Mitchell v. Weinberger, Civ. A. No. T-5489.

• Court: U.S. District Court — District of Kansas
• Writing for the Court: ROGERS
• Citation: Mitchell v. Weinberger, 404 F.Supp. 1213 (D. Kan. 1975)
• Decision Date: 03 September 1975
• Docket Number: Civ. A. No. T-5489.
• Parties: Douglas L. MITCHELL, Plaintiff, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant.

404 F. Supp. 1213

Douglas L. MITCHELL, Plaintiff, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant.

Civ. A. No. T-5489.

United States District Court, D. Kansas.

September 3, 1975.

N. Royce Nelson, Salina, Kan., for plaintiff.

Roger K. Weatherby, Asst. U. S. Atty., Topeka, Kan., for defendant.

ORDER AND MEMORANDUM OF DECISION

ROGERS, District Judge.

This proceeding was instituted by the plaintiff against the Secretary of Health, Education, and Welfare as is authorized by and pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C.A. Section 405(g), for the purpose of obtaining a judicial review of a final decision of the Secretary in denying his application for a period of disability or disability insurance benefits under the laws and regulations governing the Social Security Act (42 U.S.C.A. Section 423 and Section 416(i) as amended.

The record indicates that on December 15, 1971, plaintiff applied for a period of disability and for disability insurance benefits. This was denied, reconsidered, and denied again, resulting in claimant requesting a hearing on September 5, 1972. The hearing was held and benefits were again denied on June 20, 1973, by Administrative Law Judge Richard L. Edgerton. This decision was adopted as the final decision of the Secretary by the Appeals Council on October 10, 1973. This action for judicial review was filed on December 6, 1973, and comes before the Court on cross motions for summary judgment.

The record indicates that the plaintiff was born on August 19, 1925. He has a high school education and special training as a printer. He has worked as a printer and in construction as a general laborer. Plaintiff alleges a disability onset date of July 7, 1971, stemming generally from kidney and stomach ailments. The Administrative Law Judge concluded that "the claimant's medical condition is not of a severity as to prevent him from engaging in substantial and gainful work activity for a continuous 12 month period" as required by 42 U.S.C.A. 423(d)(1)(A), and denied benefits. This now final conclusion is the subject of this Court's review.

The scope of review by this Court is a limited one. In Gardner v. Bishop, 362 F.2d 917, 919 (10th Cir. 1966), the Court noted that the findings of fact by the Secretary and the inferences drawn therefrom should not be disturbed by a reviewing court, "if there is substantial evidence to support them". Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." On the other hand, it is to be remembered that this Act is to be construed liberally in favor of those seeking its benefits. (Davidson v. Gardner, 370 F.2d 803 (6th Cir. 1966); Dvorak v. Celebrezze, 345 F.2d 894 (10th Cir. 1965); Ketcherside v. Celebrezze, 209 F.Supp. 226 (D.Kan.1962))

Although it is clear that the Court may not try a case de novo, it cannot and will not abdicate its traditional function to review the entire record so as to determine whether the findings made by the Secretary are supported by substantial evidence. (Heilman v. Finch, T-4459 (D.Kan. January 16, 1970, unpublished))

There are two steps in determining a disability: (1) determination of a medically determinable physical impairment, and (2) an inability to engage in substantial gainful employment caused by that impairment. (Lucas v. Richardson, 348 F.Supp. 1156, 1161 (D.Kan. 1972)). While the facts will be examined in closer detail shortly, it is noted at this point that the record clearly establishes a medical disability of sufficient magnitude to prevent plaintiff from returning to his former employment as printer or construction worker. Defendant admits that the vocational expert found this to be the case. Plaintiff's testimony that he cannot stand long enough at one time nor lift certain loads necessary to being a printer is uncontradicted. Further, the vocational expert clearly indicated that at best plaintiff could do only "light work." Once this showing was made by the plaintiff, under the rule of Gardner v. Brian, 369 F.2d 443 (10th Cir. 1966), the burden shifted to the Secretary to show the reasonable availability of suitable positions in which a person of the claimant's qualifications could work. While there has been some argument that the Gardner v. Brian rule was changed by the 1967 amendments to the Act in question (see Lucas v. Richardson, 348 F.Supp. 1156 (D.Kan. 1972)), it is generally accepted that this rule is still in effect. (Hernandez v. Weinberger, 493 F.2d 1120 (1st Cir. 1974); Hicks v. Gardner, 393 F.2d 299 (4th Cir. 1968); Herridge v. Richardson, 464 F.2d 198 (5th Cir. 1972); Garrett v. Finch, 436 F.2d 15 (6th Cir. 1970); Stark v. Weinberger, 497 F.2d 1092 (7th Cir. 1974); and Meneses v. Secretary of Health, Education and Welfare, 143 U.S.App.D.C. 81, 442 F.2d 803 (1971)). Also, the 10th Circuit seems to assume the continued existence of the rule. (See Keating v. Secretary of Health, Education and Welfare of U. S., 468 F.2d 788, 790-1 (10th Cir. 1972)).

It is the holding of this Court that there is no substantial evidence in the record to support the Secretary's finding that no disability exists. Rather, the evidence should convince any reasonable mind that plaintiff is unable to engage in substantial gainful activity due to his medical problems.

The record further shows that plaintiff suffers from kidney ailments that date from World War II when he was given a medical discharge, rated at 10% disabled. Plaintiff is now receiving a 100% service-connected disability benefits pension from the Veterans Administration.

Plaintiff is a chronic "stone maker" and has passed some 300 kidney stones since World War II. In 1958, 1/3 of one of plaintiff's kidneys was removed and from that time until 1970, he visited a Veterans Administration Hospital approximately once a year — whenever his condition worsened.

Plaintiff worked as a printer from 1958 to 1970 and then switched to construction work until July of 1971. This was his last gainful employment. Plaintiff claims and the record clearly indicates that in recent years he has with increasing severity suffered problems with the passing of kidney stones and a related duodenal ulcer. According to the plaintiff, every two weeks or so he passes a kidney stone. The passing may take from a few hours to a few weeks, during which time plaintiff suffers severe pain, and experiences nausea, chills, fever, bowel trouble and other complications. From July 1, 1971, to the hearing date (approximately 1½ to 2 years), plaintiff was hospitalized at least 7 times and spent more than 80 days in the hospital. In the first year after the alleged disability onset date, he spent 63 days in the hospital. Further, the record shows that on doctor's advice, plaintiff has moved closer to a Veterans Administration hospital where he goes on a regular bi-monthly basis. Even when not hospitalized, claimant must be given an injection of pain killer when he passes a stone (as often as once a month) and is frequently bedridden for up to 10 days at a time, and thus unable to engage in any substantial activity.

The record discloses additional problems with plaintiff's ulcer which acts up every three weeks or so and may continue for another two or three weeks, causing plaintiff severe pain.

Additional detail as to plaintiff's maladies would only be cumulative in effect; the important point is the effect on his ability to engage in substantial gainful employment. The record indicates that if plaintiff stands for very long, his kidneys swell and he must return to the hospital. He can bend for no longer than 10 minutes and squat for no longer than 15 minutes without pain. He can sit for no longer than 30 or 40 minutes at a time, and driving is painful for him. He can lift no more than 12 or 15 pounds and cannot walk very far.

Because he cannot stand or lift, plaintiff cannot return to his printing job. Further, he is unfamiliar with the new process of offset printing which would make it more difficult for him to obtain a job even if he were physically able. Because he cannot exert himself, plaintiff is unable to return to his work as a general construction laborer.

At the alleged onset date of July, 1971, plaintiff was working construction, but lost this job due to numerous subsequent hospitalizations. In December, 1971, he obtained a job at a feed lot and worked a week, but was again hospitalized with a kidney attack. Then plaintiff attempted to sell insurance; however, due to his attacks and resulting hospitalizations, at least two employers have terminated his employment in that field. Plaintiff's wife testified that every time plaintiff gets a job he is required to go to the hospital for two weeks and has no job when released.

Recently, plaintiff applied for jobs as a plumber, at a service station, at a ceramic plant and at other industries, but was turned down for all because of his medical problems.

Plaintiff's problems, as indicated, have become more severe in recent years. The Veterans Administration Hospital report indicated that it is expected that plaintiff will continue to have difficulty with the passage of kidney stones. At the time of hearing, plaintiff apparently had 28 stones in his kidneys and plaintiff's wife testified that a doctor told her that if one of the stones interferes with the operation of the kidney, her husband will die.

In summary, plaintiff frequently passes kidney stones. When he does so he is either hospitalized or bedridden with pain. The medical expert who testified at the hearing stated that a person would be a "darned fool" to attempt to work while passing kidney stones because of the "severe pain."

In light of this evidence, it is impossible for this Court to conclude that any substantial evidence supports the Secretary's decision in this case. There is no reason to believe that this man can engage in...