Ross v. Gardner, 16383.

• Citation: 365 F.2d 554
• Decision Date: 29 July 1966
• Docket Number: No. 16383.,16383.
• Parties: Willena ROSS, Plaintiff-Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

365 F.2d 554 (1966)

Willena ROSS, Plaintiff-Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 16383.

United States Court of Appeals Sixth Circuit.

July 29, 1966.

William L. Gibson, Louisville, Ky. (Gibson & Gibson, Louisville, Ky., on the brief), for appellant.

William B. Martin, Lexington, Ky. (Boyce F. Martin, Jr., U. S. Atty., John E. Stout, Asst. U. S. Atty., Louisville, Ky., on the brief), for appellee.

Before WEICK, Chief Judge, O'SULLIVAN, Circuit Judge, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

Willena Ross filed her application for disability benefits under the Social Security Act, Title 42 U.S.C.A. § 423. After a hearing, the Hearing Examiner denied appellant any period of disability and disability insurance benefits. On appeal, the Appeals Council refused to review the decision, in effect, affirming the Hearing Examiner. Thereafter, appellant Ross 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. § 405(g), seeking to have the decision against her reversed and set aside; and that she 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 her impairments were not of a long-continued and indefinite duration, or of the type which rendered her unable to engage in any substantial activity, as set forth under Title 42 U.S.C.A. § 423(c) (2).

Mrs. Ross, the appellant, is fifty-one years of age, and has a sixth grade education. The only jobs she ever held required manual labor, such as waitress, bottlewasher, and binder in a lithographing company. She had a past medical history of some six or seven operations, including vein ligation and stripping procedure on the left, and operations relating to the appendix, tubes, and ovaries.

On October 7, 1961, appellant felt a sudden pain in her left thigh above the knee joint, became nauseated, "blacked out," and had trouble getting her breath. She was taken to the emergency room at the Kentucky Baptist Hospital, by a police ambulance, and was admitted to the hospital. Her condition was diagnosed as acute ileofemoral thrombosis left and pulmonary infarction, chronic bilateral phlebitis and venous insufficiency. Her attending physician stated that her condition was static; that she was completely disabled from doing her work and he knew of no other work which she could do. He further stated that there was no known hope for the possibility of her recovering completely from her phlebitis which is known to be a chronic and incurable situation.

Appellant was examined by other doctors who confirmed the previous diagnosis of phlebitis. She was also examined by another doctor in consultation with the attending physician, who confirmed the diagnosis of phlebitis and suggested continuation of anti-coagulant therapy and wearing elastic stockings for five to six months. He also stated that her activity was restricted from prolonged standing or sitting.

Appellant was also examined by a physician at the request of the Secretary, who likewise confirmed the diagnosis of phlebitis but made no statement concerning her disability.

Under the undisputed evidence in this case, the findings made by the Secretary are not supported by substantial evidence.

In his opinion which was affirmed by the Appeals Council and by the District Court, the Hearing Examiner quoted the following from a medical text, upon which he evidently relied in his finding against Mrs. Ross:

"Venous obstruction by thrombosis may be either a primary, simple, non-inflammatory process (phlebothrombosis) or a secondary reaction to local or distant inflammatory agents with active inflammation of the wall of the the affected vein (thrombophlebitis). * * * The most serious complication of phlebothrombosis or thrombophlebitis is pulmonary embolism which follows dislodgement of a thrombus shortly after it has formed and before organization has fixed it firmly in the vein of origin. In general, the greater the local tenderness and pain in the extremity the less is the danger of embolism, since thrombi usually loose before pronounced inflammatory reaction develops. Large thrombi dislodged from the femoral, iliac or pelvic veins commonly produce fatal pulmonary embolism, a frequent cause of sudden death after operation or deep pelvic irradiation. * * * As soon as thrombophlebitis is suspected, the patient should be kept at rest in bed with the affected extremity slightly elevated to diminish edema. * * * Anticoagulants, as mentioned before, can have little effect on existing thrombi, but should be used to prevent propagation, as described under Anticoagulant Therapy. Local heat should be applied by means of a thermoregulated cradle. * * * After temperature and pulse are normal, the patient may sit up in bed unless activity is followed by return of symptoms or a rise in temperature. Passive, and later active, movements of the affected extremity are stated gradually to help recovery of the muscle tone and to assist the function of collateral venous channels. If edema still forms, the limbs should be elevated nightly. When normal activity is resumed, an elastic stocking should be worn until measurement of the extremity reveals no accumulation of edema fluid while the tissues are unsupported." (An article entitled "Diseases of the Peripheral Vessels," by Hugh Jackson Morgan, M.D., D.Sc. (Hon.), Professor Emeritus of Medicine, Vanderbilt University School of Medicine; Physician, Vanderbilt University Hospital and Veterans Administration Hospital, Nashville, Tennessee, in A Textbook of Medicine by Cecil & Loeb, p. 1342.)

The first time that this language of a medical text appeared in the case was in the Hearing Examiner's decision. Appellant, a poor woman, was without counsel on the hearing.

In Glendenning v. Ribicoff, D.C., 213 F.Supp. 301, 302, 303, it is said:

"In weighing the evidence, the hearing examiner, who is not shown to be a medical specialist, undertook to discredit the opinion of the orthopedic surgeon, Dr. Overesch, by independent medical research and citations to medical texts without prior notice to the plaintiff and without the benefit of interpretation by professionally competent specialists. * * *

"The consideration of this extra-record medical information was erroneous as a matter of law, even if it be assumed that under proper conditions such extra-record information could be noticed and considered by the examiner, a matter not free of doubt. Administrative agents and agencies are not privileged to take judicial notice of evidentiary material which is not a matter of common knowledge. To do so denies to the affected party `the fundamentals of a trial,\' in the words of Mr. Justice Cardozo, speaking for a unanimous Court, in Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 57 S.Ct. 724, 728, 729, 81 L.Ed. 1093, l. c. 1099. The practice of noticing evidentiary material after the case has been submitted amounts to a `pretext for dispensing with the trial.\' Ohio Bell Telephone Co., supra."

In Cook v. Celebrezze, 217 F.Supp. 366, 368 (D.C.W.D.Mo.), the court said:

"The hearing examiner made a finding contrary to this medical evidence, relying chiefly upon an electroencephalographic report from the Veterans Administration

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