Thomas v. Celebrezze

• Citation: 331 F.2d 541
• Decision Date: 15 April 1964
• Docket Number: No. 9215.,9215.
• Parties: Clistie Bell THOMAS, Appellee, v. Anthony J. CELEBREZZE, Secretary of the Department of Health, Education, and Welfare, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

331 F.2d 541 (1964)

Clistie Bell THOMAS, Appellee, v. Anthony J. CELEBREZZE, Secretary of the Department of Health, Education, and Welfare, Appellant.

No. 9215.

United States Court of Appeals Fourth Circuit.

Argued January 22, 1964.

Decided April 15, 1964.

Lawrence R. Schneider, Attorney, Department of Justice (John W. Douglas, Asst. Atty. Gen., and Alan S. Rosenthal, Attorney, Department of Justice, and John C. Williams, U. S. Atty., on brief), for appellant.

James B. Stephen, Spartanburg, S. C. (Harvey W. Johnson, Spartanburg, S. C., on brief), for appellee.

Before SOBELOFF, Chief Judge, J. SPENCER BELL, Circuit Judge, and MICHIE, District Judge.

SOBELOFF, Chief Judge.

This action was brought by the claimant, Clistie Bell Thomas, against the Secretary of Health, Education, and Welfare, pursuant to section 205(g) of the Social Security Act, 42 U.S.C.A. § 405 (g), to obtain judicial review of a final decision of the Secretary denying her application for disability insurance benefits under sections 216(i) and 223 of the Act, 42 U.S.C.A. §§ 416(i) and 423. On May 20, 1963, the District Court entered an order reversing the Secretary's decision, and the Secretary appeals.

I.

The prescribed standard of review, found in section 205(g) of the Act, 42 U.S.C.A. § 405(g), is as follows: "* * * The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, * * *." Substantial evidence has been defined innumerable times as more than a scintilla, but less than preponderance. Consolidated Edison Co. v. N. L. R. B., 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938). The Secretary, and not the courts, is charged with resolving conflicts in the evidence, and it is immaterial that the evidence before him will permit a conclusion inconsistent with his. Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962). If his findings are supported by substantial evidence, the courts are bound to accept them. Underwood v. Ribicoff, 298 F.2d 850 (4th Cir. 1962). In short, the courts are not to try the case de novo. At the same time, they must not abdicate their traditional functions; they cannot escape their duty to scrutinize "the record as a whole" to determine whether the conclusions reached are rational. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Boyd v. Folsom, 257 F.2d 778 (3d Cir. 1958); 4 Davis, Administrative Law (1958) § 29.02, pp. 118-126. If they are, they must be upheld; but if, for example, reliance has been placed upon one portion of the record to the disregard of overwhelming evidence to the contrary, the courts are equally bound to decide against the Secretary. Park v. Celebrezze, 214 F.Supp. 153 (W.D.Ark. 1963); Corn v. Flemming, 184 F.Supp. 490 (S.D.Fla.1960). In such a circumstance the courts are empowered either to modify or reverse the Secretary's decision "with or without remanding the cause for a rehearing." 42 U.S.C.A. § 405(g).

Unlike labor cases where appeals from the National Labor Relations Board are taken directly to the court of appeals, in Social Security cases, judicial review is initially in a district court, from which a further appeal may be taken to a court of appeals by either party. The substantiality of the evidence to support the Secretary's findings is the issue before each court. Farley v. Celebrezze, 315 F.2d 704 (3d Cir. 1963); Ward v. Celebrezze, 311 F. 2d 115 (5th Cir. 1962).

II.

The record before us discloses that the claimant was born in 1909, that she did not complete more than the second grade of elementary school and has never received any specialized vocational training. For approximately 35 years, from the time she was 14, she worked in the weave room of textile mills in South Carolina. Her only work experience has been in such mills. In 1959 she underwent a radical surgical operation for breast cancer in which her left breast was removed. She has not worked since, although the record is uncontradicted that as far as can be medically determined the cancerous condition itself has been removed.

Her work in the weave room fell into two categories — weaver and battery filler. Weaving requires one to bend over a loom, pull a lever and draw in broken threads, while filling batteries requires one to transfer bobbins of thread manually from a supply bar to a roller cart, push the cart around the weave room and fill each battery with some 30 to 40 bobbins as it becomes empty. In the weave room of her last employer there was one battery for each loom and about 90 looms. The claimant stated that battery filler was "probably the easiest job in the weave room * * * from the standpoint of requiring physical stamina and activity, but one engaged in this job also has to be fast and able to use hands, arms and shoulders."

Mrs. Thomas complains that as a result of her operation she is extremely uncomfortable when on her feet and that the discomfort becomes unbearable if she walks a block or two. She also states that she is unable to use her arms or shoulders with any degree of dexterity — and the use of both arms is necessary in the work — and that her left side gives her such pain when she sits for extended periods that she must lie down to obtain relief. In the request for a hearing which she filed with the Secretary, she said:

"I am just sick all the time. I have a smothering and can\'t sleep at night and pain & swelling in my shoulder, neck and arm all the time. The place where my breast was removed has not healed."

The medical testimony submitted to the Secretary consisted of reports of a number of doctors. Dr. Sam O. Black, Mrs. Thomas' physician, in a report dated May 12, 1960, found that Mrs. Thomas had a "considerable edema of the left arm from the axilla to the hand" and that she had "considerable limitation of motion of this left arm." He concluded that it was "inconceivable to me that she is able to do any labor whatsoever." In a May 30, 1960, report he characterized the disability of her left arm as "severe," and on October 20, 1960, he commented on the continued "limitation of motion of the shoulder due to loss of pectoral muscles." He also noted that she was overweight and "obviously quite nervous."

An orthopedic surgeon, Dr. Frank H. Stelling, observed the existence of a "brawny edema of the left arm and forearm" and a "restriction of motion in the shoulder." His opinion and recommendations were as follows:

"This lady has a chronic edema, lymphatic stasis and venous stasis of the left upper extremity, post mastectomy and lymph dissection of the axilla. She has also some fibrous ankylosis of the left shoulder due to chronic disuse and protection.

"I think that it is difficult for this lady to use her left arm constantly for anything requiring lifting and moving over long periods of time. Her hand is quite good and she can use her hand to some extent. This condition is permanent. There are certainly many things this lady could do from the standpoint of her physical abilities so that one would not consider her totally disabled from a physical standpoint; however, this lady has only a second grade education and has worked only as a mill worker all of her life, doing heavy labor in the weave room. I am certain she is not able to do such work now, and with her arm as it is, it would be very difficult for her to find other work with her lack of education." (Our italics.)

Another physician, Dr. D. H. Smith, in a March 23, 1962, report, restricted Mrs. Thomas' activity to "very light house work" and described her condition as "static."

Dr. John Keith, an orthopedic surgeon, in his report of June 4, 1962, said that Mrs. Thomas' left arm was more puffy than the right but that she was able to raise a book, open and close a safety pin and grip a hammer fairly well. His diagnosis was: "(1) Residual limited motion of the left shoulder * * * (2) Degenerative arthritis of the dorsal spine."

The report least favorable to Mrs. Thomas was made on June 20, 1962, by Dr. C. Warren Irvin, Jr., an internist. He found Mrs. Thomas to be an "obese, worried appearing, obviously depressed female who does not appear acutely ill." It was his impression "that Mrs. Thomas' predominant problem is that of a depression state and that she does not have residual physical explanation for the majority of her symptoms." (Our italics.) He found that the claimant's left arm was larger than the right and that she did have some "arthritic changes in her vertebrae which could explain some of her pain in her neck and arms" but he considered these a minor problem and suggested that aspirin would provide relief for the arthritic pains.

In addition to the medical evidence and Mrs. Thomas' description of her disability, the personnel manager of her last employer expressed an opinion, based upon his own observation and upon medical reports furnished in connection with Mrs. Thomas' group life insurance, that she was not "physically capable of performing any of the above duties weaver or battery filler nor any other job in a textile plant."

The statute, 42 U.S.C.A. § 416 (i), defines "disability" as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration * * *." While it casts upon the claimant the burden of proving that such...