Page v. Celebrezze

• Decision Date: 09 January 1963
• Docket Number: No. 19586.,19586.
• Citation: 311 F.2d 757
• Parties: Rosie L. PAGE, Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, United States of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

311 F.2d 757 (1963)

Rosie L. PAGE, Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, United States of America, Appellee.

No. 19586.

United States Court of Appeals Fifth Circuit.

January 9, 1963.

COPYRIGHT MATERIAL OMITTED

Sidney E. Dawson, Dallas, Tex., for appellant.

Barefoot Sanders, U. S. Atty., B. H. Timmins, Jr., Asst. U. S. Atty., Dallas, Tex., for appellee.

Before BROWN and BELL, Circuit Judges, and SIMPSON, District Judge.

JOHN R. BROWN, Circuit Judge.

This appeal tests the correctness of the administrative determination that Claimant was not disabled. 42 U.S.C.A. §§ 416(i), 423. The District Court sustained the Appeals Council which in turn reversed a favorable award of the Hearing Examiner. We disagree and consequently reverse and remand for further administrative proceedings.

The Claimant was a 56-year-old woman with a ninth grade education. Except for her duties as mother and housekeeper, her work record was rather limited. She had about 1952 performed some tasks in connection with inspecting military ammunition. In 1955-56 she was a packer in a wholesale manufacturing establishment. Her last employment was in a laundry. After approximately six months she was forced to quit this work in early 1959 because of nervousness and pain which made her unable to work. One effort in 1959 to resume similar work in a laundry was unsuccessful as she was, she stated, compelled to give this up after just a few days.

We later discuss in a summary way the various medical reports and findings. Were this just a question of resolving factual conflicts including the inevitable contradictions among medical experts, we would readily affirm this award. For our function is a limited one. We neither have, nor seek to exercise, any right to make credibility choices. The statute prescribes that "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * *." 42 U.S. C.A. § 405(g).

But as we and others have pointed out¹ whether conclusions are supported by substantial evidence as the statute prescribes must necessarily take into account the unusual nature of these administrative proceedings. One unusual aspect is the administrative appellate review. Thus, as permitted by statute and regulation, after the Hearing Examiner — who had heard and seen some of the witnesses in person — found disability to exist, the Appeals Council took the case for review on its own motion. In that process the record was considerably augmented by several posthearing medical examinations and reports conducted by consultants for the Department. The Appeals Council was scrupulous in advising Claimant of the addition of these materials and its purpose to consider them. But this itself demonstrates the unusual character of the proceeding since the statute and regulations contemplate that the Hearing Examiner's decision is not only subject to review, but is to be reviewed — more properly retried — on much new evidence. The sheer magnitude of that administrative burden necessitates that ordinarily this new evidence be in the form of written reports with no means available for explanation, testing, or elaboration through the traditional facility of oral testimony.²

We emphasize this not because of any criticism of the legislative system established to cope with this staggering task. Rather, we do so to emphasize that where credibility choices of a nonroutine medical nature have a likely decisive significance, the record must afford some assurance on these factors. We must, first, be certain that the correct standards of evaluation are used. And next, where the issue is not reasonably susceptible of presentation and determination on the basis of mere written, formal reports, some adequate steps must be taken to adapt a procedure which will enable the trier of fact to determine the truth of the matter.

Claimant's principal complaints were those of extreme pain and stiffness. Stiffness began in the hands and in the neck and related areas. From 1959 on, so she said, this extended to her feet, knees and arms. Her husband and a daughter appearing for her on the hearing also testified at length about her condition and activities. Quite obviously the Examiner credited their factual recitation that since 1959 Claimant had not done any outside work at all, and only the very slightest work around her home. Any exertion produced intense nervousness and increased pain. She is unable to exert herself in any way and to relieve her nervousness and pain, regularly takes tranquilizers or similar drugs.

Dr. Rader, her treating osteopathic physician, diagnosed her condition as osteoarthritis involving the vertebral bodies of the cervix and upper three dorsals. He, as did all the others, found very significant rheumatoid arthritis of the fingers of both hands. The existence of this condition was clearly demonstrated on the X rays whereas those of the spine showed only minimal arthritic changes. On physical examination, however, she was able to rotate the head from side to side only through a small arc. Examination by a medical consultant on the Hearing Examiner's request revealed essentially the same thing. This doctor reported that the Claimant "* * * walks very slowly, bent forward 10 degrees * * *. Rotation of her neck is voluntarily limited due to production of pain. She resists having her shoulders lifted above the horizontal * * *" and "* * * she walks with the kind assistance of relatives * * *." In connection with heart studies, he reported a "Masters test was attempted but she was unable to climb the steps because of the muscular and back pain." This consultant's diagnosis was, among other things, "hypertrophic arthritis" of some of the fingers of both hands and, more significant, "severe anxiety state with conversion hysteria."

On the record before the Examiner, not a single witness, lay or medical, undertook even faintly to suggest that Claimant was able to do anything. Her objective behavior and actions, testified to by persons having exceptional opportunity for observation and whose inclination to give testimony of doubtful reliability was discounted by the apparent crediting of it by the Examiner, portrays the picture of a woman unable to do anything. Two doctors categorically expressed positive opinions of inability to work, and the consultant's report, viewed most unfavorably to Claimant, stated nothing more than the absence of objective evidence to support complaints of pain in areas other than the hands.

The Examiner, on this record, concluded that Claimant was disabled within the stringent standard of the Act. Apart from the uncontradicted evidence as to Claimant's fingers and her inability to use her hands or hold onto anything, his decision was based essentially on the conclusion that she was suffering from a "psychosomatic neurosis" or "psychoneurotic disorders." Consequently, so he held, despite the fact that the "medical examiner found no organic basis" for these conditions and "neurologically the claimant was normal" Claimant's "pain, stiffness and restrictions of inability are real to her."³

The Appeals Council, on its own motion, took the case for review. Two additional examinations were made by medical consultants at the expense and request of the Agency. One was an orthopedic surgeon, the other a neurological surgeon. The orthopedist's report was essentially negative as to X rays and objective findings. In the physical examination, motion of Claimant's head and other extremities were limited. Because of asserted pain, Claimant resisted many of the manipulations. This doctor's impression was that Claimant "had a marked psychogenic overlay of her symptoms" which led him to believe that there was not "full cooperation" between the doctor and Claimant and that rather "there was a great deal of hostility" based on her belief that she was being deprived of disability compensation. The neurosurgeon's report likewise reflected the complaints of pain and tenderness in the clinical manipulations. Any "movement of the neck and back was said to aggravate and increase the pain." Likewise, "movement of the feet, legs, fingers, etc. against resistance were all very weak." This doctor concluded with this "Impression: Deferred. This patient obviously has some psychoneurotic tendency which apparently has been quite severe, but I do not believe there is any true psychosis. However I would have to leave this up to a psychiatric evaluation * * *." It is pertinent to state here that no psychiatric examination was thereafter had.

In its decision the Appeals Council first recognized that "the claimant has some arthritis of the fingers which causes...