Murphy v. Gardner

Decision Date14 June 1967
Docket NumberNo. 18618.,18618.
Citation379 F.2d 1
PartiesMax C. MURPHY, Administrator of the Estate of Mary Albertine Murphy, Deceased, Max C. Murphy, Individually, and Michael Burton Murphy and Rosemary Alice Murphy, Minors, by Max C. Murphy, Their Father and Next Friend, Appellants, v. John W. GARDNER, Secretary of Health, Education and Welfare, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Bill Penix, of Penix & Penix, Jonesboro, Ark., Hartman, Hotz, Fayetteville, Ark., for appellants.

Walter G. Riddick, Asst. U. S. Atty., Little Rock, Ark., for appellee; Robert D. Smith, Jr., U. S. Atty., and Lindsey J. Fairley, Asst. U. S. Atty., Little Rock, Ark., on the brief.

Before VOGEL, Chief Judge, and BLACKMUN and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

This action was instituted by the Administrator of the estate of Mary Albertine Murphy, deceased, under § 205 (g) of the Social Security Act, as amended, 42 U.S.C.A. § 405(g), to review a final decision of the Secretary denying a claim for a period of disability under § 216(i), prior to February 28, 1964, and for monthly disability insurance benefits under § 223 of the Act, 42 U.S.C.A. §§ 416, 423 prior to September, 1964. The District Court affirmed the Secretary's decision. The Administrator of the estate appeals, contending that the decedent became disabled on July 10, 1961.

The question raised on appeal is whether Mrs. Murphy was disabled within the meaning of the above statute on July 10, 1961. If that date were accepted, her two minor children would be entitled to monthly benefits of about $50.00. See 42 U.S.C.A. § 402(d)(5); 42 U.S.C.A. § 414(b).

The decedent worked for the South-western Bell Telephone Company for nearly seventeen years. Prior to 1961, she was in excellent health and was described as a strong, healthy and energetic woman who enjoyed her work and her family, and who actively participated in the affairs of her church and community. In early 1961, she noticed a swelling of her right breast, complained of a loss of strength and energy and general physical weakness, and was absent from work because of her illness for forty-seven days during January and March. Her condition failed to improve, and in July of 1961, on the recommendation of her family doctor, Dr. Faris, she went on a disability leave. The leave of absence did not accomplish the desired results, and in January, 1962, she resigned from her job — again on her doctor's advice.1

There was no significant change in Mrs. Murphy's condition from the time of her resignation until July of 1964. During this period, she remained under the care of Dr. Faris, and was bedridden much of the time and under constant medication. She was, on occasion, able to do some light housework2 with help from her husband. Heavy cleaning was done by outside help. She was unable to engage in outside social activities. She continually complained of breast pain and extreme fatigue.

In July, 1964, Dr. Faris hospitalized her for various (undisclosed) tests, all of which were negative. He then referred her to Dr. Latham, a psychiatrist, who examined her on July 23, 1964. Dr. Latham found her to be suffering from moderately severe psychiatric impairment, depressed, and desirous of receiving any treatment that could prove helpful. He hospitalized the decedent for a month, during which she received electroshock treatments, drugs and psychotherapy. She continued to be treated as an out-patient during September, October and November of 1964. She never reached a point where the psychiatrist considered her to be making an adequate adjustment, and psychiatric impairment remained moderately severe.

In November of 1964, Mrs. Murphy sought additional medical advice from Dr. Orval E. Riggs. After an examination and hospitalization for additional tests, a diagnosis of inflammatory carcinoma of the right breast was made with a prognosis of an expected life span of perhaps six months.3

Mrs. Murphy filed an application for a period of disability and for disability insurance benefits on December 18, 1964, alleging that she became unable to work on July 10, 1961, at the age of thirty-seven. The application was initially allowed from August 31, 1964. However, upon reconsideration and after the Arkansas State Department for Social Security Administration Disability Determination had re-evaluated the evidence, a disability date of February 28, 1964, was established.

A de novo hearing, requested by Mrs. Murphy, was held before a Hearing Examiner of the Department of Health, Education and Welfare, on August 19, 1965, who confirmed the disability date of February 28, 1964.4 This decision became the final decision of the Secretary of Health, Education and Welfare, subject to judicial review, when the Appeals Council denied Mrs. Murphy's request for review on November 22, 1965.

Mrs. Murphy died on the day the Appeals Council adversely decided her case.

The standards that this Court will apply on review of the Secretary's findings have been developed in a series of recent decisions: Marion v. Gardner, 359 F.2d 175 (8th Cir. 1966); Brasher v. Celebrezze, 340 F.2d 413 (8th Cir. 1965); Celebrezze v. Sutton, 338 F.2d 417 (8th Cir. 1964); Celebrezze v. Bolas, 316 F. 2d 498 (8th Cir. 1963). They are applied here.

To establish a statutory disability, it is necessary that there be: (1) a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months,5 (2) an inability to engage in any substantial gainful activity by reason of the impairment. 42 U.S.C.A. § 423; Easttam v. Secretary of Health, Ed. and Welfare, 364 F.2d 509, 511 (8th Cir. 1966); Nichols v. Gardner, 361 F.2d 963-965 (8th Cir. 1966); Celebrezze v. Bolas, supra, 316 F.2d at 501. We shall consider (2) first.

The decedent's ability to engage in substantial gainful employment from July 10, 1961, to February 28, 1964, is not seriously questioned by the appellee. Nor is there evidence to support such a finding. The decedent, her husband, her job supervisor and her neighbors all testified that the claimant was unable to continue at her former job with the telephone company, and affirmed her contention that she was unable to do any other work of a substantial gainful nature. Her family doctor stated categorically that she was unable to return to work during the entire period.

No evidence was presented by the appellee to establish that the decedent could have continued her work with the telephone company or that she could have performed other gainful employment. The appellant clearly sustained her burden of establishing her inability to engage in any substantial gainful employment. See Davidson v. Gardner, 370 F. 2d 803 (6th Cir. 1966); Celebrezze v. Sutton, supra; Lackey v. Celebrezze, 349 F.2d 76 (4th Cir. 1964).

Nor did the appellee present any testimony tending to show that the claimant's failure to seek gainful employment was related to a desire on her part not to be so employed. While the Secretary speculated in his brief that the claimant may have quit work in 1961 because her husband had just graduated from college, it was conceded on oral argument that there was no evidence to support such speculation. Counsel at argument also conceded that the record was void of any evidence indicating that Mrs. Murphy was malingering. We turn, then, to a consideration of the relevant question: Did Mrs. Murphy have a medically determinable physical or mental impairment as of July 10, 1961?

In finding to the contrary, the Secretary concluded that the decedent did not have the required impairment from July 10, 1961, to February 28, 1964, because the existence of the cancer during this period had not been properly established. He justified his position by stating:

"* * * the Act requires * * * that * * * the existence of a condition must be established by objective medical, clinical or laboratory evidence. General conclusions or naked medical diagnoses are insufficient. The record must contain supporting medical findings which are sufficiently precise and detailed to warrant a determination that the impairment is severe. Johnson v. Flemming D.C., 188 F.Supp. 447; Jacobson v. Flemming D.C., 186 F.Supp. 936; Liles v. Flemming D.C., 176 F.Supp. 303; Butler v. Folsom D.C., 167 F.Supp. 684."

The Secretary apparently relied on 20 C.F.R. § 404.1510(a) and (b),6 as well as the cited cases, as precedent for his decision. We do not read either the cases or the regulations as requiring such a holding.7

Unfortunately, cancer detection has not yet reached the point where an early detection by laboratory procedures is always possible. Indeed, in the present case, as Doctors Wisdom and Riggs pointed out, it was difficult, if not impossible, to determine the date of its onset even after the disease has been detected and has reached the point where it could no longer be controlled. A defect, however, does not cease to exist merely because it is difficult to prove. See, e. g., Bramlett v. Ribicoff, 298 F.2d 858 (4th Cir. 1962). Nor is the disability contemplated by the Act restricted to that which is subject of proof of laboratory findings. Page v. Celebrezze, 311 F.2d 757 (5th Cir. 1963); Hayes v. Celebrezze, 311 F.2d 648 (5th Cir. 1963).

While we believe that the record as a whole would have sustained a finding that Mrs. Murphy had a disability because of cancer as early as July 10, 1961, it is not necessary for us to determine whether the record compelled it.

The determination by Dr. Faris that the decedent had "suffered a loss of her physical and mental health" and was in a run-down condition, in July of 1961, "due to nervous causes and emotional strain," was a medical determination of "physical and mental impairment" of her health.

This was not a naked medical opinion. It was fully supported (1) by the deceased's testimony that she was constantly fatigued...

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