dr. Oser did not describe these conditions. He made no mention of psychiatric symptoms in a March 21, 1972 report. He is an internist, not a psychiatrist.

On May 3, 1974, Dr. Saim Giray, a psychiatrist, reported that plaintiff related being in constant pain which makes him extremely nervous. Dr. Giray could find no evidence of any major psychological problem. He found plaintiff to be "presently compensated and controllable in his anxiety."

On June 22, 1976, Dr. Henry D. Rocco, an orthopedist, reported that on examination plaintiff was "very nervous and anxious." Dr. Rocco diagnosed a "psychophysiological muscle skeletal disorder."

On September 13, 1976, Dr. George A. Perrine, Jr., stated that on examination plaintiff was "a somewhat tremulous but otherwise healthy appearing and well muscled slender...