Noe v. Weinberger
| Citation | 512 F.2d 588 |
| Decision Date | 18 March 1975 |
| Docket Number | No. 74-1813,74-1813 |
| Parties | Everett V. NOE, Plaintiff-Appellant, v. Caspar WEINBERGER, Secretary of Health, Education & Welfare, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
William A. Watson, Watson & Watson, Middlesboro, Ky., for plaintiff-appellant.
Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., Robert M. Murphy, R. Burl McCoy, Asst. U. S. Attys., for defendant-appellee.
Before EDWARDS, McCREE and MILLER, Circuit Judges.
Appellant Everett V. Noe appeals from the judgment of the United States District Court for the Eastern District of Kentucky which granted summary judgment to the Secretary of Health, Education and Welfare concerning appellant's claim to disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-431 (1970), as amended, (Supp. II, 1972). Our review of the evidentiary record made before the Administrative Law Judge and the Appeals Council of the agency discloses substantial evidence to support the total disability claim of appellant. It discloses no substantial evidence to support the Secretary's conclusion that plaintiff has residual capabilities for "substantial gainful activity." We reverse the District Court and remand for award of benefits.
Appellant Noe is a 52-year-old ex-coal miner from Harlan County, Kentucky. He had five or six years of schooling in Harlan County; he worked for 16 years at labor jobs in mines and for approximately the same period at machine production jobs in various industries in Illinois, Ohio and Kentucky.
At the Social Security Administration hearing (under cross-examination of the Administrative Law Judge 1 who served effectively as the Department's counsel in this case), Noe testified concerning his work in the mines:
A Well, I worked in the mines until, it was about sixteen years there. I worked in the mines, after I come out of the Army and went to work in the mines as soon as I got out of the Army and I believe up in the-I wouldn't say what year in the '50s but it was in the '50s when I quit the mines.
Q What did you do in the mines, Mr. Noe?
A I was what they call a coupler.
Q Coupled cars?
A Yeah.
Q Did you do any other type of work while you worked in the coal mines?
A Yeah, I loaded cars.
Q Loaded, handloaded?
A Yeah.
Q Did you do any other work, any blasting in the mines?
A No.
Q Did you help anybody on the machine, cutting machine?
A I have, what you call this shoveling after the machine, I never did operate it.
Q You never were an engineman or anything like that?
A No, sir.
Q You didn't do any maintenance or repair?
A No.
Noe testified concerning two jobs he held where he operated presses. Then still under cross-examination by the Administrative Law Judge, he described his reasons for quitting his last place of employment in July of 1971:
Q * * * (Y)ou relate you became unable to work on July 5, 1971, and where you were then working at this place in Covington, Kentucky, then?
A Yeah.
Q Why did you quit work in July of '71?
A Well, my back and my hips got to hurting me so bad I just couldn't hardly bear it. Had some lifting to do I get so I couldn't hardly walk.
Noe then described his physical condition at the time of hearing:
Q What functions does your condition prevent you from performing, can you walk?
A Yes, I can walk.
Q Can you stoop down?
A Naw, I can't bend none, I can bend just a little bit and if I bend over any length of time I can't hardly straighten up, it's all I can do to straighten up.
Q How about to squat?
A I can squat down so far and then if I squat all the way down it throws pressure on my hip.
Q How about reaching with your arm does that produce any trouble for you?
A No.
Q How long have you been walking by using a cane?
A About-I believe about six months. It seems to take some weight off of my hip.
Q How long can you stand?
A Well, I can stand quite a while, say forty-five minutes or an hour but sitting down, it really gets me when I'm sitting down.
Q You mean all the time or just after having stood?
A All the time.
Q Whenever you attempt to sit you have-it produces pain?
A I can lay down okay but sitting, driving a car or anything like that just-just murders my back and hip too.
The Administrative Law Judge then questioned him about other sources of income or aid:
Q You mentioned earlier that you were drawing a veterans pension, can you tell me how much that is?
A $130.
Q That's non-service connected?
A Yes, sir.
Q Are you getting any food stamps or any medical card or anything like that?
A No, I don't.
Q No welfare?
A No, never been on welfare, no.
Q And I assume from your description of your disability that it was not connected with the work which you were doing in Covington at the time when you were working there and quit and that you possibly were not eligible for workmen's compensation?
A No, sir, I didn't feel like that I got my back hurt there?
Q And you didn't apply for it?
A No, sir.
Q Did you apply for unemployment compensation?
A Not after you quit on them, no sir.
Q Did you have any insurance of your own, any health benefit insurance of any kind when you quit work?
A I had Blue Cross and Blue Shield.
Q Do you continue to carry that?
A I did as long as I could afford it and then after so long a time I dropped it.
Q Had to drop it and you don't now have it, I take it?
A No sir.
From a medical point of view Noe's testimony was supported by clinical findings in a Veterans Administration medical evaluation which resulted in his being awarded non-service connected disability benefits of $130 a month.
It was also supported by the X-ray findings and diagnosis of Dr. Simmons:
IMPRESSION: 1. Rather severe degenerative disc changes at L-2, 3 and L-4, 5 and perhaps L-5 S-1.
2. More significant is the marginal changes of the vertebrae at L-2 3, particularly in the anterior two thirds about the left side which I believe are productive changes as the result of chronic trauma from degenerative disc disease rather than due to infection or tuberculosis but those two possibilities certainly do exist and since we have no previous lumbosacral spine films I would recommend we get a follow up film in a month and see if there in any significant change but I doubt it.
It was also supported by the history, clinical findings and diagnoses of Noe's physician, Dr. Robert Smith Howard:
I History : (Give complaints, past and present, clinical course, including therapy and response.)
1. Pain over lumbar back radiating down rt. and left legs.
2. Numbess rt. and left legs.
3. Soreness across lumbar back.
Onset one year before admission to the hospital for treatment 11-22-72. He noticed that when he lifted anything his back caused him severe pain. The only relief he noticed was lying down. This pain has progressively grown worse with numbness radiating down his right and left legs. At the present time he has pain even while in the bed. He is unable to bend his back and the slightest effort activates the pain and soreness.
Patient separated, 2 children. Miner 11-12 years, Machine operator.
II Physical Findings : Please show all pertinent findings (with dates).
Height 68 Weight 164 T. 97.8 P. 70 R. 18 B.P. 164/98
The patient is a fairly well developed and nourished 50-year-old man not apparently ill. Eyes, glasses, ears, nose, mouth normal. Neck and chest symmetrical muscular. Lungs filled with fine rales. Heart slow and regular. Abd. muscular. G1 (?) normal. Marked soreness lumbar back with limitation of motion. No notable atrophy lower extremities and some loss muscular control.
III Laboratory and Special Studies:
IV Diagnoses :
1. Lumbar disc syndrome bilateral.
2. Hypertrophic arthritis spine severe.
What we have just quoted from this record represents substantial lay and medical testimony which required the finding (which was made by the Administrative Law Judge) that appellant was completely and totally disabled from his previous occupations of miner and production worker. We also believe that these proofs served to establish a prima facie case that appellant was completely and totally disabled from any substantial gainful employment for in excess of a period of one year.
The Administrative Law Judge in denying appellant's disability claim relied upon two evidentiary items. The first was a medical report from an orthopedic surgeon, Dr. Patterson, to whom the Administrative Law Judge had sent Noe for examination. The second was the answer to a hypothetical question put by the Administrative Law Judge to a vocational expert witness, Dr. Auvenshire, who was called as a witness by the Administrative Law Judge.
Dr. Patterson's report in pertinent part follows:
On October 20, 1971 Mr. Everett Noe was examined and x-rayed in my office. The patient states that he was in the army from 1942-1945. He denies any injuries while in the service, but he said that he did do a lot of heavy lifting in the army and had trouble with his low back when he came out of the service. After the army, he worked in the coal mine for 8 years loading coal. He was never injured in the mines. He then worked in Detroit in a factory as a machine operator polishing the insides of brake drums for 4 or 5 years. He then worked in Illinois in a plastic molding machine (electrical materials) for 6 years. Then he worked for the Monarch Tool Company in Covington, Kentucky doing assembly work on coin shoots for laundry-mats for 4 years and stopped 3 months ago because of low back pain which was going into both hips and legs and especially the right leg to the ankle.
He has never had any particular injury to his low back or legs; but through the years his low back and legs have gotten worse. Actually the leg pain began about a year or so ago. He has never been operated on for his back nor has he been hospitalized for his back. His back was x-rayed at Harlan Hospital...
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