Sorenson v. Weinberger, 74-1279

• Citation: 514 F.2d 1112
• Decision Date: 28 March 1975
• Docket Number: No. 74-1279,74-1279
• Parties: Charles O. SORENSON, Plaintiff-Appellee, v. Casper W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1112

514 F.2d 1112

Charles O. SORENSON, Plaintiff-Appellee, v. Casper W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellant.

No. 74-1279.

United States Court of Appeals Ninth Circuit.

March 28, 1975.

Eugene A. Lalonde, Asst. U. S. Atty., Billings, Mont., for defendant-appellant.

Jerome J. Cate, Billings, Mont., for plaintiff-appellee.

OPINION

Before BARNES and CHOY, Circuit Judges, and EAST, ^* District Judge.

PER CURIAM:

To understand this case, we conclude certain facts should be recited.

I. FACTS.

Plaintiff-appellee, prior to July 5, 1968, had led an active life working at hard physical jobs, mostly on farms, (such as plowing, discing, and cultivating, or as a tractor operator). He studied welding and worked as a welder (heavy, light and spot), a pneumatic drill operator on a railroad; an auto mechanic and a service station attendant; a repairman in a mine as stationary engineer; and a swamper on oil rigs. He had spent three years in military service, where he had training as a heavy equipment operator, and as a paratrooper. At some undisclosed date, long prior to July 5, 1968, in a dynamite explosion, he had lost portions of two fingers and a portion of the thumb on his left hand. This apparently had not incapacitated him for heavy work.

On July 5, 1968, plaintiff fell from an oil rig and injured his left ankle. He was hospitalized two days and had a short cast placed on his left leg. He lost his job. He was unable to work until September 13, 1968, when he was employed by Great Western Sugar Company, repairing broken machinery for six months. He then sought work as a bench welder, where he could be off his feet.

During this time he was receiving Montana Workmen's Compensation benefits of $50.00 a month, payable for five years, unless released by his doctor for work. Because plaintiff was not released by his doctor to seek employment, no other employer in Montana carrying that state's Workmen's Compensation Insurance would hire plaintiff.

On March 4, 1969, due to continued pain and swelling from the left ankle to the left calf, plaintiff's doctors performed an arthrotomy on his left ankle, removing two loose calcium deposits, one from the joint space.

On May 14, 1969, plaintiff filed an application for Disability Insurance Benefits due him under Title II of the Social Security Act, with the Department of Health, Education and Welfare (hereinafter sometimes HEW).

On July 15, 1969, the Bureau of Disability Insurance of the Department of Health, Education and Welfare advised plaintiff he was not entitled to disability insurance, because "you did not meet the disability requirement of the law," and "your disability did not last for a continuous period of at least 12 months." (Ex. 3, page 1; and Hearing Officer's Transcript, page 83, (hereinafter Vol. I, II, or III).)

On July 31, 1969, plaintiff filed a request for reconsideration with HEW, which was on September 8, 1969, denied (Ex. 15, Vol. I, pages 85 and 111 et seq.) upon the same grounds as previously stated (Vol. I, page 116).

In the denial of reconsideration, this statement appears:

"We recognize that you may not be able to engage in work requiring prolonged walking or standing. However, the evidence shows you retain the capacity to engage in other types of work in keeping with your training and experience." (Vol. I, page 116).

Advised of his right to request a hearing, the plaintiff made a timely request for a hearing on October 2, 1969.

On October 13, 1969, plaintiff started vocational rehabilitation classes, seeking to finish his high school education. He drove an auto to class, but long driving tired him. He later passed the entrance exams for North Dakota State University.

On January 23, 1970, a hearing was had before a Hearing Examiner, where plaintiff was represented by his attorney, who introduced medical evidence and thereafter, a seven-page written statement on plaintiff's behalf. Two government doctors examined plaintiff, and filed a three-page report concluding that "The total evidence fails to show that plaintiff had a medical impairment of sufficient severity to preclude him from all work activity for a continuous period of one year." (Ex. 15, page 2). (Emphasis added).

On June 12, 1970, the Appeals Council notified plaintiff that it had concluded the decision of the original Hearing Examiner was correct; that that was the Secretary's final decision; and that any further remedy lay with the district court.

On July 29, 1970, the plaintiff filed suit against the then Secretary of Health, Education and Welfare. ¹

Defendant moved for a summary judgment and plaintiff moved to remand the matter to the Secretary for the taking of additional evidence. This latter motion was granted February 1, 1971. A supplemental hearing was had on April 20, 1971, before a different hearing examiner. ² We need not here repeat in detail the additional testimony presented, both by plaintiff and the three additional reports of his doctors (See Vol. II). Represented by his attorney, plaintiff testified to pain in the back commencing in June 1970, diagnosed as a "chronic lumbosacal pain, and a possible herniated disc."

Plaintiff testified he had been attending college as a freshman in a State Vocational Rehabilitation Program, studying to be a school teacher, with six to seven hours of classes per day. For his pain he took four Darvon tablets in "9 months to a year's time," which stopped the pain. (Vol. II, pages 166-67.)

The Government called as a witness an allegedly impartial vocation expert, a Dr. Kenneth B. Card. ³

The Examiner conceded that plaintiff could not do heavy work, but enquired of Dr. Card if plaintiff had the residual functional ability to perform work involving light and sedentary exertion; "sedentary" being work in which plaintiff would not be required to lift more than 10 pounds, with more time sitting than standing or walking; and "light" work being where plaintiff might be required to lift 20 pounds maximum, and would involve some walking or standing.

Dr. Card concluded plaintiff could dispatch maintenance vehicles, maintenance personnel, or maintenance service, or work as a parking lot attendant, or as a dispatcher for taxi cabs; or any attendant jobs, such as maintenance and repairman in schools (as for example) for heating plants or operating or repairing vending machines or repairing welding equipment, or limited bench work in welding small articles, but could do no heavy maintenance jobs. Dr. Card testified such jobs exist both nationally and locally.

On May 7, 1971, the Hearing Examiner made his findings (only 9 to 13 relate to the problem before us) ⁴ and held that plaintiff did not qualify for Disability Insurance Benefits. The Appeals Council ⁵ on June 22, 1971, adopted the Hearing Examiner's Findings and Conclusions.

On July 23, 1971, plaintiff had a laminectomy spinal fusion in his back above the sacrum, and a reoperation in the same area on August 20, 1971.

On September 8, 1971, the Appeals Council considered the plaintiff's most recent surgery as reported by plaintiff's doctors, but concluded that although plaintiff would have a period of convalescence and inability to work during the days following his back surgery, it did not appear that this impairment would preclude all work activity for at least 12 months after July 23, 1971, and therefor did not place such material in the record.

On October 4, 1971, the district court ordered the matter submitted on briefs and the record. Plaintiff then filed a motion for summary judgment, and defendant renewed his motion for a summary judgment.

On February 9, 1972, the district court ordered a further remand to HEW, so that the plaintiff's additional medical evidence of the July 23, 1971, operation could be placed in the record, or so that a further hearing could be had. By stipulation, a further hearing was had. Plaintiff's own affidavit and his doctor's medical reports were filed, and two specialists testified for the Government (Ex. AC-4 and AC-6, Vol. III), one an orthopedist and one an internist.

On February 21, 1973, the Appeals Council of the Bureau of Hearing and Appeals of HEW refused to change its earlier conclusion that plaintiff did not qualify for disability benefits, stating:

"The internal medicine and orthopedic consultative examinations more than adequately establish that there is no medical problem other than the residuals from the fracture of the left ankle and the spinal fusion. In particular, there is no impairment of the cardiovascular, gastrointestinal or genitourinary system. There is no conflict between the clinical medical findings of the claimant's treating physician and the reported results of the consultive examinations. These medical sources indicate that the limitations imposed on the claimant are due solely to his ankle and back problems and in no way preclude him from engaging in sedentary and light physical activity." (Vol. III, page 212.)

Back in the district court, the government attorney, on May 4, 1973, renewed his motion for summary judgment and filed a brief in support of his pending motion for summary judgment.

On August 31, 1973, the district court made an order granting summary judgment to defendant, and ordering judgment entered for defendant HEW. (C.T. 106).

The court correctly stated the questions before him whether the findings and conclusions of the hearing examiners and the Appeal Board (1) are supported by substantial evidence, and (2) defining the disability here involved (C.T. 107). The court then listed the various sedentary occupations at which plaintiff could work. The court then stated that plaintiff had listed four objections to such jobs; that there was no merit in any of these four objections (C.T. pages 109-110).

The trial court then concluded that these sedentary jobs were available to plaintiff, and their availability was based on substantial evidence. The trial...