McMillian v. Schweiker

• Decision Date: 05 January 1983
• Docket Number: No. 82-1247,82-1247
• Citation: 697 F.2d 215
• Parties: James E. McMILLIAN, Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 215

697 F.2d 215

1 Soc.Sec.Rep.Ser. 25

James E. McMILLIAN, Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human

Services, Appellee.

No. 82-1247.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 14, 1982.

Decided Jan. 5, 1983.

Thomas E. Dittmeier, U.S. Atty., Joseph B. Moore, Asst. U.S. Atty., St. Louis, Mo., for appellee; Paul P. Cacioppo, Regional Atty., Region VII, Dept. of Health and Human Services, D. Samuel Borin, Kansas City, Mo., of counsel.

John W. Reid, II, Robin E. Fulton, Schnapp, Graham & Reid, Fredericktown, Mo., for appellant.

Before McMILLIAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

James E. McMillian seeks review of the district court's order affirming the final decision of the Secretary of Health and Human Services denying McMillian's claim for a period of disability and disability insurance benefits under Sections 216(i) and 223 of the Social Security Act, 42 U.S.C. Secs. 416(i) and 423 (1976). The Administrative Law Judge (ALJ) denied McMillian's claim and the Secretary affirmed this ruling. McMillian thereafter sought review before the district court. The district court, on review of a magistrate's recommendation that substantial evidence supported the administrative decision, entered summary judgment in favor of the Secretary. We reverse the judgment of the district court.

I.

The administrative record reveals that McMillian is fifty years old and has an eighth grade education. He worked for eighteen years as a machine operator in a shoe factory until March 5, 1980, when he suffered a stroke. He had previous employment as a farm worker and a potato chip routeman. He also served four years in the Air Force as a supply specialist.

In December, 1975, McMillian had brain tumor surgery. After he returned to his job in the shoe factory in February 1976, he noticed that he could not move his arms and legs as fast as before the brain tumor surgery. While working on March 5, 1980, he began dropping shoes as his fingers moved uncontrollably. McMillian was sent to a physician in whose office he suffered a stroke. He was immediately taken to a hospital where he remained for six weeks and underwent neurosurgery for the removal of a blood clot from his brain.

McMillian filed an application for social security disability benefits on April 25, 1980, claiming that he became disabled on March 5, 1980, due to his stroke and brain surgery. His application was initially disallowed and was denied again upon reconsideration by the Social Security Administration. Pursuant to McMillian's request, an evidentiary hearing was held before an ALJ on January 16, 1981. The ALJ heard the testimony of McMillian, McMillian's four witnesses, and a vocational expert, and received in evidence medical reports from five doctors who examined McMillian.

McMillian testified that since his stroke in 1980 he has been unable to perform many tasks that he formerly was able to perform, such as driving a car, fishing, and gardening. He has difficulty walking because his left leg feels heavy, and has difficulty using his left hand. McMillian's daily activities are now confined to reading, resting, doing some light physical therapy including lifting eight-pound weights, and doing some light housework including washing dishes. McMillian testified, however, that he fatigues and requires rest after any physical exertion, including taking a bath. McMillian also testified that he has experienced difficulty in concentrating and suffers from recurring headaches and hypertension.

The medical evidence includes the reports from five examining physicians. Dr. John Kendig, M.D., a neurosurgeon, operated on McMillian on March 19, 1980 to remove the intracordical blood clot that caused McMillian's stroke. The blood clot was located in the right parietal cortex, in the area of McMillian's tumor surgery in 1975. Dr. Kendig examined McMillian three times after the operation on March 19, 1980, and submitted three medical reports. In the first report, dated May 28, 1980, Dr. Kendig noted that McMillian had limited movement in his left hand and suffered from recurring headaches and nervousness. On August 27, 1980, Dr. Kendig reported that McMillian was making progress, that he could grip with the left hand and could walk slowly, but that he had some restriction of the left homonymous field and experienced hyperflexia. On January 8, 1981, Dr. Kendig examined McMillian and issued a report in which he stated under oath that as of March 5, 1980, McMillian became totally and permanently disabled under the Social Security Act.

Dr. Beyer, D.O., who examined and treated McMillian a number of times since his stroke, issued a medical report on December 1, 1980, in which he stated under oath that as of March 5, 1980, McMillian became totally and permanently disabled under the Social Security Act. Dr. Beyer observed that McMillian had residual weakness in his left extremities with profound weakness and incoordination in his left hand.

Dr. Robert A. Yanover, a neurologist, examined McMillian on June 11, 1980 and reported that he had very limited use of and weakness in his left hand as well as some loss in the use of his left leg, although gross walking and motor movements were not severely impaired. Dr. Yanover also observed that there were no visible abnormalities of speech or mental functioning, but concluded that the prognosis of McMillian was guarded.

On June 26, 1980, Dr. Bentinganin, M.D., examined McMillian on behalf of the Missouri Division of Family Services and certified that McMillian "has a mental and/or physical disability which prevents him from engaging in full time employment on a regular basis at the normal wage rate for that employment for which his age, training, experience or education will fit him." Dr. Bentinganin noted that McMillian's left arm reflexes were sluggish and his left hand movement was slow.

On February 4, 1981, Dr. P.A. George, M.D., an internist, examined McMillian upon the request of the ALJ. Dr. George found that McMillian experienced residual weakness of the left upper extremity (particularly for fine coordinated movements) and the left leg. Dr. George did not administer a treadmill exercise test, concluding that McMillian could not tolerate the test due to his difficulty in walking. He further concluded that during an eight-hour workday, McMillian could sit no more than two or three hours at a time, and no more than a total of three or four hours for an entire eight-hour working day; also, McMillian could stand for less than an hour at a time and could walk for an hour at a time. ^* Dr. George noted that McMillian's mental, verbal, and visual functions appeared normal, but that he had a history of meningioma and mild hypertension.

Thus the medical evidence clearly corroborates McMillian's complaints of residual weakness in his left hand and leg, limited use of his left hand, and difficulty in walking. Furthermore, the physician who examined McMillian most recently concluded that McMillian could not tolerate a treadmill exercise test, could not sit more than two or three hours at a time and no more than four hours in a day. Also, the two physicians having the most contact with McMillian, Drs. Kendig and Beyer, concluded that McMillian was totally and permanently disabled, while another physician, Dr. Bentinganin, certified that McMillian was prevented from engaging in full time employment due to his physical and/or mental impairments. And, while two physicians, Drs. Yanover and George, noted that McMillian's mental and visual functions appeared normal, nothing in the medical evidence specifically contradicts McMillian's complaints of fatigue and difficulty in concentrating.

The ALJ also heard the testimony of McMillian's four witnesses. Mrs. McMillian, the claimant's wife, testified that after the stroke McMillian had been unable to continue such routine activities as fishing and driving a car, that he had very limited use of his left hand and had difficulty walking. George Huffman, the superintendent at the shoe factory where McMillian was employed, testified that although McMillian had been a very good employee in the past, there were no jobs at the factory that McMillian was capable of performing in his present condition. Lawrence White, McMillian's long-time friend and fellow employee at the shoe factory, testified that McMillian's mobility had deteriorated considerably since his stroke, preventing him from returning to his former job at the shoe factory. Flora Scott, another long-time friend, testified that McMillian had trouble using his left leg and left hand.

Finally, the ALJ heard and principally relied upon the testimony of vocational expert Arthur Smith, Ph.D. Dr. Smith was first asked to consider an hypothetical setting out McMillian's age, education, medical history, his weakness in his left hand and left leg, his difficulty in walking, his recurring headaches, and his need for rest after any physical exertion. Based on this hypothetical, Dr. Smith concluded that McMillian could neither return to his former job nor engage in any other substantial gainful employment. The ALJ then asked Dr. Smith to assume that while sitting down McMillian did not need to rest after engaging in physical exertion. Dr. Smith responded that:

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