Sayers v. Gardner

• Decision Date: 14 July 1967
• Docket Number: No. 16943.,16943.
• Citation: 380 F.2d 940
• Parties: Vera SAYERS, Plaintiff-Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

380 F.2d 940 (1967)

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

No. 16943.

United States Court of Appeals Sixth Circuit.

July 14, 1967.

Ronald W. May, Pikeville, Ky., for appellant.

J. T. Frankenberger, Asst. U. S. Atty., Lexington, Ky. (George I. Cline, U. S. Atty., Lexington, Ky., on the brief), for appellee.

Before PECK and McCREE, Circuit Judges, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

This is an appeal from a disallowance of an application for disability insurance benefits under the Social Security Act.

Appellant, Vera Sayers, is 49 years old. After finishing the 8th grade, she went to work. During her lifetime, her entire experience has been in the field of standing and sedentary labor. In her application for disability benefits, she stated that she became unable to work on June 26, 1963, because of a ruptured spinal disc. The Hearing Examiner denied her application on the ground that she was not under a disability and not entitled to the benefits. This decision was later affirmed.

Because of the repeated necessity of reversing the Secretary in these cases, we should go back to the origins of the statute and consider first things first. The Act was adopted pursuant to a public policy unknown to the common law, designed for the protection of society, and enacted to alleviate the burdens which rest on large numbers of the population because of the insecurities of modern life, particularly those accompanying old age, unemployment, and disability, through the establishment in advance of a provident fund for the needy worker, out of which he will be paid disability benefits, annuities, and compensation; and there is no question that the Social Security Act is constitutional.

"The short and simple annals of the poor," wrote Gray. That was in the day of grinding poverty and hunger, and poorhouses. One could hardly imagine that in a year or so, poorhouses would disappear from the land. In those days, the Social Security Act was enacted into law.

The Social Security Act brought with it, among other provisions, the right to disability benefits for workers who have become disabled from doing the work — usually the hard manual work — that they have done during their lives.

In McGaha v. Ribicoff, 262 F.Supp. 161, 167, the court, in a case involving disability benefits under the Social Security Act reversed the Hearing Examiner and stated:

"The record in its entirety is sufficient to support a finding that the work plaintiff performed which the Examiner relied upon to refute his disability claim was carried on under the compulsion of economic necessity. Compare Mabry v. Travelers Ins. Co., 193 F.2d 497, 498 (5th Cir. 1952) where the Court held it was error to peremptorily charge the jury that a claimant under the Texas Workmen\'s Compensation Act was not totally and permanently disabled. The Court stated that a vital issue which should have gone to the jury was whether the work performed by claimant was due to the necessity of physically supporting herself, even though she was not physically able to work. The Court said at p. 498:

"`* * * Pinched by poverty, beset by adversity, driven by necessity, one may work to keep the wolf away from the door though not physically able to work; and, under the law in this case, the fact that the woman worked to earn her living did not prevent a jury from finding, from the evidence before it that she was totally and permanently disabled even while working.\'"

In Massey v. Celebrezze, 6 Cir., 345 F.2d 146, 157, the court remarked:

"Some people have always blamed the poor for being poor, and the unemployed for being unemployed, as is especially remembered from the early days of the Works Progress Administration more than thirty years ago."

In Lightcap v. Celebrezze, D.C., 214 F. Supp. 209, 216, in considering a claim for disability benefits, the court said that, as adjured by the Supreme Court, "courts must now assume more responsibility for the reasonableness and fairness" of the decisions of federal agencies "than some courts have shown in the past" and "Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function." Universal Camera Corp. v. National Labor Relations Board, 1951, 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456.

In these cases, where there have been such a great number of reversals, and where the same errors have been repeatedly pointed out, the records should be carefully examined and reviewed by the courts, and an opinion should generally be written, setting forth the facts and law, to show that the courts have, in reality, assumed more responsibility for the reasonableness and fairness of the decisions of federal agencies, than some courts have shown in the past; and that reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function, as we have been directed and cautioned by the Supreme Court in Universal Camera Corp. v. National Labor Relations Board, supra, for this case obviously means that courts should scrutinize the decisions of agencies, more than they have in the past, to ascertain whether they are reasonable and fair. The great number of errors and reversals, in the past, in these cases, constitute a warning signal.

In Miracle v. Celebrezze, 6 Cir., 351 F.2d 361, 382, the court emphasized these factors and said:

"The review of cases for disability benefits under the Social Security Act is onerous from many aspects. The case before the Hearing Examiner is heard informally. This means that there is practically no examination or cross-examination of any witnesses, except the claimant himself, usually a man whose life has been one of hard labor, and with little education; and, sometimes, a Vocational Counselor. The record, for the most part, consists of letters and written statements regarding the disability claimed, the extent of it, or the lack of it. Many of these statements consist of official printed forms of applications and reports filled in, in the handwriting of various individuals; and their reproduction in the record often requires laborious decipherment. These records call for searching investigation by the district courts, and further searching investigation by appellate courts."

In Scott v. Celebrezze, 241 F.Supp. 733, 736 (S.D.N.Y.), Judge Feinberg emphasized how searching must be the review by the courts of the action of the Secretary, and mentioned that in the cases reported in volumes 227-236 of Federal Supplement, the Secretary's decision was upheld only 27 times, but reversed or remanded 47 times; in Miracle v. Celebrezze, supra, it was said that in this court, during the past five years, the Secretary's decision was upheld 5 times and reversed 12 times, which again shows how careful and searching must be the review; and in Seldomridge v. Celebrezze, D.C., 238 F.Supp. 610, 620, the court said:

"The decisions of the Courts in this Circuit appear to be in accord with the numerous decisions in other Circuits. As an example, a compilation of the September-October-November 1964 Federal Supplement (Vol. 231-234), indicates that of the 28 cases reported, the Social Security Administration was reversed in at least seventy-five percent of the cases, and ninety percent of those reversals was for lack of substantial evidence to support the Secretary\'s findings, just as in the instant case I have found a lack of substantial evidence." (Footnote 17)

With regard to the appellant in this case, during the years she was employed, she has worked on a packing line, packaging small parts in cartons for overseas shipment; as a handpaster mounting small X-ray dental films; as an operator of automatic pasting machines; as a worker on a conveyor line in a packing department placing gaskets in boxes; and as an operator of an injection molding machine which molded plastic parts.

Appellant's testimony and evidence is as follows: She enjoyed relatively good health until 1940 when she fell on concrete steps. Inasmuch as she did not consider herself, at that time, to be severely injured, she did not seek medical attention. However, she later began to suffer pain, and on December 28, 1952, was admitted to St. Mary's Hospital, Huntington, West Virginia, where a diagnosis revealed that she was suffering from a ruptured intervertebral disc L 4-5. On January 3, 1953, Dr. Francis A. Scott, an orthopedic surgeon of Huntington, West Virginia, performed a surgical operation on appellant, excised a protruding disc, and performed a spinal fusion, resulting in the fusing of the spine. Following this surgery, appellant was able to return to work and did not suffer pain and disability until, in 1960, she slipped and fell on ice and then began to have further pain in her back. She continued to work in a factory in Chicago until June 27, 1963, when, according to her evidence, while at work, she became unable to move her legs and had pain so severe, she had to quit work.

On July 3, 1963, after her return home to Kentucky, Dr. M. D. Flanary of Pikeville, Kentucky, examined appellant and reported that he found her to be totally disabled.

On October 25, 1963, Dr. Flanary reported to the Social Security Administration that he had again examined appellant; that X-rays revealed an old ruptured disc between the 4th and 5th lumbar vertebrae; that she was suffering from arthritis of both knees, and that she was totally and permanently disabled.

On February 12, 1964, Dr. Flanary reported that on that day he had again examined appellant and had taken X-rays of her. He stated that she had been operated on in 1953 for a ruptured disc — which was not successful — and that she was totally and permanently disabled.

On December 6, 1963, appellant had been given a consultative examination at the Memorial Medical Center, at Williamson, West Virginia, by Dr. A. A....