Rosin v. Secretary of Health, Education and Welfare, 20706.

• Decision Date: 29 May 1967
• Docket Number: No. 20706.,20706.
• Citation: 379 F.2d 189
• Parties: Verlien W. ROSIN, Special Administratrix of the Estate of Edward W. Rosin, Deceased, Appellant, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

379 F.2d 189 (1967)

Verlien W. ROSIN, Special Administratrix of the Estate of Edward W. Rosin, Deceased, Appellant, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Appellee.

No. 20706.

United States Court of Appeals Ninth Circuit.

May 29, 1967.

Ronald G. Carter, Boise, Idaho, for appellant.

Sylvan A. Jeppesen, U. S. Atty., Jay F. Bates, Asst. U. S. Atty., Boise, Idaho, John W. Douglas, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., for appellee.

Before CHAMBERS, HAMLEY and CECIL,^* Circuit Judges.

CECIL, Senior Circuit Judge.

Edward W. Rosin in whose name this appeal was filed, as appellant, died during the pendency of the appeal and his widow, Verlien Rosin, duly appointed as special administratrix of the estate of Edward W. Rosin, was substituted as party appellant.

The appeal is from an order of the United States District Court for the District of Idaho affirming the decision of the Secretary of Health, Education and Welfare (Appellee herein) denying the appellant, Edward W. Rosin, benefits under the Social Security Act (Sections 401 et seq., Title 42, U.S.C.). The appellant filed an application on April 3, 1962, with the Social Security Administration, Department of Health, Education and Welfare, in which he alleged that he became unable to work on July 2, 1957, due to a "stroke". He sought to establish a period of disability and to obtain an award of disability insurance benefits (Sections 416(i) and 423, Title 42, U.S.C.). Upon denial of his application by the Appeals Council (20 C.F.R., 404.951) the appellant brought this action for judicial review in the District Court (Sec. 405(g), Title 42, U.S.C.).

Initially, the District Court remanded the case to the Appeals Council for the purpose of taking additional evidence on the question of whether the appellant could engage in a substantial gainful activity and if so, whether such employment was available to him. Upon remand the final conclusion of the Appeals Council based upon the findings of the hearing examiner¹ was, "Inasmuch as the Appeals Council agrees with the hearing examiner's finding that the claimant's work during the period in issue and thereafter amounted to substantial gainful activity which constitutes a complete bar to benefits as far as the application in issue is concerned, it is unnecessary to discuss further the claimant's ability, theoretical or otherwise, to engage in other vocational pursuits."

The review by the District Court is limited to an examination of the administrative record to ascertain if there is substantial evidence to support the ruling of the Secretary. If there is, his decision must be affirmed. (Sec. 405(g), Title 42, U.S.C.). Originally, the court was of the opinion that the appellant could not gainfully carry on his profession as a Doctor of Chiropractic. On consideration of additional evidence, after remand, the court found that there was substantial evidence to support the finding of the Appeals Council that the appellant's ability to continue his practice to a limited extent amounted to substantial gainful activity. The court also found that he was "qualified and physically able to engage in other work which would amount to substantial gainful activity and that" such work was readily available. The court sustained the motion of the appellee for summary judgment and entered judgment accordingly. This appeal followed.

This Court has jurisdiction of the appeal under Section 1291, Title 28, U.S.C., and Section 405(g), Title 42, U.S. C. The appellant first became eligible to apply for benefits under the Social Security Act in September of 1960. Admittedly he met the legal requirements to make application for a period of disability and for an award of disability insurance benefits during the entire period of the pendency of his application.² The question before us is whether the findings of the Secretary based on the findings of the hearing examiner are supported by substantial evidence. Galli v. Celebrezze, 9 Cir., 339 F.2d 924; McMullen v. Celebrezze, 9 Cir., 335 F.2d 811, cert. den. 382 U.S. 854, rehearing den. 382 U.S. 922, 86 S.Ct. 295, 15 L. Ed.2d 238.

The appellant was born on October 14, 1920, and was therefore thirty-six years old when he suffered the stroke in July, 1957, and thirty-nine years old when he first became eligible for disability benefits in September, 1960. After being graduated from high school, the appellant completed two years of a premedical course of studies at Pacific University, Forest Grove, Oregon. He served in the Air Force from February 24, 1943, to December 18, 1945. Upon discharge from the Air Force, he attended the Western State College of Chiropractic Physicians in Portland, Oregon, from where he was graduated in 1948. In 1949 he opened an office in association with another chiropractor and in 1950 opened his own office in Payette, Idaho. The appellant was married, and had three minor children.

At the time the appellant's disability began he was practicing his profession in Payette, Idaho. On July 2, 1957, the appellant became weak and dizzy at his office and developed a headache. He managed to drive his car home from his office. Arriving at home, he found he had no use of his left hand when he attempted to lift a sprinkler. He fell on the steps at his home. Dr. Watts was called and the appellant was hospitalized at the Holy Rosary Hospital, at Ontario, Oregon. On July 12th he was transferred to the Veterans' Administration Hospital at Boise, Idaho, where he remained until he was discharged in December, 1957. The diagnosis at the Veterans' Administration Hospital was "Cerebral Thrombosis of the right middle cerebral artery due to arteriosclerosis with almost complete paralysis of the left arm, weakness of the left leg."

The medical evidence assessing the physical condition of the appellant is not in conflict. Four medical reports, prepared by three doctors, were received in evidence by the hearing examiner. Two were by appellant's personal physician, Dr. Thomas W. Watts, Jr., a general practitioner and are dated May 21, 1960, and April 10, 1962. One was submitted by a neurological surgeon, Dr. L. Stanley Durkin, who examined the appellant on September 29, 1958,³ and the fourth by Dr. Augustus M. Tanaka, who examined the appellant on February 9, 1963, at the request of the Social Security Administration. All three doctors agreed that the appellant was severely handicapped. The stroke which the appellant suffered on July 2, 1957, affected the left side of his body. His facial muscles on the left side showed a slight weakness. He had no use of his left arm, being unable to move his fingers and wrist, and being able to move his shoulder and elbow only slightly. Both Doctors Watts and Tanaka considered the appellant to have a complete and total loss of function of the left arm. Appellant had a stiffness of hip and poor coordination in that part of the body. He also had a spastic leg which prevented him from walking without a marked limp. His personal physician stated that he had a twenty-five percent loss of strength of the muscles of his left leg. Dr. Tanaka stated that although the appellant is able to walk he has a very definite disability and that enforced walking undoubtedly contributed to his pain and discomfort. Appellant suffered from paroxysms of muscular pain, spasms and hyperesthesia of the entire left side. The appellant was under medication for the prevention of these spasms and to reduce the spasticity of his left leg. These muscle spasms were often brought on by overexertion and too much muscular effort. Another effect of such increased activity was extreme fatiguability. The appellant experienced a tightness of his left diaphragm which caused him to have difficulty in breathing. The extensive physiotherapy which the appellant had undergone proved to be of little or no help in alleviating his condition. Doctor Watts and Doctor Tanaka concluded that the appellant was unable to carry on his business as a chiropractor. Dr. Watts considered the appellant as seventy-five percent disabled at anything requiring more than mental accuity. Dr. Tanaka concluded that the appellant's disabilities constituted a very definite limitation on his ability to practice chiropractic and recommended favorable consideration of his application for disability benefits.

On June 28, 1960, the appellant was again admitted to the Veteran's Administration Hospital following a seizure of convulsive movements of the left arm, accompanied by salivation and momentary unconsciousness. He was released from the hospital on July 1, 1960, with no apparent increase in his disability.

Subsequent to his stroke on July 2, 1957, the appellant remodeled his garage, at his home, into an office in which he could continue his practice of chiropractic. In late 1958, the appellant resumed part of his practice. In order for him to continue his practice it was necessary for him to utilize the services of his wife. She acted as his office secretary and assistant. She met the patients, interviewed them and took their history. She then presented this information to the appellant who reviewed the cases, and conducted additional inquiries, if necessary. He would then make his own analysis and recommendations. If he felt that treatment could be administered in his office, he would instruct his wife in the operation of the necessary machine and she would perform the treatment. Appellant's wife received no remuneration for her services. He was unable to perform any of the manipulative adjustments that are an essential part of the practice of chiropractic. When the appellant's wife took another job for a period of about three months, he attempted to operate the office by himself. He was unable to operate any of the machines which required the use of two hands. The heat lamp, though easy to operate, necessitated moving at each use. This the appellant found extremely difficult to do. Dr. Kenneth Yaguchi,...