Slone v. Gardner

• Decision Date: 02 February 1966
• Docket Number: No. 16376.,16376.
• Citation: 355 F.2d 485
• Parties: Kermit SLONE, Plaintiff-Appellee, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

355 F.2d 485 (1966)

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

No. 16376.

United States Court of Appeals Sixth Circuit.

February 2, 1966.

Robert C. McDiarmid, Atty., Dept. of Justice, Washington, D. C., for appellant, John W. Douglas, Asst. Atty. Gen., Sherman L. Cohn, Lawrence R. Schneider, Attys., Dept. of Justice, Washington, D. C., George I. Cline, U. S. Atty., Lexington, Ky., on brief.

Ronald W. May, Pikeville, Ky., for appellee, Combs & May, Pikeville, Ky., on brief.

Before WEICK, Chief Judge, and O'SULLIVAN and PHILLIPS, Circuit Judges.

PER CURIAM.

The Secretary of Health, Education and Welfare denied plaintiff's application to establish a period of disability and for disability insurance benefits under sections 216(i) and 423 of the Social Security Act, 42 U.S.C. §§ 416(i), 423.¹ The District Court reversed the Secretary's decision and remanded the case to him with instructions to make an award of a period of disability and disability insurance benefits. The Secretary has appealed to this Court from the judgment of reversal. The only issue in the case before the Secretary was whether plaintiff was disabled within the meaning of the Act.

At the time of his application for disability benefits plaintiff was a thirty-four old male with an eighth grade education, which he had completed at the age of seventeen. After leaving school he worked as a laborer, primarily in and around coal mines in Kentucky. He is married and has two children. In 1952 plaintiff was drafted into the Armed Services and while serving in Korea he received a combat wound in his right leg for which he is receiving partial disability benefits. The evidence showed that the wound was well healed.

Subsequent to his discharge from the service and while working in a coal mine, plaintiff sustained an injury to his back when he was caught between a timber and a motor. The injury aggravated a congenital condition of his back, called spondylolisthesis, or a "low back", where one vertebra overlaps another. This defect is characterized by maximum forward flexion and less than normal hyperextension, and is frequently painful. He is receiving Workmen's Compensation benefits under Kentucky law on a temporary total disability basis.

Plaintiff filed an application for Social Security disability benefits, alleging that he was unable to work because of his back injury. The Hearing Examiner denied his application, finding "no medical evidence that claimant has a severe impairment."

The Examiner further found:

"The evidence indicates that the claimant has a minor congenital spinal defect that is common to five of six per cent of the male population. At most, the evidence shows that he may be temporarily unfit for labor involving repetitive bending, stooping, lifting or handling weights in excess of 40 to 50 pounds. Even now he can do sitting work and can do standing work that does not involve the aforementioned activities."

Contrary to the findings of the Hearing Examiner, the medical evidence in the record established that plaintiff's impairment was severe enough to prevent his working in his former occupation as a miner. Dr. Roland, an orthopedic surgeon, observed that people with congenital defects such as claimant's "are characterized by weak, vulnerable backs", and that claimant...