Mefford v. Gardner

• Decision Date: 17 August 1967
• Docket Number: No. 16692.,16692.
• Parties: George MEFFORD, Plaintiff-Appellee, v. John W. GARDNER, Secretary of Health, Education, and Welfare, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

383 F.2d 748 (1967)

George MEFFORD, Plaintiff-Appellee, v. John W. GARDNER, Secretary of Health, Education, and Welfare, Defendant-Appellant.

No. 16692.

United States Court of Appeals Sixth Circuit.

August 17, 1967.

COPYRIGHT MATERIAL OMITTED

H. Gene Bell, Knoxville, Tenn., for appellant.

Robert C. McDiarmid, Department of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., David L. Rose, Atty., Department of Justice, Washington, D. C., John H. Reddy, U. S. Atty., Knoxville, Tenn., on brief, for appellee.

Before EDWARDS, Circuit Judge, WEINMAN,^* Chief District Judge, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

The Secretary of Health, Education, and Welfare appealed from a judgment of the District Court reversing the holding of the Secretary which was based on the decision of the Hearing Examiner that appellee Mefford was not totally and permanently disabled.

Appellee is a man 55 years old, who is extremely obese, weighing 350 pounds. He never got beyond the second grade in school. His only labor during his entire lifetime was working in the coal mines.

There were three different hearings in this case before a Hearing Examiner. The first hearing (with which we are not directly concerned, but which furnishes a background to the entire case) was held on July 5, 1961, on applications filed on September 3, 1959, and on February 18, 1960, claiming that appellee had not been able to work since 1956, and in which he stated that after an automobile accident, in which he suffered a fractured skull, 25 years previously, his weight had increased from 180 pounds to 318 pounds; that he lost his job in the coal mines because of fainting spells; that he had a stroke in his right side in 1957 while he was looking for lighter work. He had pain in his heart, numb right arm, high blood pressure, and could do no more work than raise a row of cabbages at his home.

Appellee submitted medical evidence of his attending physician who reported that appellee had a markedly enlarged heart, dyspnea, edema at the base of both lungs, and also at both ankles, marked diminution of reflexes of right arm and right leg, and diagnosed his afflictions as: "Severe obesity; markedly enlarged heart; pulmonary edema; congestive heart failure, cerebrovascular accident with residual diminution of both sensor and motor functions of right upper and lower extremities and also right face." Appellee's attending physician further stated that, in his opinion, appellee was "totally and permanently disabled for any gainful work."

Other medical reports substantiated portions of the attending physician's evidence and included diagnoses of possible cervical disc trouble, and possible periarthritis, right shoulder joint. The least favorable evidence was a report from a clinic which revealed that appellee had been turned down for work in the mines because of hypertension; that he had taken treatment for hypertension, but had discontinued it because it aggravated his shoulder pain; that he had gained weight from the time when his skull had been fractured in the automobile accident, in spite of the fact that he was on a weight reduction diet; that there was muscle tenderness in the region of the right lower chest posteriorly; that he had possible hypertension, and albuminuria, etiology undetermined. The physician at the clinic, on a single examination, and without any experience in the treatment of appellee, noted that insofar as he could determine, claimant was not disabled. In the light of the evidence of the physician who treated appellee, and also that of two other physicians who stated he was disabled from any manual labor, the statement of the physician at the clinic, even on his own assumption, seems speculative and uncertain.

The Hearing Examiner found that the evidence failed to disclose either that the claimant had a cerebral accident or that he had any significant impairment of his cardiovascular system other than that he had high blood pressure. "There is no reason," he found, "to believe that this condition would not respond to proper medication and other medical management, such as medically supervised weight reduction." There was no evidence whatever to support these findings, which were contrary to those of his attending physician. The Appeals Council affirmed the decision of the Hearing Examiner.

From the medical evidence and especially that of his attending physician, as well as his own testimony, it would appear that appellee was in pretty bad shape. His own physician, as mentioned, stated that he was totally and permanently disabled.

However, appellee was a poor man, and an ignorant man. He could not read or write. He had no lawyer to represent him on the first hearing, and he failed to appeal the first decision of the Hearing Examiner to the District Court within the allotted time.

Following the first decision of the Hearing Examiner and Appeals Council, appellee filed a new application on February 13, 1961, with which we are here concerned. There was then a second hearing on the new application before the Hearing Examiner, who again found there was nothing wrong with appellee other than obesity, which could be controlled by diet and medical care. The Appeals Council denied review. Appellee was not represented by counsel on the hearing. But, in some way, appellee secured counsel and appealed the decision to the United States District Court in Knoxville, Tennessee. On the hearing of this appeal, the District Court ruled "that the evidence showed that claimant does suffer from a `heart ailment' which prevented him from working in a coal mine," and entered an order in which the court "directed the Secretary to determine what kind of work claimant could do, and whether such work was available to him in the area in which he lived." For some curious reason, known only to themselves, counsel for the Secretary, in their brief, assumed that Judge Taylor, a brilliant veteran jurist of this circuit, did not understand this simple case; and they say: "The court's order was apparently based upon the mistaken premise that the Hearing Examiner had found that claimant could not engage in his prior occupation of mining coal." How they could come to this conclusion is inexplicable, except that they seem resolved to maintain, in this court, the same argument, in the face of evidence so strongly supporting the appellee.

In any event, it is clear that the case was remanded for the sole purpose of ascertaining what kind of light work appellee could do and if such kind of work was available to him in the area in which he lived.

In its judgment the District Court found:

(1) That appellee was seriously afflicted with a heart condition which prevented him from carrying on the only work that his educational and physical qualifications enabled him to carry on;

(2) That since the Examiner had found that appellee was able to do light work, the court held that the case should be re-referred to the Secretary to take additional proof, if necessary, to determine if the kind of light work which the Examiner found appellee could do, is available to him in the area in which he lives.

When the case came before the Hearing Examiner for the second time, he introduced a great mass of evidence that was not before the court at the time it entered its judgment referring the case to the Secretary for a limited purpose.

On the basis of a small part of this additional evidence which was introduced against the objection of counsel for appellee, the Hearing Examiner found that appellee was disabled in no way whatever from pursuing his customary work, and there was no need to make any specific findings with respect to what light jobs appellee can perform in the area in which he lives.

The Hearing Examiner, however, stated that, in the event it was contemplated that the supplemental hearing was to be limited to the question of what light jobs were available, there were no light jobs in the "immediate area" of appellee's home at Caryville, Tennessee, which claimant could perform; but that, if the area to be taken into consideration included the nearby towns, such as LaFollette, ten miles distant from Caryville, and Clinton, fifteen miles distant from Caryville, there was a probability that several jobs existed in the two largest manufacturing establishments — one, a shirt factory, and the other, a hosiery mill, which appellee, despite his limited education and experience, largely limited to working in coal mines, could do. The Hearing Examiner went on to say that "if these were the only jobs that were available" and if claimant were, in fact, disabled to the extent that he could do only light jobs, the Examiner would conclude that no significant number of jobs were, in fact, available to claimant within a radius of fifteen miles of his home; but that, if the claimant's residence encompasses Oak Ridge and Knoxville, which were forty miles from the place claimant resided, there was "the probable existence" of many jobs there in manufacturing establishments, slaughtering and meat-packing houses, and other types of establishments, that are of a sedentary or semi-sedentary nature which appellee could have performed.

The appellee again appealed to the District Court, claiming that, under the evidence, he was entitled to disability payments, because he could not perform substantial gainful employment. After a hearing on this appeal, Judge Robert L. Taylor entered an order in which he stated that the court "concurs in the findings of the Examiner that the Government has failed to show that there is any work available which claimant can do in the community in which he lives"; and Judge Taylor further found that appellee was permanently and totally disabled within the meaning of the Social Security Act from engaging in a substantial gainful occupation. The decision of the Appeals Council affirming the denial of the claim of appellee was...