Ross v. Richardson

• Citation: 440 F.2d 690
• Decision Date: 09 April 1971
• Docket Number: No. 20529.,20529.
• Parties: Vernon E. ROSS, Plaintiff-Appellant, v. Elliott RICHARDSON, Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

440 F.2d 690 (1971)

Vernon E. ROSS, Plaintiff-Appellant, v. Elliott RICHARDSON, Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 20529.

United States Court of Appeals, Sixth Circuit.

April 9, 1971.

Barkan, Barkan & Neff, Frank J. Neff, Columbus, Ohio, for appellant on brief.

William D. Ruckelshaus, Asst. Atty. Gen., Morton Hollander, Robert M. Feinson, Attys., Dept. of Justice, Washington, D. C., William W. Milligan, U. S. Atty., Columbus, Ohio, for appellee on brief.

Before WEICK, MILLER and KENT, Circuit Judges.

WILLIAM E. MILLER, Circuit Judge.

This action was brought by appellant pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking review of the decision of the Secretary to terminate the disability benefits appellant had been receiving since 1963. Appellant's disability was determined in 1963 after surgery to correct a back injury, and payments of disability insurance began. They continued through a second surgery in 1966. The Secretary terminated the benefits on November 15, 1968, on the ground that appellant was no longer disabled within the meaning of section 216(i) (2) (D) of the Act, 42 U.S.C. § 416(i) (2) (D). Appellant pursued an administrative hearing before a Hearing Examiner at which he appeared personally and was represented by counsel. The Hearing Examiner conducted a de novo review of the record and also heard witnesses. On May 22, 1969, the Hearing Examiner ruled that appellant was no longer disabled and was no longer entitled to disability insurance benefits. The Appeals Council having denied further review, appellant instituted this action for review in the United States District Court. The Secretary moved for Summary Judgment which was granted by the District Court on the basis of its finding that the decision of the Secretary was supported by substantial evidence. This appeal followed.

In our review of the decision of the Secretary and the District Court, we are bound by their findings of fact if supported by substantial evidence. Rose v. Cohen, 406 F.2d 753 (6th Cir. 1969); Wolf v. Gardner, 386 F.2d 295 (6th Cir. 1967). If there is substantial evidence the Secretary's findings must be approved by us even if we would have taken a different view of the evidence as the triers of fact. King v. Celebrezze, 341 F.2d 108, 109 (6th Cir. 1965). We turn to a review of the record to determine whether there was substantial evidence to support the Secretary's findings.

Appellant is forty-two years of age and has a sixth grade education. He did various manual jobs as a young man until learning to do automotive work. He considered himself an expert mechanic before a back injury sustained in 1957 when he fell from a garage hoist. This injury necessitated surgery in 1962, including a laminectomy and a spinal fusion. An initial application for disability benefits was denied in 1963 but later was awarded on reconsideration. Twice in 1963 appellant was placed in a body cast to immobilize his back after a fracture in the spinal fusion occurred. A second laminectomy was performed in 1966, and a third body cast was applied. Until 1968 appellant was under the periodic care of Dr. Herbert Knodt, an orthopedic surgeon, who reported appellant as disabled on several occasions. In July, 1968, appellant changed physicians when he came under the care of Dr. Lewis Huesmann, an orthopedic surgeon. The change in physicians was evidently precipitated when appellant's scheduled surgery for removal of internal fixation devices from previous operations was postponed due to an emergency in the hospital and appellant, feeling that Dr. Knodt was refusing to operate, left the hospital without being discharged. The devices have never been removed.

In October, 1968, at the request of the Social Security Administration state agency, appellant was examined by Dr. Robert B. Larrick, an orthopedic surgeon, and Dr. Dwight Palmer, a psychiatrist. The record includes their reports, and presumably it was upon their findings that the Secretary initially decided to terminate the appellant's benefits. The record also includes a written report by Dr. Huesmann, who examined appellant at bimonthly intervals from July 9, 1968, until December 2, 1968.

The reports of the doctors and the transcript of the hearing show that appellant has continually complained of pain and numbness in the lower back and along the spine, of brief dizzy spells and periods of unconsciousness, and of attacks of paralysis in both arms and legs. He also complained of continuous numbness in both legs and of pain along the back of his legs. He stated that these symptoms have developed since the second laminectomy in 1966.

The report of Dr. Huesmann, appellant's doctor, revealed limited ability to flex the lumbar spine, and also that appellant's leg raising was restricted. He concluded that appellant had a post-laminectomy syndrome consisting of the above described symptoms, which probably would not improve. He rated appellant as "100% permanently disabled due to the persistent pain, stiffness, and inability to move and do even the lightest type of menial work." Dr. Larrick, while also noting that appellant experienced pain while performing movements during the orthopedic examination, and finding that there was limited back flexion and mobility, noted further that appellant's mobility improved considerably during unannounced observation. He found that appellant's reported weakness in performing tests was incompatible with other observed activities such as dressing, sitting, and standing. This finding is consistent with Dr. Huesmann's observation that appellant could easily remove his clothing.

Dr. Larrick further stated that he could not explain the upper limb paralysis or black-outs in any way organically related to the lower back disorders. He concluded that "while his functional capacities should be quite adequate for sustained activities or medium activities that did not throw excessive stress on the low back, his capacities are inadequate for the work he is equipped to do by virtue of education and past work experience."

At the hearing in May, 1969, appellant Ross, Dr. Henry B. Lacey, a medical advisor, and Dr. Harold Starr, a vocational consultant, testified. The Hearing Examiner explained that the latter two individuals were called in to aid the Examiner as disinterested experts whose only previous connection with the case was to review the administrative record to date at the request of the Hearing Examiner.

Appellant testified about his persistent pain and inability to bend or stoop. He maintained that he had not worked since the accident in 1957 on doctor's orders. He reiterated his statements as to almost daily recurrences of the black-out spells, although he stated that no doctor had ever seen him during such a spell. Most of his testimony was a repetition of information already in the various reports and entries in the record.

Dr. Lacey was called to render opinions and explanations of the medical evidence in the file. He explained under questioning by the Hearing Examiner the nature of the surgical procedures that had been performed on the appellant. The Examiner questioned Dr. Lacey closely about Dr. Huesmann's report. He stated that apart from appellant's continued complaints of pain, the second surgery could be described as successful. He could not state whether the failure to remove the internal fixation devices might have contributed to appellant's symptoms, but he felt that the presence of the devices in appellant's body, while evidently not too serious at the present, could become serious in the future. Of Dr. Huesmann's report he...