George Mefford v. John W. Gardner, Secretary of Health, Education, and Welfare

MEFFORD, George Plaintiff-Appellee, GARDNER, Secretary Health,

John W. Education, Welfare, Defendant- Appellant. 16692.

No. Appeals

United States Court of

Sixth Circuit.

Aug. 1967. cabbages row of than raise a at his

home.

Appellee submitted attending reported physician who markedly enlarged heart, had a dyspnea, lungs, of both edema at the base Knoxville, Tenn., Bell, ap- for H. Gene ankles, diminu- and also at both marked pellant. right right leg, tion of arm and of reflexes McDiarmid, Department diagnosed of Robert C. and his afflictions as: “Severe Justice, C., Washington, obesity; enlarged heart; markedly pul- W. D. John Gen., Rose, Douglas, Atty. failure, monary edema; congestive David L. Asst. heart Atty., Washing- Department Justice, of cerebrovascular accident with residual ton, C., Reddy, Atty., John H. U. S. D. diminution motor of both sensor and Knoxville, brief, Tenn., appellee. right upper on for functions of and lower ex- right Appellee’s tremities and face.” also EDWARDS, Judge, Circuit Before attending physician further stated WEINMAN,* Judge, and Chief District opinion, “totally appellee in his was and Judge. McALLISTER, Circuit Senior any permanently disabled work.” Judge. McALLISTER, Circuit Senior reports Health, Education, Secretary Other substantiated The of medical portions attending physician’s appealed evi- and from of Welfare a diagnoses possible revеrsing dence and included the District hold- Court trouble, peri- ing possible cervical and disc which was based on arthritis, right joint. shoulder least decision of Examiner appellee totally a a favorable evidence was from not was Mefford appellee clinic had permanently which revealed that disabled. been turned down for work in mines Appellee years old, a man 55 who hypertension; because had that he extremely weighing obese, pounds. hypertension, taken treatment for but had got beyond grade He never the second in aggravated discontinued his it because only during school. His his labor entire gained pain; weight shoulder he had working lifetime was in mines. from had the time when his been skull hearings There were different three accident, fractured spite the automobile in this case before a Examiner. weight on that he was fact hearing (with The first not we are diet; reduction there was muscle directly concerned, which furnishes region right tenderness background case) the entire was posteriorly; pos- lower had chest he July 5, 1961, applications held on on filed albuminuria, hypertension, sible etiology September February and on physician undetermined. The at 18, 1960, claiming that had not clinic, examination, single on a been able since any experience without in the treatment which he stated after an automobile appellee, noted that he could insofar accident, in a weight suffered fractured he determine, not disabled. claimant skull, years previously, his had In the of the pounds; pounds increased from physician appellee, treated also job that he lost mines his the coal be- physicians that of two other who stated fainting spells; cause that he had labor, he was disabled manual right stroke in side 1957 while he physician statement looking lighter He had work. clinic, assumption, pain heart, right even on his seems high own arm, numb pressure, speculative

blood do no more and could and uncertain. * Weinman, Judge Honorable Carl District for the Southern A. Chief United States District Ohio. him available to work was found whether such For in which he in the area lived.” some either failed disclose the evidence themselves, reason, known curious had a cerebral accident claimant brief, Secretary, significant impair in their counsel for had that he Judge system Taylor, a brilliant assumed that ment cardiovascular of his circuit, jurist not un- high pressurе. did veteran this blood than that say: case; they found, simple reason,” be derstand “to this no “There is apparently based re “The order was not court’s would condition lieve that upon premise Hear- that the mistaken spond proper and other medication medically claimant management, had found that such as engage prior occupation weight supervised There reduction.” mining they support coal.” How could come these evidence whatever except inexplicable, contrary to this findings, conclusion to those which were maintain, they’'seem in attending Appeals resolved to physician. his The argument, court, this the the same decision of Council affirmed the supporting strongly Hearing face of evidence so Examiner. appellee. the especial- and From the medical evidence event, In case it is clear that the attending ly physician, well that of his as purpose of was remanded for sole the testimony, appear that as his would own ascertaining light kind of work what appellee shape. pretty His was bad appellee if kind of could do and such physician, mentioned, own stated that in the areа work was available to him totally permanently he disabled. was and which he lived. However, man, appellee poor was a and judgment District its the Court ignorant not read or man. He could found: lawyer represent write. He no to (1) seriously appellee af- That hearing, him to first he on the failed and pre- flicted a which with heart condition appeal Hearing first decision the carrying vented him from on the Examiner to the District Court within work that his educational and the allotted time. on; carry qualifications to enabled him Following the the first decision of (2) That Examiner had since found the Council, Appeals Examiner and light work, appellee to was able do appellee application filed a on Feb- new re- court held that the should be the case ruary 13, 1961, with which arewe here Secretary the to take addi- referred to concerned. There was a second then necessary, proof, if tional determine hearing application on the new before light Ex- if the the kind of which Hearing Examiner, again the found do, appellee avail- aminer found could nothing wrong appellee there was with lives. able him the area which obesity, than which сould con- trolled diet When before and the case came the medical care. Appeals time, Appellee Council intro- denied for the second review. represented by great was not the duced a of evidence that was counsel on mass hearing. But, appellee way, not before the court at it en- in some se- the time referring appealed judgment ‍​‌​‌‌‌‌‌‌‌​‌​​​‌‌‌‌‌​​‌​‌‌‌‌​‌​‌​​‌​​‌‌‌‌‌​​‌‌​​‍cured the counsel and tered case the decision its Secretary purpose. the United the for a limited in Knox- States District Court ville, hearing this Tennessee. On part of this ad- On basis of a small appeal, the Court District ruled “that which was introduced ditional evidence evidence showed that claimant does suffer objection ap- against counsel prevented from a ‘heart ailment’ which pellee, found working mine,” him from in a and coal way appellee in no whatever was disabled entered an order which court “di- work, pursuing customary from Secretary any specific rected what determine no need to make there was light jobs findings respect do, to what kind of could with work claimant meaning perform appellee which in the area in within the ty Securi- can Soсial engaging Act from in a substantial he lives. gainful occupation. The decision however, Hearing Examiner, affirming Appeals the denial Council that, in it was contem- stated the event appellee claim of therefore re- hearing plated supplemental remanded, di- versed the cause question what be limited appellee granted period a rections that light jobs available, there were were disability benefits in jobs area” “immediate Security accordance with the Social Act. Tennessee, Caryville, appellee’s home at ap- From such in favor of perform; claimant pellee, court, appeals this if into to be taken consideration area claiming that there was substantial evi- towns, nearby La- such as included Secretary’s support dence to determi- Caryville, Follette, from ten miles distant appellee nation suffer did not Clinton, miles distant fifteen impairment impair- combination of Caryville, probability that there was pursuing ments that disabled him from largest two several manufacturing existed customary work as a miner. The one, establishments— completely other ing that, unsubstantiated find- factory, hosiery other, shirt disabled, if even mill, аppellee, despite limited there is work for available him other experience, largely limited (cid:127)education and fields, industrial later in discussed working mines, to The coal could do. opinion. op say that Examiner went appeal When the first from the Hear- only jobs “if were were the that these ing (and Council) Appeals fact, were, and if claimant available” Court, Judge was before the District disabled to only light jobs, that could do the extent he Taylor recited in his that “The Examiner would con- medical evidence consists of statements significant clude that no number of Rogers, Pryse, Davis, from Drs. all and were, fact, available claimant within plaintiff, of whom examined or treated home; a radius fifteen miles of his Law, internist, and Dr. was re- that, if the en- claimant’s residence quested him examine the Vocation- compasses Knoxville, Ridge Oak and Judge Taylor, al Rehabilitation Center.” forty place which were miles from the opinion, in his went on recite: resided, probable claimant there was “the many jobs reasonably existence” in manu- “It is there from an ex- certain facturing establishments, slaughtering phy- amination of statements of these houses, meat-packing types suffеring and plaintiff sicians and that sedentary of establishments, with a that are of a ailment at the heart time semi-sedentary appellee application. filed his Plaintiff nature very performed. man, weighing obese could have around 350 pounds. years age He is some again appellee appealed and has worked coal mines since claiming Court, District under age It 18. seems that there was (cid:127)evidence, he was entitled application by plain- an earlier made payments, perform because he tiff which the Government states its gainful employment. substantial After brief is not before the Court at this hearing Judge appeal, L. on this Robert time. Taylor stat- entered an order which he prior application, “In the statements ed that find- the court “concurs Gilbertson, Davis, of Drs. Dan Sear- ings of the that the Govern- geant, Donham, Powers, Davis, M. L. any ment failed to that there is has show Acker, and were considered. work available do in which claimant can community lives”; during which he and “Counsel Government Judge Taylor appel- argument further found that indicated that the state- permanently totally lee part and disabled ments of these doctors not a are lа- manual pellee to do was unable present Counsel record. bor, they due to his condition. argues plaintiff should that present part record 2, been made a by reported on March Dr. M. L. Davis they since swelling and the Government pain and that the Court should made that hips, were not so joints, elbow, shoulders, wrist them. not consider joints. knees, March On and ankle reported they further agrees are Dr. Davis that if “The Court generalized trouble, appellee had heart record, has and Court not in the attack; pain they chest them, heart arthritis and to find not been able left left shoulder and with radiation should not be considered. right arm, side of his pain in the for the determina- “The sole issue right eye right head, localized in whether tion of Court in the case is totally ear; appellee had been and that there Furthermore, Dr. since 1956. disabled Secretary. support the decision ap- Davis, diagnosis, stated plaintiff The Examiner found enlargement pellee had a cardiac severe indicating work, thus could do angina pectoris and con- with attacks plain- recognized fact that he generalized failure, gestive heart disability. tiff some was afflicted with affecting joints includ- arthritis all the plaintiff “The record indicates that ing cervical, spine. In dorsal and lumbar would heart does suffer ailment including diagnosis, func- a more “Precise carrying prevent him from classification, therapeutic tional mining is the work which Association,” Dr. Davis American Heart do, appears qualified hav- appel- reported, after his examination n indicated, it, previously done lee, that he had: age. years since he was disease Hypertensive cardiovascular grade plaintiff only edu- has second enlarge- b) write, marked cardiac Has cation and cannot read left Caryville, and to Tennes- ment lives in the area of downward see, mining village. is a coal c) 160/100 deem neces- “The Court does not activity produces d) Very minimal sary the con- at this time to narrate dyspnea tents of the statements the various angina dyspnea also and hasHe gave concern- doctors who ing statements attacks, pain radi- has chest plaintiff.” the condition of left and left axilland ation to evidence, therefore, only arm upon before the court and which it relied swelling and ankles. e) feet Has stated, was, in its or order as is difficulty respiratory seems His Prysе Rogers, the Davis, and evidence Drs. origin. all of cardiac ap- had examined or treated treating appellee had been Dr. Davis pellee, Law, internist, and Dr. an em- years and stated previous two for the ployed by Security the Social Adminis- progressive, even condition was that his appeal, tration to examine him. On this reported further He treatment. with that, necessary it is recount medical evi- of his ex- opinion, result as a in his dence before the court at the time of its appellee, he and treatment amination remand, first decision and order of and permanently disabled totally was and following only medical evidence gainful employment. any that was then before the court. later, September Rogers, 14, 1962, report- Dr. months on on March Six again had that making examination, he ed that stated after Dr. he Davis treating been appellee appellee; had enlarged found that had an heart been totally 1956 on since spine, well for work as disabled as arthritis of the shoul- arms, joints ders osteoarthritis and of severe and most account body trouble, and that he that, opinion, spine, his ap- and heart his —and * * * markedly ently. Dr. obese. Davis enclosed There no evidence congestive with his examination at this failure time and X-rays appellee’s spine he had made of I do not think we can make the appellee and diagnosis obesity stated that had marked dif- heart disease ficulty moving present both and shoulders his He time. does have arms, probably secondary hypertension may “which is and he have some this arthritic condition in the cervical vascular strain on this basis since the spine.” x-ray interpreted showing as upper cardiac Pryse shadow at reported limit of March Dr. on Roseoe C. normal. The 21, 1962, appellee; albuminuria was also had that he examined found Dr. pain; Acker. that breath; he had shortness chest joints pain right side and diagnosis follows: “Final is as then shoulders; spine left stiffness obesity (1) Extreme stoop could not bend over without (2) Hypertension pain; heart; enlarged had an (3) Albuminuria, cause undeter- generalized arthritis; hypertension, and mined.” that, Pryse’s opinion, appel- in Dr. evidence, static; lee’s this medical condition was there With it, only any should before medical evidence absolute restriction of ac- might found part appellee. tivities on the District Court well addi- was, stating that, appellee tion his own testi- clinically, appellee from enlarged mony undisputed medical evi- heart, dyspnea resulting had an and the totally activity, permanently from frequent dence, disabled bronchial at- tacks, carrying respiratory symptoms that his from pro- appellee resulted occupation, had never involvement, since cardiac physician grade, beyond reported gressed had no appellee also the second training had special severe and could soreness education or and tenderness on right sign side, except his spine. write, his his not read or name, left shoulder and his only per- As a and that labor he examination, result of his Pryse gave during Dr. lifetime had his formed entire final conclusion working totally “this man is mines. perma- been nentally earning sup- disabled from However, Ex- because port by manual labor.” while aminer found carry work that was unable on the The last medical witness whose evi- en- condition dence education was considered the District perform, him abled to he Law, Court nevertheless was Dr. M.W. em- ployed work, by do the District Court could the examination the Social finding following special Security entered the Administration. While Dr. appellee, Law and order: did not treat he examined reported: him on one occasion and plaintiff seriously afflict- “Since apparently “This man’s trouble pre- has ed awith heart condition which carrying been to related his heart. He de- him vents from on the spells physical scribes some that consistent that are work his educational and hyperventilation with qualifications carry on, attacks him enable possibly could be related to acute left and since the Examiner has found as a * * * gen- light work, ventricular failure. The fact he is to do able eral Court, examination fair- showed and the ly hypertension finds, very severe Court mark- the case should be obesity. ed unexpected finding One Secretary to take re-referred additional right was an jerk absent proof, necessary, ankle to deter- if was not previously appar- mentioned mine the kind work which the Ex- if 1. kidneys. Albuminuria. Med. Presence of Albumin disease Webster’s New- urine, generally symptom Dictionary. International — you wish, hearing. prior If plaintiff is avail- do can aminer finds stop however, please the office he lives. where to him in area able days later the next few within Ribicoff, of Jаrvis v. the cases “See hearing my Monday, 22, and than Jurie Celebrezze, Cir., Hall v. glad secretary my or will assistant Cir., Cele- and Rice v. 314 F.2d 686 you. suggest them to show I (Em- brezze, F.2d 7 [1963].” you I because then call that date phasis supplied.) plan reports to a voca- to send these cases, su- Hall, Jarvis, and Rice tional witness for review.” type of what pra, with were concerned hearing, On the appli- employment an appellee’s counsel: stated dis- had been perform when cant could following physical labor have, from know, abled you I since Bell, as “Mr. performed. previously which he had me for remanded to this matter was evidence, attempted follow following Now, the direc- further instead infor- possible through leads on all of remand court’s order tions perti- ap- would be I believe ascertaining mation which nent, of work what kind the is- and relevant available material pellee do—and which your lives, attention I called us. sues before to him in the area in which I reports be- not limit himself to these additional Examiner did you supplied list reopened I with lieve that mandate but the court’s I be- documents that for the of the additional As counsel entire case. part rec- briеf, made lieve should be in their the District Court state Day yesterday I believe ord. before “ruled that evidence showed had you opportunity to ex- ‘heart ail- does from a claimant suffer you in this office. Did prevented from amine them ment’ which him work- further examination Ex- wish to in a mine.” make contrary aminer to his first this time? then found finding, contrary to the District sir, No, over I went BELL: “ATTY. mandate, opinion and Court's order carefully the rather documents day those that slightest way was not disabled conferred I have other my pri- going back I after the documents on associate as a coal miner. is suf- and I think them went over conclusion, the Hear- To arrive at this ficient. ing Examiner introduced in evidence on you ob- have Do “EXAMINER: hearing remand, pages of new record my placing into the jection to reports, exhibits in the form of medical identi- been that have documents letters, records, transcripts nurses’ B-25 Nos. proposed Exhibits fied as hearings, reports contacts, recommen- supplements through Now that B-50 ? dations, applications dependent for aid to the court is before record which the now, children, and multifarious other data. you it. I Do understand introducing Before this mass into evi- receiрt of these any objections' to the dence, Hearing Examiner wrote a let- identified we have documents which giving appellee ter to counsel for him no- through proposed B-25 Exhibits as Hearing tice that the Examiner had making? arewe B-50 into the record gathered pos- this data and it in had * * * willWe BELL: “ATTY. session. go agreeable into the for them Hearing However, in- the Examiner exception to take record but do we appellee’s formed counsel: them. of this addi- “Because of the volume what is the And “EXAMINER: information, tional would not your objection, Mr. Bell? basis and at feasible for this office this time objection is reports duplicated “ATTY. BELL: Our to have these sim- Sir, your the ply purposes point, that under for on this examination Judge Taylor order suffering from a heart condition Hearing, the prevented Federal Court the carrying mat- which him from out disability ter of such was previously not an is- the work in which he was en- only gaged. sue we It doing, feel. creating was determine In so and in a what a case, man this Hearing with can new the com- Examiner do. We this additional mitted feel medical error. disability, is as to his which is Hodgson directly point A case pertinent question not a time, at this (C.A.3), Celebrezze, F.2d 750 Sir.” McLaughlin, Judgе speaking for which misapprehension There was no court, said: Hearing Examiner’s mind that counsel for us was before case “When this appellee objecting excepting was that specifically held time we the first introduction this additional through Examiner evidence as stat- ‘ * * * the extent has determined ed: Hodg- by impairment suffered attorneys supple- at Hodgson “Claimant’s best that It is clear son. hearing excepted receipt mental right-leg be- impaired function has an in evidence omitted records only of these “re- a he retains cause and the leg. additional evidence That that sidual usefulness” secured, ground that has been on the in- is small usefulness residual beyond scope this was of in- suffered apparent since he has deed is quiry as in the Court’s defined Order. mobility major a loss appears It to be their contention that Moreover, noted the court below knee. question the sole before personal physician de- Hodgson’s tois determine what were avail- hav- condition as scribed his arthritic person physi- able in claimant’s since ing grown progressively worse cal condition in the immediate area Hodgson v. in 1955.’ the accident where resides.” (3 Celеbrezze, Cir. 1963). duty It reversed “In that decision we by Examiner, the District after remand (which conclusion Examiner’s Court, comply mandate Court) upheld the District been noted, case, court. The as we impairment finding remanded after a Hodgson determined had been seriously con “is afflicted with heart suffering, in in- to be does not result prevents carrying dition which him from n on the gain- ability engage in work that his educational Judge this, activity. ful As Chief physical qualifications him enabled Biggs, Court, speaking for the said: carry on”; Hearing Examiner and the “ was therefore “to take directed addition job suggested only specific ‘The proof necessary al if to determine if Hodgson in which the record kind toork which the Examiner finds might em- obtain substantial plaintiff can do is available to him in the op- ployment of an elevator is that (Emphasis sup area in which he lives.” nothing rec- find erator. We plied.) possibility ord to indicate Examiner was Although bound to dis- is'a one. it is realistic obey the of the mandate puted, directions with- is substantial there variation; out Hodgson failure follow physi- to the effect given instructions cally performing job therein capable error. He failed to sitting standing follow the instructions which entails instead, Court, and, the District walking, operat- intro- but little such as duced a pur- mass ing assuming evidence with the But elevator. pose holding, contrary Hodgson physical ability, to the decision has (cid:127)of the Court, District employ- where is to find such attempt requiring ment? There been no has Court ‘to enter a occupation Secretary to show this is one to ‍​‌​‌‌‌‌‌‌‌​‌​​​‌‌‌‌‌​​‌​‌‌‌‌​‌​‌​​‌​​‌‌‌‌‌​​‌‌​​‍determine whether open Hodgson engage are to someone is able to substan- Hodgson, physical like gainful activity his with tial to entitled educational and limitations insurance in the benefits history. principles vocational In the absence enunciated in showing opinion.’ of such a we cannot sustain this Hodgson. the denial of benefits to only to known “For reasons itself * * *> our to follow failed defendant finding, “Summing up Chief our proceeded to take addi- mandate and Judge Biggs stated: tional and other evidence medical “ ' impairment. physical first, to the claimant’s therefore, conclude, ‘We . part decision That of the Examiner’s Secretary applied too has with to claimant’s Not case. reference in this standard strict impairment comprises forty-six pages capabilities of only must “[t]he *** appendix. printed His conclu- viewed individual sions are much the same as found physical, edu- his own with context appeal. Appeals in the first background”, and vocational cational completely ap- Council of defendant F.Supp. Flemming, 178 Sobel proved practically of what re- fol- (E.D.Pa.1959), also impairment trial of the branch of the lowing question asked must be finding claim and endorsed the op- “[Wjhat employment resolved: impairment right plaintiff’s leg to a man who for portunities are there again found noteWe Examiner. applicant do? can do what can had been dis- ability engage in if to defendant Mere theoretical ruling part with our activity gainful satisfied Hodgson’s physical impair- as to Mr. opportunity enough if no reasonable ment, remedy should have been Kerner for is available”. this apply not, certiorari and under the (2 Cir, Flemming, for guise necessity, physi- rehear Second, 1960). the record when impairment cal branch in- case principles forth set tested dealing question with the sole on re- appear above, substan- fails there precisely mand which had been stated finding support a tial evidence opinion. in our Ex- The defendant’s Secretary’s necessary deter- presеnt aminer in decision dis- viz., disability, no mination agrees with our view of the record opportuni- there existed a reasonable respect to certain of the medical find- engage ty Hodgson in sub- ings. Again, petition there was no employment. stantial rehearing appeal by in that de- suggestion in a Neither the bare first fendant-appellee on that or report claimant litigation. strange in the element might operate an elevator be able practice sort basis specific allusions nor the less followed either opinion, governing in our sedentary job”, “some to “a Act or otherwise. standing job” “one “ walking a minimum” constitute is at * * * returned the claim to We ” such evidence.’ apply for him to Judge McLaughlin, after intro- principles laid down our law, duction and statement facts guided by and to them in determin- point di- came to the with which we are Hodgson whether Mr. is entitled rectly In his concerned this case. disability insurance benefits. opinion, he continued: “We then remanded the proceeding “As ^[******] we seen, there is no sub-

with the direction to the District case, stantial evidence on the whole in- 758 record, jus- litigation, given to put and,

deed no warrant be to when a tify decision the on cause has the received the consideration of by question court, to him the sole remanded determined, its merits and pass upon.” him to specific directions, this Court then remanded with (Emphasis supplied.) the court to which such is di- mandate power anything rected has no to do but The court then and remanded reversed obey mandate; otherwise, litiga- to the judgment with directions a dis- * * ended, tion would be never ability benefits be entered favor the Jurgensen Ainscow, 208, 160 Neb. against applicant Secretary. the N.W.2d 856. Judge foregoing opinion of general McLaughlin rule follows the duty remand, of a the it is “On appeal, on the remand of a after it case modify directed to a decree trial court court, duty of or is the the lower the court, by appellate the the agency taken, appeal from which to al. v. Pritchard et in no other manner.” comply with mandate of the court al., Ill.App. Fruit, 340. “Where et obey and to the directions therein with judgment or reverses an order this court departing out variation and without from specific in the case and remands with directions; * * * such a cause and that after duty of the it is structions appeal, has been determined court on of this the mandate trial court to execute agеncy appeal or from which is taken terms, according precisely to its court modify power open is without or modification, alteration, or without judgment appellate court, or order of the any respect.” change Hore’s In re precise or alter or relieve Est., 197, 590. 222 Minn. 23 N.W.2d specified fulfillment of a condition Upon by Supreme with reversal Court appellate judg effect of the a to render directions to the court below depend. Moreover, ment is made to if express decree in accordance with views specific cause is remanded with di opinion, proceedings had ed their rections, proceedings further in the trial contrary judgment to such or rendered agency appeal court or from which specific Car directions would void. compliance taken must be in substantial Superior ter Court in and for Los directions; with such if the cause is 388, Angeles Cal.App.2d County, specified remanded purpose, any for a judgment P.2d a has been 491. “When proceedings inconsistent therewith is er by appellate court and reviewed an ror; permit “nor awill court remand to duty remanded, cause of the it is the proofs merely new whеre it would comply lower court with mandate giving party opportunity re .to obey the directions contained therein open proofs * * strong * case make his lower without variation. Cyclopedia er.” of Federal Procedure. court has no matter discretion in such a 14, Third Edition. Vol. Section 68.98. meaning and if it is in doubt as to the ac- mandate it should look to the judgment “Where companying reviewing opinion of lower court is reversed and remanded tribunal.” Town Flora v. Indiana specific directions, ‘the court below Corp. al., Service et 222 Ind. N.E. premises, has no discretion in the but Indiana.) (Supreme 2d Court pursue appellate must mandate ” reviewing a “Where court reverses a court.’ Malcolmson v. Goodhue Coun judgment with directions render ty Wing, National Bank of Red 200 Minn. contrary judgment and to determine particular 274 N.W. 652. “When a * * * specified only, issue the trial judgment appellate is directed given court bound the directions court, acting the lower court is not of its authority retry any has motion, own obedience to the or issue, or to admit new in con- superior. superior der of its What reviewing flict with the says do, do, it shall must that alone. contrary judgment.” court, require Public enter end interеsts that an shall

759 system. Cal.App.2d 536, Finley, or cardiovascular heart of his Buttram v. 73 contrary directly “Respondents’ 654, to the evi- brief This was 656. P.2d ap- may argue physicians who treated had the court dence seems to that [trial] him, judg pellee and interpret who had examined and this Court’s review and validity reports at court of the whose were before the ment and even that the judgment may remand. But remark- the time of the the [trial] be tried argument able value attached London’s state- That cannot be sustain Dr. court. by Hearing Refining Examiner the ment the is Co. v. ed.” Humble Oil & although that, 656, surprising Fisher, 29, fact the Hear- 661. 152 Tex. 253 S.W.2d ing largely upon this may Examiner relied “This err its directions court statement, appears court, but, that Dr. London inferior however errone seen, examined, given may be, never had even the ous directions it is the appellee duty strictly the time. What could fol the inferior court to given any weight explanation the the in the low directions contained man opinion Hear- such evidence? The ing date this court.” Trustees of Schools supplies He Hoyt, the answer. Ill. N.E. 867. states: error which we clear Because noted, attor- claimant’s “As heretofore agree- out, pointed is in have and whiсh receipt in evi- neys excepted the also with the of the District ment report London. from Dr. dence Court, following controlling unwilling to concede The Examiner significance, it illustrates the method properly are unable to Examiners by Hearing which Examiner came evidence, particularly medical evaluate nothing the the conclusion that there was they of evaluat- have benefit where go appellee matter with and that reports comparing ing numerous back mines. many sources over from the same years. principal of medical bits One of Nevertheless, Examiner be- Hearing evidence which opinions au- of medical lieves during sought out and introduced though they thorities, not ex- hearing remand, upon after exceedingly individual, are amined an helpful, particularly relied, signed Dr. statement was ap- where there London, before Frank dated three weeks evi- ‍​‌​‌‌‌‌‌‌‌​‌​​​‌‌‌‌‌​​‌​‌‌‌‌​‌​‌​​‌​​‌‌‌‌‌​​‌‌​​‍parent conflict the medical hearing Ex- the final before (Emphasis supplied.) dence.” London, in This of Dr. aminer. statement Lon Dr. as Such statement response to the Examiner’s writ- be considered don’s cannot questions, ten the basis of all he never of the fact that evidence in view reports Ex- medical appellee, and in face saw or examined introduced, including aminer those not physicians who medical evidence of before the District Court at the time of long period of treated him over remand, disregarded order all re- him and came time but also examined ports Davis, appellee’s personal of Dr. totally and the determination he was totally physician, appellee permanently disabled. permanently disabled; report of Dr. Gardner, Hayes Rogers appellee was disabled (C.A.4), said: court labor; manual of Dr. Pryse totally appellee per- opinion “In evi- the instant ease manently earning sup- posi- supplied disabled from one in the best dence port Bartley from manual On the labor. basis tion to furnish it—Dr. —sub- reports Hayes’ that were before the never she stantiated Miss claim that remand, meaning District Court at the time in- within the is disabled cluding reports totally Glendy’s opinion Act. is at odds Dr. permanently disabled, Dr. London the con- with this evidence. We reach stated that the medical evidence did not clusion view of the any impairment appellee’s establish to the existence a dis- ability, combined with the оverwhelm- with atherosclerosis and ischemia. facts, may the uncontradicted He have had an old occlusion.

subjective evidence, place II, claimant’s vo- I would this man Class background, possibly cational III, slight the of a limitation of doctor activity. who never examined or treated he If could overcome some the claimant cannot serve as probably get substan- of his he fear would support tial along evidence to satisfactory. the Secre- much more I be- tary’s finding.” lieve he should be do able to some work.’ Celebrezze, 541 331 F.2d In Thomas v. Secretary (C.A.4), placed re- ****** the where testimony portion upon one of liance the reading considering the “After disregard physician over- of a record, whole the the court whelming contrary, evidence the the does not find that the Referee’s con- Secretary’s court held that the conclu- supported by clusions substantial are could not stand. sions evidence. It is obvious the F.Supp. Flemming, Sebby findings 183 In Referee are based (W.D.Ark.), physicians 450, 453, exclusively two 454 almost on re- pe- port applicant However, over treated the Hall. who had Dr. the court totally years he stated that does find riod of not that Dr. Hall’s physician whom incapacitated, while a sufficient constitute substantial by the applicant light referred been evidence in of the other Security Administration stated medical evidence and other Social facts re- place applicant in a transcript flected in would as whole. activity.” slight substantiality The class “with limitation of evidence must Miller, Judge However, John E. take into Chief account whatever in the reversing fairly of the record decision detracts from its granting weight. remanding for Corp. the case Universal Camera disability benefits, B., 1951, 474, held that there was N. L. R. 340 U.S. 456, support no substantial S.Ct. 95 L.Ed. 456. Secretary. In arriv- conclusions discussing requirement “In Judge conclusion, Miller said: at his of a review of the whole record in Security “The Social Administra- type, cases Davis, of this Professor plaintiff tion Ala- referred Dr. in Sec. of his 29.03 recent Treatise Rock, Arkansas, stair Hall of Little D. on Law, quotes Administrative Pro- for Dr. a consultive examination. page fessor Jaffe at 127 of Volume July report, Hall concludes his dated saying: 4 as 28, by stating: “ ‘ “Obviously responsible men “ year ‘Conclusions: This old would not exercise their history gives man attacks only part of the evidence weakness, questionаble blackouts, direction; one looks in the ra- rapid seem heart action which tionality substantiality or of a con- paroxysmal be attacks Atrial clusion can be evaluated in the Tachycardia. In between attacks light of the whole fact situation or fine but has to be careful about appears. so much itof Evidence activity. very He is nervous and may logically anxious about these He attacks. may deprived isolation of much not would take an ETT. The Vital of its character or its claim to credi- Capacity was normal. 70% bility when with other considered lungs X-Ray were clear on but ’ [Jaffe, evidence.” Administrative slightly enlarged heart was Procedure Re-examined: The Ben- plaques there were some calcium jamin along Report, Harv.L.Rev. aortic arch. The EKG changes (1943).]” showed moderate consistent facts reflected Obesity, be a seems to transcript aas whole. fairly in workers condition common disabled, injured a con been foregoing clear authorities rejecting sideration, their claims it effect ly law to enunciate explana disability benefits, meticu duty courts to examine is the many employment why, tion cases evidence, bur matter how lously the to them. field is not available a different is, hel duty because densome Gardner, F.Supp. Brown v. these records nature of the ter-skelter 772, the court said: way of adopt cases, facile and not observed “The injured applicant’s case disposing anof extremely doubtful that seemed upon, the to, and reference reliance acquired plaintiff had that the skills as physicians, of one two statements against readily spinner a transferable as were of statements the considered any type that of other than to work surgeons have many physicians and industry. provided He textile examining and opportunity of had more may plaintiff further noted that of treating applicant, occasions more doing stretching difficulty and in him, making reports upon job rapid walking required in the of diagnosis, as as well expertness in more spinning (which stooping also involves reflected upon of the facts consideration bending through eight hour transcript a in the as whole. might shifts), that find work but she availability em- regard of to the With remaining sweeper as a with her func- dis- applicant ployment who was an to sup- ability. tional It unrealistic to is work, former pursuing his abled from pose abnormally obese, illiter- Celebrezze, 359 court, in Williams v. ate, fifty-six-year-old who able to is (C.A.4), 950, 952, said: F.2d 953 only her with arms shoulders “Furthermore, examiner should the pain with and who is able locomote might reason- determine that Williams ably only all would be able to with labor required to an indus- be move pursue gainful activity. obtain and em- seek and there trialized area previously in at- Plaintiff had fact ployment must determine whether tempted employment in the to secure prior year old with an training 52 illiterate if once mills in an to see she effort job, with industrial again would be able to find history and claims a of some strength working, to continue she more, back- a rural oriented of position a at all. unable secure jobs employable ground would appraisal of the “A realistic record jobs are If such area. such available preponderance reveals that the of the em- only industrial in modern' available supports plaintiff’s evidence claim also be ployment, must consideration compels finding that dis- á she was analysis given realistic a meaning abled of the Act.” within employ- such problems involved (Emphasis supplied.) ment,1 mere in addition Merely physician because a “l. сonsideration include This would suffering applicant states that an policies employment upon the effect impairment precludes from an him company health insur- such factors compensation, plans, workmen’s engaging ance from ac in substantial fringe benefits.” and other tivity; slight only limita has job.” capacity perform activity; tion of and that he should Hearing opinion work, able to do some is not substantial probability” engage applicant held “there was can fac- gainful activity, jobs in a shirt existed viewed several when hosiery light tory mill fifteen miles and a of the evidence despite appellee, continuously Caryville, home doctors who had treated experience, re- contrary, applicant, limited education and testified to the 762 working mines, nities are for a there man with stricted to impairment. jobs The failure Sec- that such no substantial evidence retary the existence further state- establish were to him. available genuine employment op- that kind that “if ment portunity patent. only jobs And must be avail- that were these were presumed were, fact, available dis- best able” and if claimant proof presented. could do this has been abled to the that he extent proof unacceptable jobs, That under the Examiner would conclude ” Hodgson.’ Celebrezze, Hodgson significant were,

that no v. number * * * fact, (C.A.3). 312 F.2d 263 available claimant within radius miles of home—is fifteen affording “Cases from other circuits reasonable, contrary and is main towering support principle are holding Examiner. More- Celebrezze, F.2d 361 Miracle v. over, Ex- Celebrezze, (6 1965); Cir. Torres v. aminer if claimant’s residence en- (1 1965); Mas 349 F.2d Cir. compassed Ridge Knoxville, Oak Celebrezze, sey (6 F.2d Cir. v. forty place which were miles from the 1965); Ray Celebrezze, resided, prob- claimant there was “the (4 1965); Celebrezze Cir. many jobs able existence” of there Warren, 833, (10 Cir. 339 F.2d 837 manufacturing slaugh- establishments, in 1964); Celebrezze, F.2d v. 338 Ratliff tering meatpacking houses, 978, (6 983 A.L.R.3d Cir. [11 1124] types of establishments that were 1964); Celebrezze, F.2d v. Hanes 337 sedentary semi-sedentary of a or na- 209, (4 1964); Thompson v. 215 Cir. ture per- which could have Celebrezze, (6 412, F.2d Cir. 334 414 formed, was not sustained substan- 1964); Celebrezze, F.2d Frith v. 333 evidence, probable tial since the exist- 557, (2 1964); 561 v. Cir. Graham ence, specification without further Ribicoff, (9 391, F.2d 394 Cir. 295 actually positions whether such were 1961); Flemming, v. Butler F.2d 288 available, pure speculation was a * * * 591, 1961). (5 594 Cir. part Examiner without Hodgson’s age, “Given Mr. disabil- support. evidential ity, family financial and we factors Hodgson Celebrezze, In v. 357 F.2d completely were first convinced on the 750, (C.A.3), 755 the court said that: appeal necessity the reasonable possibility of work which he could “And is in settled law this Cir- in home re- undertake must exist cuit that activ- gion. ity speaking use of reasonably possi- means ‘of is There what ble, employment out for him Farley not of somewhere what is conceivable.’ Celebrezze, 704, (3 labor market v. which 315 national F.2d 708 Cir. 1963). by ordinary decision, nothing not reach local trans- As in portation pos- suggests any this record from home. Reasonable such reason- Hodgson sibility being possibility Hodgson. able meant hired for In Stan- cavage pos- Celebrezze, just and means a realistic v. 323 F.2d (3 sibility. pie sky job 1963) not 378 Some Cir. there was a factual picture completely comparable within a distance of realistic Scranton job possibility is not a before reasonable one us. there We held: Hodgson.” “ suggestion ‘The there Seldomridge Celebrezze, In F. v. 238 perform- list of “221 can Supp. 610, 619, question similar by persons ed with minimal educa- arising those arose above cases tion sedentary and that are in char- and the court said: only light rеquire acter or exertion” Dictionary Occupational very meaningful. Ti- “The must There makes extensive reference to skills something tangible tles more estab- industry light required lishing are employment opportu- what subject, on the Population: as in the recent case most Census jobs. U. S. per- applicant reading is unable interesting that where occupation, question employed form his usual are persons who number man jobs can the Pennsylvania then indus- arises as “what types of in various capabilities do with residual relevant data is But none tries. gen- in and are there such available industries determine whether Newman hiring eral resides.” their area which Pennsylvania men are (April (C.A.6) Gardner, simi- v. have disabilities late fifties Thus, 1967). plaintiff had. lar to those which argument United States the oral F.Supp. Bradley Gardner, fol- Attorney pointedly asked (D.C.S.C.), the court said: lowing : “Finding that a claimant is not able “ * * * isWhat ‘THE COURT: yet employment return his former making my infer- the basis capable engaging is still gainful in some Appeals more, ence, for even activity supported must be making the inference that Council particular findings, both as to the hiring Pennsylvania industries are plaintiff capable perform- is still had the fifties who men in their lаte availability em- and the these Appeals limited ployment opportunities to him What he had. Council found that areas in which he resides. Williams you that?’ documentation do Celebrezze, (4th 359 F.2d 950 Cir. question To which the United States 1966). Virginia Hardy, Mrs. a voca- replied appropriate can- Attorney consultant who ‍​‌​‌‌‌‌‌‌‌​‌​​​‌‌‌‌‌​​‌​‌‌‌‌​‌​‌​​‌​​‌‌‌‌‌​​‌‌​​‍at the tional testified dor : hearing on the Government behalf of I find.’ that can ‘None stated that there unskilled find such evi- she would recommend to the Neither can the Court plaintiff. suggested light farm- dence. there is no evidence to Since She ing, suggest employment opportuni- nursery work, plant, caretaker at a ‘what in the ties are there for a can do and referred man who to advertisements applicant newspaper Kerner what can do?’ into the record. introduced [916], Flemming, supra, appraisal plaintiff’s im- v. 283 F.2d A realistic 921, pairments, background, no ex- and since there has been educational * * * showing record, perience employment prior ‘realistic * * * prognosis expert there a reasonable the [exists] engage opportunity plaintiff opinions for the to recommendations makes such (Em- employment’ speculative in remоte and at best.” 667, Celebrezze, F.Supp. phasis supplied.) Fedor v. 218 (E.D.Pa.1963), 668 and since there in this case The evidence suggest not a scintilla of evidence to amply foregoing show authorities the employers competitive in- ‘whether in there no substantial was dustry hire do such would claimant to findings support of the the Celebrezze, F. work’ Secoolish v. 216 applicant the effect Examiner to 935, Supp. (D.N.J.1963), 939 the deci- whatever, way well in as disabled reversed, Secretary sion of the must be that, finding he had if the further as granted summary judgment for prior pursuing his been disabled plaintiff.” occupation, available there were Flemming, In Butler 288 F.2d v. taking into perform, jobs he could which (C.A.5) Cyrus Celebrezze, and in v. education, ability, back consideration (C.A.4), F.2d it held that avail- experience. ground, ability might job applicant of a an which disposes raised issues perform general in area above must exist ato applicant appeal are relevant which in which also on this lived. This court adjudications many in as determination. has held well final Report In view the fact that there was no in the House be taken as grounds support substantial evidence to ing find- for reversal the rule laid jobs by many past. that therе were which available down It so courts in perform any place, Report, seems in it is to be said that House unnecessary agreed regard, one of discuss the con- this was not urged by Report, tentions counsel the Sec- nor Senate mention retary Report. effect that it was error made of it in the Conference availability hold that of such committee House general go very must exist area in which “does not inten- far to show the applicant majority lives. tion gress.” of both houses of Con- F.Supp. Murray, Porter regard, this Re- 402. neither Senate Since now asks this court to reverse itself on port Report nor the Conference mention- (345 Massey 146) case on the F.2d Report respect, ed the House we ground it hold that was error to that the persuasive do gressional of Con- not feel availability job applicant of a an which many intent to overturn the might perform, general must exist disability payments. relating decisions applicant area in which lives. The rule Moreover, many cases, includ- cited job opportunities such must exist ing adjudications court, re- of this general applicant area in ferred to “work available to the claimant lives has bеen followed this court for general lives, area” in which years at least four in numerous cases. locality rather “in the than previously It is the rule same enunciated lives,” language stated by the Appeals United States Court of Report House to mean a seems place, —which Cyrus for the Fourth Circuit in Cele limitation than to definite rather brezze, the United general applicant area in which Appeals States Court of for the Fifth lives. Flemming, Circuit in Butler v. 288 F.2d Appellee in 1956. He became disabled given 591. The reason for the Secre application filed his first tary’s Report stand is No. House September 3, 1959, and fur- benefits on Cong., p. 88, Sess., 89th 1st it was ther, February 18, failed He 1960. stated: appeal of the Hear- first decision “In original line with the ex- views the time. within allotted pressed by your committee and since application He filed reaffirmed, thereafter a new eligible to be an individual February 13, must we are with which demonstrate that he is not unable, by hearing reason of this a of men- here concerned. On impairment, tal perform type of long opinion application, was filed a previously work he did, but that he is was Examiner. The .the case unable, taking also into account his Court, appealed to thereafter the District age, education, experience, per- and direct- the Examiner which reversed any form type other of substantial lighter jobs ed him ascertain what gainful work, regardless of whether or hear- applicant perform. Another not such work is available to him in long upon and a remand held his was locality in which he lives.” was opinion by light In many of the decisions appealed for filed. The case was then the District Courts and the Courts Court, time District second Appeals holding that where man is on all appellee in favor of which found unable, impairment, per- reason of Secretary grounds directed the type did, form the previously of work he years pay disability benefits. Eleven perform he he must show is unable to passed disabled have since was type of work available to in him years passed first general since six lives, area in we hearing feel that Examiner. the statement above mentioned before

765 ap- (concur- EDWARDS, Judge Taylor two Judge Circuit L. heard Robert first, ring part). part; dissenting In peals Court. in the District Secretary for it to remanded Judge I concur McAl- with much hearing, the second purpose. In limited particu- lister’s in this case— appellee and ordered he found in favor larly in this court’s reaffirmance of disability can payment benefits. We Miracle v. Cele- views stated in agree for counsel with (C.A.6, 1965) brezze, 351 F.2d 361 Taylor, con- Judge after the careful Massey (C. Celebrezze, v. 345 F.2d 146 gave two to this ease on sideration he A.6, 1965). hearings, about the facts mistaken however, necessary, I to add a find it simple We concur case. Gardner, few comments. v. Collins judgment. 1967), (C.A.6, reiterated 373 F.2d we 727 proof appellee’s disabil referred support case this court’s for the ity strong, and the evidence to an ex-coal dealt with above. There we lacking contrary substance. degree suffering sili- miner from second applica long pendency “After the performing cosis disabled thus tion, the ease reason to remand see no we occupation. previous But we lifetime testimony.” taking for further held contained sub- the record where Cyrus Celebrezze, capacity stantial evidence a residual (C.A.4). availability of such work and Sobeloff, Judge speaking As general where area work within the court, declared in like circumstances lived, District claimant the United States Celebrezze, Cir., Cooke 365 F.2d Judge in аffirmance been correct 428: disability denial of benefits. “However, purpose we see useful however, case, the Unit- In the instant remanding the case once more to the Judge ed reversed District States Secretary. already spent has Cooke findings Hearing Examiner and years five fruitless in consultation granted disability claim- benefits. Virginia with the West Rehabilitation miner, again ant in an ex-coal this case is job Division search of classifica- filing years time of the old at the tion and it clear from the vocational application. for 26 He his years had worked counselor’s extremely He in the mines. limited education—not lack weighing approximately obese, of motivation—are the chief obstacles although only pounds, inches in feet 11 retraining job. him for a new No grade height. education He a second has job availability might theoretical skills, associated and no those other than hearing be adduced at still another can mining. of his the time At disestablish the verdict of Rehabili- Cary- application (and lives) he lived tation years Division after five ville, Tennessee, 38 miles of distance proving, injury that this claimant’s has miles from from Knoxville and 10 to 15 effectively preсluded engag- him from Oak somewhat nearer towns industrial ing any activi- Ridge and LaFollette. eight years elapsed ties. Over since Cookewas forced his to abandon Hearing The last Examiner’s job. His claim for insurance benefits after made an initial remand year is litigation, well into fifth its Judge found United States District and we think the District Court should perform- claimant was not disabled from judgment now plaintiff.” enter for the work, prior basis and on that many foregoing, proceeded accordance with hold that there were of the District Court affirm- available do in the is which he could economy. ed the case remanded with both direc- He discussed these latter grant tions the claim- and a radius terms a 15-mile radius disability ed miles, benefits. include Knox- which would course, exactly are, thereupon found that claimant that. There He show ville. repeated recommendations of doctors benefits. was entitled to go rigorous appellant should Hearing held that The Examiner first appellant diet. testified without dis- But appellant’s complaints heart and back pute he had tried to and failed diet disabling. conclu- were not While this weight. to lose strongly certainly disputed in sion was Appellant’s medically record, my opinion condition is de- this there was literally Hearing “exogenous,” support which medical ‍​‌​‌‌‌‌‌‌‌​‌​​​‌‌‌‌‌​​‌​‌‌‌‌​‌​‌​​‌​​‌‌‌‌‌​​‌‌​​‍scribed evidence to findings respect. found no internal means that the doctors Examiner’s in this body physical malfunction Hearing The Examiner concluded then caused it. No one took the trouble appellant was not disabled at all decid- explore compulsion emotional ing appellant’s obesity extreme was re- impairment” appellant’s “mental mediable. I find rec- no evidence this might obesity. have caused this support ord to this conclusion. record Nor does the contain noted, As exploration appellant’s own claim principal handicap “Claimant’s em- auto that after a skull fracture in an ployment obesity.” extreme Obes- accident he was told that he ity every problem is cited aas medical nothing gain weight would and there report dealing appellant’s psycho- he could do to reduce. Yet both condition. It is related in those medical logical injuries factors reports appellant’s heart, back recognized hypothalamus causes are complaints. shoulder involuntary obesity.1 Appellant’s certainly obesity extreme delay regret Much I further as would medically on this record “a determinable long litigation, protracted I would this impairment.” or mental See ques- testimony remand for on the crucial Barr, Obesity: Light Health, Red obesity appellant’s tion of whether or not Overweight Overeating, and Obes is remediable. ity (Nutrition Symposium Ser ies No. Founda National Vitamin tion, Inc., York, Y., Jan.1953). New N. appel- treats obesity” years lant’s “extreme of 25 dura-

tion as if it were condition which

had willed on himself in order to defraud Security the Social Board. If facts supported BUSSIE, wife, conclusion, Victor Gertrude I would cer- Bussie, al., Foley Appellants, et tainly agree that no one should be able fraudulently way to eat his onto Security objec- Social rolls. But such an al., Mrs. Revere et Blanche LONG tive hardly appellant would Appellees. have led this carry pounds into 30-inch coal No. 23944. years mining. veins for 25 of coal Appeals United States Court finding The critical of fact in this Fifth Circuit. case, believe, whole I is the Ex- Aug. 1967. statement, showing aminer’s “There is no weight that claimant could not control his

by proper diet and medical care.” Ac- tually, undisputed there is

appellant’s living working quarter century obesity of a with his Obesity: McGavack, (Hoebor Cause,

1. Gelvin Its Classification and Cabe 42-47 Harper, York, N.Y.1957). New

Case Details

Case Name: George Mefford v. John W. Gardner, Secretary of Health, Education, and Welfare

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 17, 1967

Citation: 383 F.2d 748

Docket Number: 16692_1

Court Abbreviation: 6th Cir.