Nelms v. Gardner

• Decision Date: 08 December 1967
• Docket Number: No. 17357.,17357.
• Citation: 386 F.2d 971
• Parties: Charles L. NELMS, Plaintiff-Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

386 F.2d 971 (1967)

Charles L. NELMS, Plaintiff-Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 17357.

United States Court of Appeals Sixth Circuit.

December 8, 1967.

H. H. Gearinger, of Gearinger & Vineyard, Chattanooga, Tenn., for appellant.

Thomas A. Williams, Asst. U. S. Atty., Chattanooga, Tenn., for appellee, J. H. Reddy, U. S. Atty., Chattanooga, Tenn., on the brief.

Before PHILLIPS, PECK and McCREE, Circuit Judges.

JOHN W. PECK, Circuit Judge.

This is an appeal from an order of the District Court for the Eastern District of Tennessee, Southern Division, affirming the Secretary's denial of appellant's application for disability benefits and a period of disability under sections 223 and 216(i) of the Social Security Act. 42 U.S.C. §§ 423, 416(i).

As a result of an industrial accident in 1947, appellant lost four fingers on his left hand for which he received Workmen's Compensation benefits. This impairment, however, did not prevent appellant from returning to gainful employment, and in 1963, while at work, appellant sustained a back injury. Subsequent to this occurrence, appellant has been declared 100% permanently disabled by a Tennessee court for purposes of the Workmen's Compensation Act of Tennessee.

The District Court, after discounting many of the Hearing Examiner's conclusions (the decision of the Hearing Examiner was adopted by the Appeals Council, thus becoming the final decision of the Secretary), determined that "there is no substantial evidence in the record to support any conclusion other than that the plaintiff has, since the date of the accident, been unable to engage in his usual employment, that is, heavy manual labor." The court did, however, rule that the Secretary's decision that appellant had the residual capacity to engage in light, sedentary jobs available in the local geographic area was supported by substantial evidence.

The medical evidence consisting of reports from four physicians was neither exhaustive nor conclusive, as reflected by the District Court's observation that had it been trying the case de novo, it "might have felt it appropriate to seek more evidence. * * *" Dr. Donaldson, an orthopedic surgeon, who stated that x-rays of the lumbar spine were negative for bony pathology, diagnosed "residuals of low back sprain." This doctor considered appellant to be 25-30% disabled (possibly correctable to 15% with surgery), and restricted appellant from bending, stooping, lifting and prolonged weight bearing. Dr. McClary, also an orthopedic specialist, noted no fracture or displacement, diagnosed chronic lumbosacral strain with nerve root compression, and limited appellant from bending or lifting objects. Still another orthopedic surgeon, Dr. Price, found moderate limitation of motion with acute tenderness in dorsolumbar area, and concluded that there was "little or no organic pathology of appellant's back as a result of the alleged accident," and that appellant's symptoms were primarily on a functional basis. Finally, Dr. Sottong, a psychiatrist diagnosed a possible herniated disc, stating that it was "impossible to determine at this time without a myelogram." Dr. Sottong remarked that he could not "make a positive diagnosis of this condition being on a functional basis."

The record may fairly be considered conclusive as to appellant's inability to engage in gainful activities consisting of heavy manual labor, where lifting and bending is required, and in work requiring a relatively high degree of dexterity. Thus, the principal impairment alleged which might preclude appellant's employment in those light, sedentary jobs which demand neither of the above qualifications is his complaint of continuous, knife-like pains in his back. In discounting the severity of the pain complained of, the Secretary did not apply the proper standards.

First, the examiner stated that "general conclusions or naked medical diagnoses are insufficient to establish a medically determinable impairment." This holding was erroneous (Ross v. Gardner, 365 F.2d 554 (6th Cir. 1966); Polly v. Gardner, 364 F.2d 969 (6 Cir., 1966)), as was the corollary ruling that "the existence of a condition must be established by objective medical, clinical or laboratory evidence." Ross v. Gardner, supra; Polly v. Gardner, supra; Branham v. Gardner, 383 F.2d 614 (6th Cir. 1967).^* It is clear from the Hearing Examiner's decision that these errors were prejudicial and the case therefore must be reversed. However, because the record does not establish that appellant is entitled to the benefits sought, rather than being remanded for entry of final judgment, the remand will be for the purpose of reconsideration by the Secretary in light of the correct legal standards, with instructions that either party be permitted to offer further evidence if they so desire.

Also, upon rehearing, appellant should be permitted to show the impropriety of the use of the extra-record medical information apparently noticed by the Examiner: "Severe pain must and does leave its...