Miracle v. Celebrezze, 15992.

• Citation: 351 F.2d 361
• Decision Date: 16 September 1965
• Docket Number: No. 15992.,15992.
• Parties: William T. MIRACLE, Plaintiff-Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education, and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

351 F.2d 361 (1965)

William T. MIRACLE, Plaintiff-Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education, and Welfare, Defendant-Appellee.

No. 15992.

United States Court of Appeals Sixth Circuit.

September 16, 1965.

COPYRIGHT MATERIAL OMITTED

Daniel J. Tribell, Middlesboro, Ky., for appellant.

Charles G. Heyd, Asst. U. S. Atty., Cincinnati, Ohio, Joseph P. Kinneary, U. S. Atty., Cincinnati, Ohio, on brief, for appellee.

Before CECIL and O'SULLIVAN, Circuit Judges, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

This is an appeal from an order of the district court dismissing appellant's claim for disability benefits under Section 205(g) of the Social Security Act.

The background of the case is as follows: Appellant, William T. Miracle, is now a man fifty-six years old. He finished the second grade at school and started the third grade, which he did not complete. He got only that far up to the age of eighteen, because he had to work helping his father to support the family and, therefore, could go to school only a very little from time to time. As he stated: "I was practically grown before I got to go to school." He could never hold down a job requiring the slightest reading or writing. From childhood, his life was one of hard labor. He came from Cubbage, a mountain village at the head of Brownie's Creek, a hollow in Bell County, Kentucky. This is a part of what is called Appalachia, one of the areas of our country afflicted, for a considerable time in the past, with unemployment and consequent poverty. Appellant, however, at different periods of his life sought and found employment not only in Kentucky, but in Tennessee, Kansas, and Ohio.

When he started to work, as a boy of sixteen, it was with the L&N Railroad, cutting and logging timbers and making mining props. He was afterward employed in hauling logs and then he worked on his own, splitting the timbers with iron wedges and steel hammers, subsequently selling the timbers to the mines. He also hired men to do the same work that he was doing and paid them by the day. He hauled the logs out of the woods with horses and mules which he came to own, and afterward sawed the logs. Thereafter, he went back home and made timbers for the mines; and their trucks would come and get them. He then worked for a company "road-swamping" — clearing roads up to the logs so that the teams could get through to them. After that, he worked for a powder plant, unloading lumber off the cars. At that time he hurt his back while he was carrying a heavy piece of timber and his feet slipped on the frozen sleet. Later, he went into construction work, building conveyor lines and houses up to the mines and tipples down at the railroad. He was only a common laborer in performing this work. When he built tipples, he used hand saws, electric drills, and carpenter's hand tools. During these two years, his work was very satisfactory, according to his supervisor. Appellant stated: "They showed me the figures on the square they wanted the timber cut on like that but I can't say I am a carpenter." Afterward, he worked for his brother in the woods for two or three months, and then began driving a bus for him. In the woods he cut roads and hauled logs. When the mines "went slack" in 1955, and he lost his job there, he started trucking logs and buying them. Later, he moved from Kentucky to Tennessee and afterward traded his place in Kentucky for one in Tennessee, where he was able to sell a truckload of timbers a month. He also had some pine on his place which he sold for pulp wood. After about two years, in 1959, when, as appellant said, he became "disable to work" he moved to Ohio and sought work in September 1959, after telling his employer that he was unable to do any lifting. He started work, sweeping the floors and dusting machinery. His eyesight was bad and he could not competently sweep or dust. This work was too much for him.

He afterward assisted in unloading some cars. This, he also was unable to do. Although he was paid $1.25 an hour, he could not hold down the job because, as he claimed, of the pain resulting from his spinal condition. In fact, he was discharged on the ground that he could not do the work. His employer, however, after trying him in these different jobs and finding that he could not do the dusting, sweeping, or lifting work, kept him on for two or three months "out of sympathy" as his employer stated, and they parted on friendly terms.

There were two hearings and two decisions in the administrative proceedings in the case. In the first hearing, on September 30, 1960, Edward Moeller, the Hearing Examiner, after reciting certain evidence relating to appellant's osteoarthritis and abnormalities of the cervical and lumbo sacral spine, held that the medical evidence did not disclose that appellant's impairments were of sufficient severity as to preclude all substantial gainful activity and that, while such evidence might indicate that appellant may not be able to tolerate hard manual labor, there appeared to be no restriction on moderate work activity; and the Hearing Examiner, in consideration of the foregoing, decided that appellant was not entitled to disability benefits. Appellant then sought review before the Appeals Council; and his request for review was denied on the ground that "a formal review of the Hearing Examiner's decision would result in no advantage to the claimant."

Appellant then filed a complaint in the district court on the ground that the findings of the Hearing Examiner and the affirmance thereof by the Appeals Council were erroneous. He asked the court to reverse the findings and decision and determine that appellant was entitled to disability benefits. However, after the filing of appellant's complaint in the district court, since there was no evidence to substantiate the Hearing Examiner's holding that appellant's impairments were not of sufficient severity as to preclude all substantial gainful activity, in that there was no evidence of what kind of work appellant could perform, and what practical opportunities there were for a man afflicted as he was, counsel for appellant moved to remand the cause for the purpose of taking further evidence on the ground that there was "a total absence of evidence as to the employment opportunities available to a man who can do only what the plaintiff, Mr. Miracle, can do." In accordance with our former rulings, the district court found appellant's motion well taken, denied the government's motion for a summary judgment, and entered an order remanding the case to the Secretary of Health, Education and Welfare "for the purpose of taking further evidence as to the following issues:

"A. What can the plaintiff do?

"B. What employment opportunities are there for a man who can do only what the plaintiff can do."

On the remand, a different Hearing Examiner, J. C. Goodwin, on January 28, 1963, considered the prior testimony and proofs, took additional testimony and proofs and, in his recommended decision (which was adopted by the Appeals Council), found that appellant had not established that he had impairments of sufficient severity as to preclude him from engaging in any substantial gainful activity, at any time he met the special earnings requirement of the Act, and continuing thereafter through the date his application was filed.

We come then to the controlling consideration in the case — appellant's spinal condition and his pain, and whether he was able to engage in substantial gainful employment.

At the outset of the Hearing Examiner's recommended decision on the second hearing, which formed the basis of the decision of the Appeals Council and of the district court denying appellant disability benefits, the Hearing Examiner stated to appellant: "The rules of evidence are not followed here, as you were probably advised in your former hearing, because I am primarily interested in obtaining all of the facts. * *" The Social Security Act must be administered with much informality, and the satisfaction of the claimant's statutory burden is to be judged in a practical way. Fowler v. Ribicoff, 197 F.Supp. 508 (D.C. W.D. So. Carolina). On the hearing, various statements of physicians and others were marked as exhibits and considered as evidence, although those who made the statements were not sworn as witnesses, and, in many cases, statements, not made in the ordinary course of business or the keeping of records, were also marked as exhibits and considered in evidence. This is the customary informal way of hearing a case for disability benefits under the Social Security Act, and we mention it only to indicate that, on review, we consider the same statements as evidence in a like manner as did the Hearing Examiner and the Appeals Council.

On the second hearing, after remand, J. C. Goodwin, Hearing Examiner, in his decision stated: "There was a history of two previous injuries, one in 1937 when he was pushing a cart in the coal mines and fell down and hurt his back, and another injury in 1942, when he was lifting timber."

In a statement made by Dr. Charles B. Stacy, M.D., of Pineville, Kentucky, on August 22, 1958, he reported:

"Mr. W. T. Miracle has been treated by me over a period of time and on 7/15/58 another x-ray was taken of the lumbar vertebrae. This showed a 6th lumbar vertebra with sacralization of the transverse process of the last vertebra on the left side. There is hypertrophic spurring representing an arthritic process.

"He was seen here at the hospital clinic in 1950 by Dr. Willien, the orthopedic consultant who believed he had osteoarthritis with probable disc lesion. He recommended and fitted a low back brace which he now wears. He states he cannot do his usual work such as farm work without considerable pain. Undoubtedly he is disabled." (Emphasis supplied.)

On July 29, 1959, Dr. Stacy again examined appellant and rendered a medical report, stating...