Polly v. Gardner
| Decision Date | 15 August 1966 |
| Docket Number | No. 16590.,16590. |
| Parties | George E. POLLY, Plaintiff-Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Ronald W. May, Combs & May, Pikeville, Ky., on brief for appellant.
John W. Douglas, Asst. Atty. Gen., Sherman L. Cohn, Harvey L. Zuckman, Attorneys, Department of Justice, Washington, D. C., George I. Cline, U. S. Atty., Lexington, Ky., on brief, for appellee.
Before O'SULLIVAN and EDWARDS, Circuit Judges, and McALLISTER, Senior Circuit Judge.
George E. Polly filed his application for disability benefits under the Social Security Act, Title 42 U.S.C.A. Sec. 423. After a hearing, the Hearing Examiner denied appellant any period of disability or disability insurance benefits. On appeal, the Appeals Council refused to review the decision, affirming, in effect, the Hearing Examiner. Thereafter, appellant Polly filed an action in the United States District Court against the Secretary of Health, Education and Welfare, pursuant to Section 205(g) of the Social Security Act, as amended, Title 42 U.S. C.A. Sec. 405(g), seeking to have the decision against him reversed and set aside, and that he be granted a period of disability and disability insurance benefits. After a hearing, the district court affirmed the decision of the Hearing Examiner and dismissed appellant's complaint on the ground that he had failed, by competent medical evidence, to show that he was suffering from an impairment, or a combination of impairments, of such severity as to preclude him from engaging in any substantial activity, and that he was not entitled to the establishment of a period of disability or to disability insurance benefits.
Mr. Polly, at the time he filed his application on September 6, 1962, was 58 years old and, therefore, is now 62. He has a twelfth-grade education and was, in 1929, awarded a professional teaching certificate which authorized him to teach through the first eight grades of elementary school, which he did, for about two years. Except for this, his entire adult history for thirty-one years has been that of an underground coal miner, either operating or helping on a loading machine.
He testified that he became disabled from working on September 26, 1962, due to heart and lung trouble, and hardening of the arteries, and since becoming disabled, he has had difficulty and pain in breathing and has had to limit his activities. He no longer does any chores around the home and has been unsuccessful in attempts to work in his garden. He walks approximately two city blocks each day, and, although he owns a power lawnmower, he is unable to mow his lawn. He has driven very little in the last six or seven years, according to his testimony, and has given up his hobbies of hunting and fishing. His principal hobby was working in his little workshop, but he had to give this up about three years before his appearance before the Hearing Examiner on December 6, 1963. He further testified that his family physician cautioned him, on each visit, not to exert himself in any way.
The earliest medical evidence appearing of record is that of the Miners Memorial Hospital Association, of December 13, 1960, which was signed by Dr. Allyn F. Judd. This examination consisted of a physical examination, laboratory tests, and chest X-rays. Dr. Judd's impressions were: Possible chronic sinusitis with bilateral nasal congestion; possible bronchial asthma, and left inguinal hernia.
Two medical reports were filed by Dr. T. E. Crawford of Whitesburg, Kentucky. In the first report dated February 13, 1963, Dr. Crawford noted that subjective complaints were smothering and shortness of breath, and noted medicines prescribed for appellant, but the doctor's notes were illegible. The second, a letter report dated December 7, 1963, states, "this certifies that I have for the past year or so treated this man for chronic bronchial asthma, chronic myocarditis; and he is permanently disabled."
Dr. Henry W. Post of Louisville, Kentucky, filed a form medical report on February 18, 1963, giving subjective symptoms of palpitation, dyspnea on exertion. An EKG revealed a 2:1 AV block, chest fluoroscopy, increased bronchialvascular markings and classified node. Dyspnea was noted on activity or stress. Emphysema was noted clinically. Dr Post's diagnoses were arteriosclerotic heart disease and pulmonary emphysema. Under "Remarks," Dr. Post noted:
On March 26, 1963, the plaintiff was given a consultative medical examination by Dr. Gonzales of Norton, Virginia, at the request of the appellee-Secretary, which disclosed: On physical examination blood pressure was 160/100; weight, 135½ pounds; height, 70 inches. His general appearance was fairly developed and nourished; he was ambulatory, obviously nervous, and smoked continuously with the fingers visibly trembling. On the examination of the extremities, Dr. Gonzales noted that there was some mottling on hanging both legs, which appeared in about three minutes; there was immediate pallor on rising; the veins were full; Homan's sign, negative; X-rays of the chest revealed calcification and haziness and a fibrotic reticulation in the lung roots; pulmonary periphery and costophrenic angles were clear; diaphragm, heart and thoracic cage showed no significant abnormality; X-ray impression was slight fibrosis, otherwise normal chest. Pulmonary function studies revealed marked impairment. Maximum breathing capacity, before Isuprel was 65% and after Isuprel, 71.5 liters, or 72%. Measured vital capacity was 61% before Isuprel, and 68% after Isuprel. Timed vital capacity readings at one second, two seconds and three seconds were 59%, 81% and 88% before Isuprel and, after Isuprel, the same readings were 63%, 76% and 83%. An EKG was interpreted as sinus tachycardia with vertical position with moderate clockwise rotation, otherwise within normal limits. Dr. Gonzales' impressions of appellant were:
(1) Anxiety state, chronic, severe;
(2) Pulmonary fibrosis, slight;
(3) Elevated blood pressure, probably on the basis of anxiety.
Although Dr. Gonzales' report may be read as minimizing the physical findings of the reports of other doctors in this record, he found, as we have noticed: "(1) Anxiety state, chronic, severe;" and his report does not say that claimant is able to work at his previous or any other employment.
Dr. B. F. Wright of the Seco Hospital of Seco, Kentucky, filed two reports, one being a form medical report dated August 2, 1963, and the other being a letter medical report dated December 6, 1963. In the form medical report, Dr. Wright noted that the appellant is a small, welldeveloped male who moves about sluggishly. The heart was noted to be considerably enlarged, rate 108, sounds indistinct, but regular. Heart size was noted to be enlarged downward and to the left. Blood pressure was sys. 210, dias. 130. Edema was noted of the lower extremities and Dr. Wright noted that very mild activity or stress produced dyspnea and angina. He further noted that acute respiratory attacks of a severe nature occur on exertion. Dr. Wright noted, "patient has third degree myocarditis and is totally and permanently disabled from performing manual labor." In his letter report of December 6, 1963, Dr. Wright noted the appellant is a white male, age 60, well developed and nourished, who complains of dyspnea, and general weakness and chronic cough. Examination of the chest showed the lungs to have a general crackling rales throughout both lungs; heart was near normal in size; heart rate at rest 108, rate following exercise 160 per minute. Slow to return to normal. Heart sounds indistinct, but regular. Diagnoses were listed as chronic asthma and chronic myocarditis. Dr. Wright noted that the patient had total and permanent disability from performing manual labor.
It is contended by counsel for the Secretary, on this appeal, that "this record does support a finding that the appellant could continue to engage in manual labor." The record discloses no evidence whatever to sustain a finding that this appellant could continue to engage in manual labor.
All of the foregoing medical evidence was uncontradicted. All of the evidence was to the effect that either appellant was totally disabled, or such evidence tended to establish the disability of appellant, and that he was unable to perform any substantial service with reasonable regularity in some competitive employment or self-employment. See McClain v. Gardner, D.C., 253 F.Supp. 559, 563. There was no evidence whatever that appellant could return to his work as a miner, or do any other work. Where uncontradicted medical evidence tended to establish the disability of a claimant, the decision of the Secretary, denying benefits was not supported by substantial evidence. Celebrezze v. Warren, 339 F.2d 833 (C.A. 10).
On what grounds, then, did the Secretary deny disability benefits to the appellant?
The denial of disability benefits by the Hearing Examiner was based upon two fundamental errors. The first of these errors is disclosed in the Hearing Examiner's decision where he states:
"In the light of the entire evidence of record and of the foregoing considerations, the hearing examiner finds that the claimant has failed to show by competent medical evidence, coupled with objective findings, that he was suffering from an impairment, or a combination of impairments, of such severity so as to preclude claimant from engaging in any substantial gainful activity at any time the application or applications are effective." (Emphasis supplied.)
As we have heretofore observed in Ross v. Gardner, 365 F.2d 554 (C.A. 6) (decided July 29, 1966):
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