James H. Floyd v. Robert H. Finch, Secretary of Health, Education and Welfare

McCREE, Before WEICK Circuit Judges, McALLISTER, Cir- Senior Judge. cuit WEICK, Judge. Circuit appeal This is from an order of the granting summary judg- District Court McAllister, Judge, Senior Circuit Secretary pro- ment in in a favor opinion. lengthy dissented in ceeding review denial of Security benefits under the Act. Social 42 U.S.C. 423. § Appellant, Floyd, a truck driver Co., age, years Armour & who was 55 application November filed his disability benefits, alleging that since June gage en- he had been unable gainful activity in substantial be- application cause of arthritis. His again initially denied on reconsidera- by tion Administra- Social granted evidentiary tion. He was an hearing examiner, hearing before adopted findings of fact and concluded Floyd failed to had show med- suffering ical evidence that from impairment severity of such would preclude engaging him from in substan- gainful activity. tial Floyd requested then review Council, Appeals attorney and his sub- report mitted a medical which indicated pulmonary arthritis and also a condition by history, which had not been consider- ed trial examiner. Two addition- reports procured al medical were Secretary: internist, one from an orthopedic surgeon. other from an Appeals Council considered evidence before the trial examiner it, reports the new medical filed with adopted findings of fact the entire Floyd record. no concluded that pulmonary impairment; mild that his Zeitlin, Irving Louis E. Peiser and S. prevent arthritic did him condition Memphis, appellant. Tenn., for engaging ac- in substantial tivity; Ruckelshaus, the decision affirmed Atty. William D. Asst. Gen., trial examiner. Hollander, Heier, Morton Robert M. range Court, proceedings examiner checked for motion. The District When attention directed back review, found substantial areas, patient findings leg quite support the Sec- obvi- factual straight gives responses granted summary judgment. ously retary false leg raising Hip tests ex- and Patrick the Sec- decisions of Judicial review of apparent quite is amination. This fact, findings retary limited. His any from the fact that he did not show evidence, supported are substantial if complaint limitation of motion or when 405(g); Rose 42 U.S.C. § conclusive. being earlier this area was observed 1969). (6th Cohen, Cir. 406 F.2d 753 in the examination without his knowl- try permitted cases to Courts not are edge.” Gardner, novo; F.2d de Walters 1968). (6th He further stated: Cir. patient’s to may in the “This not resolve conflicts motivation Courts Objective obviously extremely poor. questions credibil- decide evidence or findings subjective support ity. Celebrezze, not 340 F.2d Moon v. symptoms.” (7th 1965). Cir. testimony his Dr. Anderson in compensable under In order to be opinions findings and viewed medical Act, the im 1967 Amendments and came to the that claimant conclusion pairment must result from abnormalities did mild arthritis in his back and have by medically ac “demonstrable neck but— diagnos laboratory ceptable clinical and “* 423(d) (3) use of his extremities techniques.” [T]he tic 42 U.S.C. § (1964 satisfactory Supp. III). should be amend and of his back These ed. anything except heavy lifting.” applicable present case ments are final. as the not become decision has gave opinion He that claimant could supra. Gardner, Walters v. forty-hour provided work a week he was weighing required objects not lift submitted The medical evidence twenty pounds. reports more ten to Secretary from Doc- than consisted Horton, Ray, Hoover, and Whitte- tors degenera- found mild Dr. Whittemore more, testimony Ander- of Doctor spine lumbar tive reaction in cervical and hospital rec- son. Claimant submitted on reasonable medical certain- but “based Hospital Joseph’s and re- ords from St. ty patient should able move Myhr. Kasselberg ports from Doctors about, objects perform sus- handle light activity requiring exertion.” tained The medical evidence submitted essentially Secretary that claimant was pulmonary no in- Dr. Horton found pre- not mild would arthritis which cough volvement. Claimant did have engaging in vent him from and the doctor recommended that he ab- activity. also to ef- smoking. stain from symptoms subjective were fect gave Myhr, internist, Dr. who a re- findings. supported the clinical port claimant, for the found that he had Ray subjective symp- stated that his “Pulmonary emphysema and fibrosis proportion to the toms were far out of history.” He did not relate findings. this objective findings clinical it from but obtained concerning gave Dr. Hoover evidence history. Horton, claimant movements and of claimant activities findings, made clinical determined presence, incon- Doctor’s which were Myhr no such condition existed. Dr. also and neck sistent with claim back “(1) found that claimant had Cervical impairment. He stated: osteoarthritis, severe, (2) disc Cervical syndrome C6, C7, patient quite apparent at and C6 “It C5 (3) gave spine.” quite Osteoarthritis the lumbar reacts to ac- touch opinion He claimant— resistenee movement when the tive economy. time “is unable to work at isted the national Breaux Finch, (5th pulmonary 1970). mainly dis- v. 421 F.2d Cir. because his cervical ease also because of The fact the claimant receives causing syndrome him disc which is per from other sources month about $223 pain, neck also be- considerable pension retirement spine cause of lumbar arthritis.” inquiry. insurance is irrelevant to our Kasselberg reports made concern- opinion In our there was sub ing during hospitali- three examinations support stantial findings the factual Joseph’s zation Hos- claimant St. Appeals Council. It is pital report in 1964. His first our function resolve conflicts improved the lumbar condition arthritic the evidence or determine of credi issues report with medication. The second in- bility solely of witnesses. This is the prognosis dicated there was an excellent Secretary. function of the improvement, for third indicated the required The prove law the claimant to recovery prognosis that as to full impairment by that his was demonstrable limited but to the immediate future it medically acceptable clinical and labora- satisfactory. Later, on November tory diagnostic techniques. agree We 11, 1964, reported he that claimant “was Secretary with the that claimant failed present able return to work at to do this. I do if will know he ever be able to type return to his usual of work.” His Affirmed. type lifting heavy usual of work was weighing meat, loads of as 229 much Judge McCREE concurs.

pounds. Secretary did The not claim this, that he couid do that could but he McALLISTER, Judge Senior Circuit activity. in substantial (dissenting). majority opinion Claimant The testified that he walks about states that the eight day; blocks a that he District mows his Court “found evi- substantial power mower; support findings lawn with that dence he walks the factual of grocery groceries; Secretary granted summary for store automobile, longest judgment,” trip “findings drives an and that his of during being fact, supported by if last months twelve substantial evi- miles; conclusive,” spends dence, about 150 that he most are of sustained (about judgment. his time day) such three hours a in a building, 10', yard, small x in his 10' back easy enough ap- It used to be for an cutting spice out racks with from wood a pellate court to affirm an administrative jig saw, hobby; which does as a agency ground findings on the that the that he also makes wooden chains. supported “by were substantial evi- dence,” just if it could find a trace of the view medical evidence support evidence to them. But that subjective symptoms claimant’s anymore. Congress grew not the case supportable, were not and the evidence ig- critical of such affirmances which responses of his false in one of the ex conflicting and, turn, nored evidence aminations, we cannot criticize trial brought about harsh criticism questioning examiner for his of claimant. ground courts for such on decisions hearing The examiner found that claim merely that cases were affirmed because perform many ant sedentary could occu appellate court find could evidence pations Dictionary listed in the of Occu which, isolation, the record viewed pational Titles, II, pub I and Volumes findings. substantiated a Board’s Department lished of Labor. NLRB, Corp. In Universal Camera proper Secretary for the to take ad 340 U.S. 95 L.Ed. S.Ct. ministrative notice that ex- supra, Board, Relations Labor declared: “Pro Mr. Frankfurter Justice obviously courts ‘shocking means against injustices case tests agen- the decisions judicial should scrutinize ‘abdication’ intimations past, they cies, in the more than have granted enforce some courts they reason- are to ascertain whether ment the Board’s stimulated orders great number and fair. The pressures legislative al able relief past, reversals, in the excesses,” errors leged administrative warning sig- cases, provid Taft-Hartley these constitute result Act supplied.) (Emphasis findings must be nal.” ed that such of fact “supported obviously appellate took no- courts * * * con We record whole. as a Supreme tice commands clude, therefore, Administrative “searching the record” Court as Taft-Hartley Act Procedure Act findings, agency little has since view of more now assume must directs that courts Supreme Court been said responsibility the reasonableness subject since. decisions than Board fairness Labor However, cases benefit past. in the have shown some courts Security Act, the deci- under the Social Reviewing must influenced courts and their Examiners sions they feeling not to abdicate law, findings of and conclusions of fact Congress judicial function. conventional Secretary’s the decisions responsibility imposed them has based, unjustifiable and were became so assuring keeps within the that Board rights poor people who hostile to the * * * grounds. The reasonable reviewing disabled, fed- that the became respect; findings are entitled Board’s shocked, repeatedly and eral courts were they aside be set but must nonetheless decisions; ad- later reversed those Ap the a Court of when record before decisions,, reversing judications, like clearly peals precludes the deci Board’s pointed of such out the unusual number by being justified esti sion from a fair obliged to re- were cases that the courts testimony of the of the mate of worth compared were verse, that number the judgment on witnesses or its informed affirmed, emphasized the what Su- special competence matters within its or searching preme ex- Court had said as both.” aminations of the record. Since, appears, have there hereafter Feinberg instance, Judge in anAs great been number of reversals com- 733, Celebrezze, F.Supp. Scott v. 736 241 pared the of the decision affirmances searching emphasized (S.D.N.Y.), how the Secre- by the the must be review courts Sayers tary, in v. this court has held observing Secretary, that action of the (C.A.6), Gardner, F.2d 380 943 reported 227-236 in volumes the cases carefully “the records should be exam- Secretary Supplement, the Federal courts, by the ined and reviewed times, been remanded 47 reversed opinion generally written, should Likewise, upheld only 27 times. while law, setting to show forth facts F.Supp. Seldomridge Celebrezze, 238 v. reality, have, the courts as- Judge Higginbotham (E.D.Pa.), responsibility sumed more the rea- October, September, emphasized the deci- sonableness fairness of Sup- and November of the 1964 Federal agencies, sions than some federal Security plement, Administra- Social past', courts have shown in the of tion reversed in at least 75% reviewing courts must be influ- of the reversals were cases and that 90% by feeling they enced are not of lack of evidence because judicial abdicate conventional Secretary. findings support function, have been directed as we Celebrezze, F.2d Supreme Miracle cautioned Court on the Corp. (C.A.6), this court commented v. National

Universal Camera Lightcap made in Cele- gainful employment. statement issue, The brezze, 209, 216, (D.C.) F.Supp. therefore, is whether the additional evi- court, adjured by Supreme Appeals dence adduced before the Coun- respon- together more cil, Court “must now assume record, can the entire sibility for the reasonableness and fair- affording be considered substantial evi- agencies ness” of Secretary’s the federal “than some support dence determi- past,” courts have applicant shown and “Re- nation to en- that the was able viewing gage courts must be influenced employment. in substantial feeling they are not to abdicate the controlling The case judicial conventional function.” And the therefore, is, that adduced before emphasized: court Appeals Council. That evidence consist- by.Dr. report ed of a medical Lamb B. “The review cases for Myhr; report a medical Dr. Glen E. benefits under the Social Act Horton, report by and a medical many aspects. onerous from The Wendell L. Whittemore. case before the Examiner is informally. heard This means that Myhr, fully as related more here- practically there is no examination or after, reported: any witnesses, cross-examination of except physical examination at “[Claimant’s] usually himself, the claimant this time cally man, him shows to be a chroni- man whose life has been one hard appears ill older than labor, education; and, and with little * * * age. stated There is tender- sometimes, a Vocational Counselor. spine bilaterally ness over cervical record, part, for the most con- with limitation motion of his cervi- sists of letters and written statements spine cal in his neck is made regarding disability claimed, worse flexion and of his extension it, Many extent of or the lack of it. ** spine. cervical There these statements consist of official considerable tenderness over the printed applications forms of and re- spine positive straight lumbar with a ports in, handwriting filled in the leg raising bilaterally. No reflex individuals; repro- various and their changes are noted. He wears lumbo- requires in duction the record often la- sacral pain. belt because of his back decipherment. borious These records “X-rays spine of his cervical show searching investigation by call for the spondylosis region marked in the courts, searching district and further ** and C5-C6 also C6-C7. investigation by appellate courts.” summary, “In (1) this man has Cervi- In the majority opinion, severe, (2) cal osteoarthritis Cervical therefore, appeared it opinion that this syndrome G7, C6, disc at C5 and and clearly should searching show that a ex- spine Osteoarthritis of the lumbar made, amination of the record has been * * * undisputed fully stated; facts and it is my opinion consideration “In which ac- this man is unable to * * * length counts for the and detail work at of this this time because opinion. syndrome, his cervical disc which is causing him pain, considerable neck agreed by It is now this Court that the and also spine because of lumbar art evidence before the hritis.” was support findings sufficient to Secretary of fact of summation, appli- Myhr’s that Dr. examination cant was able to in and report explicit stating in Myhr’s 1. report We have history,” report by omitted from meaning Dr. “from some pulmonary emphysema by mention of Administration, and the Veteran’s or an- fibrosis, from, history, obviously hospital. because other by Myhr that mention Dr. was made have, chronically man, thus, We, applicant ill in addition Dr. was spine Myhr’s report, reports of Dr. Horton cervical tenderness with over bilaterally Dr. to consider as limitation of motion of of Whittemore with Appeals pain spine, in his neck additional evidence before with his cervical regard by Council, applicant’s disa- extension of made flexion and worse bility. spine, and considerable ten- his cervical wearing spine, derness over lumbar specializes pulmonary Horton Dr. of his neck because a lumbo-sacral belt and, apparently, diseases, for this it was pain, spondylosis of his cervical and with sought reason alone that his were views C5-C6, spine C6 and between between Appeals Inasmuch Council. C7; applicant had cervi- severe pulmonary there is no claim here for dis- syndrome osteoarthritis, disc cal cervical ability, most of Dr. Horton’s evidence C5, osteoarthritis C7, at C6 be excluded. Dr. Horton this area can Myhr’s spine; the lumbar Dr. patient has also been seen stated: “This ap- opinion, from his examination up Orthopedic follow Consultation plicant, was unable to was that he February 28, apparently 1966.” well disc of his cervical at that time because February report dated Dr. Horton’s causing syndrome, consider- which was 23, 1966, at the so he must have known his lumbar able neck and because report that Dr. time he made his Whitte- spine arthritis. This examination applicant on Febru- more had examined report Myhr, of Dr. dated October ary 1966. Council, Appeals called for Horton, specialist pulmo- Dr. comprehensive It fur- definite. report, nary diseases, in his sets forth report final dated ther substantiated referring applicant, whom he exam- applicant’s 11, 1964, treat- November ined: Kasselberg, ing physician, complaint ‘arthritis “His chief accompanied by attached notes and my hips, spine and neck.’ summaries. patient that he has had “The relates Myhr’s report If Dr. is alone consid- pain, periodically back and neck Council, together Appeals ered hospitalization at the since 1950 with report, Examiner’s family phy- Joseph Hospital by his St. could not afford substantial Lyman sician, Kasselberg, and A. Secretary’s decision, for the Orthopedic Con- seen has also been report Examiner’s was based Galy also in Ted sultation erroneous view so-called of claimant’s by Neuro-surgical Dr. Consultation concessions. Wallace, hospitalized at the Peter when decision, Joseph Hospital it felt support Secretary’s To St. hypertrophic The arthritis. there must be further evidence adduced he had then, Dr. Kassel- Appeals patient he sees Council, before the relates every berg support approximately once three can be considered evidence to states, injection Secretary’s and he for an decision. weeks ‘My hips hurt all the time. ache and only in addition to that evidence my change position all I have Myhr, Appeals of Dr. before the adduced just the bones time. It seems like Horton, Council, was that of Dr. Glen E. my my hips to knees.’ throb Whittemore, Dr. L. Wendell ‘my arm patient relates left report report also “The attached to Horton’s Dr. stings. stays asleep time and Harry report all the Dr. E. Dr. Davis’ Davis. right my head to the graphs I turn is When concerned of arterial just feeling like back, comes back explained; blood studies. It is not turning to wear being I have on. is no irrelevant view of claim up my head arising brace to hold neck therefrom. made for ailments my some in work because cervical and lumbar helps numbness always spinal I arm, also arthritis. is there and but it leg My left brace. a steel back wear We, then, of the have discussed two right my is worse than persons producing three evidence before Council, Myhr Appeals Dr. and Dr. history he has sweat- indicates “Other ing Ap Horton. As the evidence before pits and takes medication arm * * * stands, only peals then, Council now he has arthritis nerves orthopedic tingling is the basis hand evidence — which in his numbness and ** applicant’s claim — is the *. evidence particularly in his hand left Myhr applicant Dr. effect year old male white “Patient unable to because of his severe wearing collar, did a neck but osteoarthritis, cervical his cervical disc appear to have abrasions C5, syndrome C6, C7, at and his os apparently did his He not have this. spine. teoarthritis the lumbar day exam- back on this steel brace although pri- There remains ination, now the evidence examination was Dr. marily L. pulmonary Wendell Whittemore to consider of his an evaluation being Appeals the basis on which the status.” affirmed Council the decision of the Sec- pulmonary It seems curious that in a ex- retary. Dr. Whittemore hired in amination, Horton did not know Secretary. this case applicant wearing whether his steel However, It is the evidence of Dr. Whitte- brace. Dr. Horton further re- Secretary rests, more ported that the case of the : case, prove and to the evidence of “He is somewhat thin and looks some- Whittemore must constitute substan- years. Actually what worn for the can, applicant tial ‘Myneck, complaints my legs, chief language statute, ’ perform * ** my wearing back He is gainful employment. susbtantial collar, objective a neck evaluation of movement of the neck is a little bit Dr. Whittemore’s evidence is: appears difficult there some to be discharged “[Applicant] was from the hyper-reaction although he states he Army in 1946 with a 60% gets pain referred to the left arm. for arthritis and nerves. After that However, I would defer to the Ortho- he worked as a truck for Ar- driver pedic consultant’s examination and Company, mour and working and continued ** finding. orthopedic From the 4, 1964, for them until June standpoint, and arthritic I defer will stopped when he because of back specialist to which he has been and blackouts. He was advised referred for this. There is consider- Company tire Armour and disportation able apparent between the family physician, Kasselberg. subjective complaints patient * * * He localizes across objective finding observed essentially lumbosacral, the lower back here, again but here I feel that further sacroiliac, gluteal and in distribution. orthopedic documentation from an con- * * * Regarding legs, pain the his sultant priority should have first at times starts in the lower and back regard hips extends into the the and back point principal The legs, to be noted in the heels, sometimes to the but most foregoing objective is that there were no time is above the His knees. orthopedic findings aggravated noted or pain by activity, mentioned is such So, Dr. Horton. standing as far as sitting, prolonged, the evi- if goes, dence of diagnosis bending Dr. Horton orthopedic lifting, particularly when Myhr unquestioned, of Dr. is pain he is is His described nervous. nothing appears and Myhr’s usually detract ache, an also a soreness. He applicant view that is sharp, unable does not have severe catches vary pain. It does some extent and was treated at the Isolation Hos- rest, gener- periods pital. varies with ally, but quite he is stiff and sore patient “EXAMINATION: The is 56 morning improve and seems to a little years old, average tall, 5 ft. in. 9% up. mornings, after he limbers weight patient The is slender. lbs. usually aspirins, takes about four pelvis relatively The is level. He has during day, he takes about good standing posture. There ais eight aspirins. emphasizes He that his large right scar, chest, consistent with pain constant, pain is that he has some segmenta surgery. chest The lumbar Regarding neck, all of the time. good, tion on is at movement least 3+ hurting it has been him for about pain complain flexion. He does years. three There has in- been no flexion, recovery flexion and also jury. getting It started stiff and sore. bending. hy backward He flinches began He to notice when he bending. perextension and on lateral turned his head. The extended generalized pal There is soreness into the base of the neck and into the back, pation through no the lower but region, may go left shoulder down to spasm intrinsic muscle is demonstrat the shoulder but seldom into the arms. tightness. paraspinal ed. There is no However, tendency the arms have a palpation There is soreness to in both go sleep from the elbow down to the notches, sciatic and left is worse. stays hand. The hand is worse and thigh pain. is There is There no asleep constantly, almost described as pain along no the course of tingling almost a constant the hand. thigh. With sciatic nerve especially night This is bad fre- at sitting, patient he flexes the lum quently up asleep. wakes hand with the relatively little bosacral well and with pain. complaints regarding He has no at all palpa There is no soreness to right arm. He has worn a collar hips and trochanteric tion about the years for his neck about three at Range hips regions. of motion of the Kasselberg. advice of Dr. He wears it Range of motion of is normal. pain. PRN when he has It seems to crepi normal, there is no knees is help give complete but does not relief. Straight leg rais tation or effusion. He wears a corset. This was ordered ing full 90° without definite for him hospitalized when he was at deep pain, and tendon reflexes sciatic Joseph Hospital St. in June Leg lengths are in. are normal. Kasselberg. He was admitted at in., right left calf The calf is 12½ regarding this time for evaluation thighs in. Both in. 16¾ 12½ Cervical pain, myelogram back range spine is flex- of motion stayed done Dr. Walláce. He in the 4+, pain, lateral extension ion 3+ hospital about one week. He read- 2+, guarded painful. left, bending, Joseph Hospital mitted to St. in June Right bending 2+, pain. no lateral again August 1964 and 1964, stay- right pain, Left rotation is 4+ ing days respectively. to12 Treat- 4+, pain. Both shoul no rotation physical ment therapy, consisted of motion, range of ders have a normal traction, says and a corset. He pain, atrophy, ten no local no no gives helps. corset him some relief reflexes, upper Deep tendon derness. but does pain. not relieve all of his extremities, arms Both are normal. patient surgery The in 1957. Part in, midbiceps. measure at 10% lung of was removed because of room patient moves about spitting up epigas- blood. In gets limp. on and He without a repaired by

tric hernia was Dr. Mc- examining ease. table with off the Caughan. appendix easily. squats raises He He Kasselberg. removed He had effort without the toes heels meningitis any years trouble. Circulation old without when was 38 case, any the evidence adduced good. in this is no There evidence Council, together Appeals feet and before in the weakness extensor Hearing Exam- evidence before ankles. iner, evidence to must afford substantial Spine, Film: AP Cervical “X-RAYS: Secretary’s support determination appearance. Essentially normal perform applicant was able degenerative noted. reaction Some agree work. We substantial degenerative Film: Lateral Shows Hearing Exam- evidence before C-5, C- between

reaction between C-4 — alone, iner was not substantial evidence C-5 5-C-6, C-6—C-7. and between support the Sec- the determination of distortion and C-6. show considerable then, Did, retary. adduced the evidence anteriorly. in osteophytes The Appeals Council and based before terspaces between C-5 — C-6 and C-6— record, support the deter- the entire very The cervical C-7 are narrow. Secretary? The answer mination There is no rever is flattened. curve question to this must be resolved our Spine, AP Film: Shows sal. Lumbar of Dr. to the evidence conclusions as segments, spina bifida five lumbar only Whittemore, other evi- since S-l, media noted. occulta contrast Appeals Council was dence before degen mild Lateral Film: Shows some Myhr, evidence that of whose reaction, Interspac L-2-3-4. erative unable that claimant was to the effect es, however, are maintained. well osteoarthri- to work because of cervical regard spine, the “In to the cervical syndrome, tis, and osteo- cervical disc degenerative patient joint dis- has a spine. arthritis of the lumbar The and old. ease which is advanced then, Whittemore, evidence Dr. discogenic degenera- lesions consist of tion, sup- had to afford substantial evidence condi- C-4-5-6 and 7. This Secretary’s port determination necessarily painful. Lesions tion is not perform applicant able to that the type frequently of this seen gainful employment. Did substantial symptoms. patients with no How- afford such Dr. Whittemore’s evidence ever, a certain amount of vulnera- Secretary’s support determina- to the bility valid, this stress opinion, it not. tion? In our did reason, requiring activities arduous objectionable. exertion would be opinion that He stated that was per- patient “I that this could believe carry out claimant not be able would activity physical form sustained exertion, physical stated arduous but light quiring exertion. applicant to move about. should be able “Concerning back, applicant about is The fact that could move the lower there degree statutory degenerative joint stand- dis- some does conform mildly perform His ease which is advanced. ard that he gainful able to substantial be appears employment. localized in the lumbo- sacral area without ability of added to the Whittemore intrin- radicular nerve involvement or moving about, handling objects, that spasm. sic reflex muscle applicant “perform sus able to would be light my opinion, requiring “It is exer based on a reason- tained activities certainty, patient to the stat able medical tion.” This does not conform carry performing utory would not physical exertion, out arduous be able standard gainful activity. activity in which he should be able “The but about, objects, per- plaintiff must must be move handle able ‘gainful’ requiring form it must also be sustained activities but ” light Folsom, F. exertion.” Dunn v. ‘substantial.’ (D.C.Ark.) Supp. Now, what does all mean in And, now, much of a so claim for this case which benefits made, under the and about which Social Act? It means research has been

83 written, aggravation quire comes down to so much has been serious without single gen- point: present physical impairment crucial Dr. Whitte- or to appli- Hearing that the Otherwise, more’s view evidence eral health. perform findings sustained should be able to Examiner’s amount to cant would activity light exertion, requiring pure (Emphasis sup- speculation.” fails to statutory plied.) standard that claimant meet gainful activity. perform

can substantial foregoing, From the it seems obvious point, in unani- this it was held adduced On to the writer that the evidence Massey not, opinion Appeals in mous of this court v. did before the Council (C.A.6) 146, record, Celebrezze, 157 345 F.2d the entire when considered with proving applicant support that an not that "in afford substantial evidence to precluded performing Secretary’s substantial determination. from enough gainful employment, it is not the (1) examination of After a meticulous upon rely testimony that a claimant can record, opinion that: are of we ‘light work work.’ What performing disability Appellant’s specified.” (Empha- consists must gainful employment sus substantial supplied) sis evidence; (2) The by substantial tained “light ease, type Hearing Examiner In the no instant determination Strange say, although specified. appellant, work” was disabled type work, en returning there of such could was no evidence to his former Counselor; by gainful activity gage work even from a Vocational in substantial regard, unique case, many jobs in performing listed for it is a in this Titles,” Dictionary Occupational no since Vocational Counselor sworn “The holding Massey concerning testified as a witness. v. witness Our which no Celebrezze, introduced, supra, not re- has never been and no evidence was (3) keeping evidence; oth- supported versed. It is in also with Appeals Hearing er cases and the heretofore cited relied The Examiner prejudicial, this court. reversible committed Council proper failing employ le error Celebrezze, Clemochefsky F. 222 making gal determina their standard Supp. (D.C.Pa.) the court said: disabled was not tion that through evidence, proper “Once medical but- application of their the rule subjective Cir., tressed Theberge evidence from States, F. v. United claimant, sufficiently repeat has shown a has this court 2d impairment, error; (4) severe it must be deter- edly held to be reversible impairment, plus Ap if mined such claim- That the Examiner status, pre- guilty ant’s educational and peals of reversible were Council subsantial, gainful activity. Congress clude holding estab error Ribicoff, Blankenship F.Supp. program for the lished a conservative (S.D.W.Va.1962). this disability benefits, In cases of whereas allowance kind, alleges liberally where the claimant ina- construed the Act must be bility substantial, gainful benefits, granting of favor the such activity, personal physician, (5) and his based charge man in whose claimant has mis cross-examination of likewise, health, entrusted his claims disad statements if examining physicians dispute vantage applicant; are to Ex they contention, badgered give repeatedly must be aminer opinions. receiving compen medical basis their cause he was veteran’s say payments sation, pension, is that a man retirement sufficient suf- physical impairment some his em for total as a result of fers yet form of ‘light ground ployer’s plan, pension can do work.’ It must be on the medically work, spite looking perform shown can he was jobs physical advised that his doctor had activities certain the fact 26, appel- early February 1962, employer’s as it, As against and both Hospi- Joseph physician had admitted to St. own lant physician his was and Tennessee, Memphis, treatment permanently total- tal and was found he Lyman Kas- of A. disabled; Examiner his arthritis ly and the cross-examination, Appel- selberg, attending physician. his of his manner discharged lant on March appellant, nervous and was who was caused diagnosis suffering anxiety radiculitis of re- with a cervical from a chronic was conditions, service), and with (connected and other arthritic his war action “satisfactory.” indigna- prognosis a of agree, his because of sudden work, tion, perform later, 8, 1964, ap- years that he could certain on June Two candling “light” egg pellant hospital and other such as as was admitted to the regard occupations, “black-out,” to the evi- without suf- a which he result of a totally permanent- working he was dence that sink. fered while at home on a disabled, although ly his evidence pain own which He also had back and neck continuously diagnosed Kasselberg that he suffered as cervical time, only arthritis, stating gradually could stand for a short sit for lumbar necessary short and that improved a time was on medication. While in the lying many down. As hospital, appellant rays relieve had X tak- Hearing Examiner, result, en, a who complete a series tests. required applicants, appeared to hear or their impossible at- to be to ascertain torneys, kindly, patiently, why He, courteous- he suffered “black-out.” ly,2 prejudicial denying displayed however, undergo bias continued to considera- appellant’s application, suffering and the decision ble from arthritic neck Secretary pains, based thereon should be back and he received “shots” Kasselberg. reversed. Moreover, foregoing Examiner com- appears All of the in the dismissing mitted reports error the evidence Kasselberg of Dr. and of Paul L. practicing physician Lee, had Representative who been Claims of the So- treating appellant period a Security over of seven- cial Administration. Mr. Lee years ground on teen reported erroneous has appellant, also at the physician did much not know about 3, 1964, time contact on November applicant; among matters, other that he disclosed erroneously accepted upon, eighth-grade relied education; had an and at deciding case, physi- wearing time he was brace employed paid by cians who were Appellant around his “mid-section.” in- Security Social Administration and had Lee, interview, during formed Mr. applicant seen the one occasion that he had been nervous and tense examination, against for a routine many years, since the conclusion of his appellant’s physician evidence of who II, had service World War here- which will years, many treated him for those fully after be more related. He been physician well as granted, according the evidence of another Lee, Mr. veter- whose evidence payment 50%, an’s permanently totally disabled. Such was awarded because of his nervous 30% single physician, condition, examination which was service-connected. physicians, According the Social Lee, appellant’s Ad- to Mr. fin- ministration, gers contrasted with the evi- slightly on both hands seemed practicing dence of the puffed, .appeared and he uncomfortable treating applicant had been pe- thighs. for a and rubbed his Mr. Lee noticed years, not, riod of could under the ad- that when in- rose leave judicated cases, terview, be the basis a find- “he leaned forward on knees ing supported by substantial evidence. and his back seemed to ‘catch’ when 2. Executive Committee Trial Federal Examiners’ Conference. Vol. Federal Bar Journal 391. * * * medicine; Alka, anti-inflammatory He seemed rose leave. way.” legs give would as if his and he was fitted with a lumbosacral wobble support. response His at that time was hospitalized When quite satisfactory re- the treatment as 8, 1964, day that it the first June was being “ambulatory,” sulted in his without workday Armour he had missed a with any difficulty walking up down and arthritis, excep- with because of his steps, pain and the sciatic nerve had al- days’ hospitalization tion of twelve Kasselberg’s disappeared. di- most Dr. following 1964, instruc- 1962. Since agnosis “Hypertro- at this time was: Kasselberg, prescription tions and of Dr. phic spine arthritis with lumbar back-brace, appellant has worn steel a radiculitis,” prognosis and “As was: corset, surgical spine, on his and lower a recovery, limited; full im- as to the collar, of a made either of leather or future, quite mediate seems be satis- stiffly-woven material, pain. neck factory.” July 1964, again 1, appellant On was 11, Kasselberg 1964, On November Dr. hospital admitted to the of treatment being reported: discharged from “Since Kasselberg pain back, in his Dr. hospital, Floyd Mr. has continued time, aggravated and, found was at that my recovery under care and has radiating pain there was considerable satisfactory. too been He is not able down the of nerves. course both sciatic present return to work at and I do tightness There was also of cervical if not know will ever be able to re- spine and lumbar lim- musculature with Later, type turn to his usual work.” tight- itation of motion this of because Kasselberg Dr. stated pain. ness Pain in the cervical would never able to return to work spine, according Kasselberg, radi- Dr. condition; because his back girdles. Appel- ated to both shoulder was when he came to this conclusion hospitalized days lant was on twelve up he took the matter with the this occasion. treated He was representing appellant’s employer; physiotherapy traction and and cortisone physicians, employ- as well as the two preparations. re- also had muscle He er, companies and the two insurance con- gradually improved. laxants and He was cerned, granted appellant pension for discharged considerably improved as permanent disability. and total Dr. Kas- out-patient was to be followed on an selberg told work all at basis, prognosis. with an excellent “supposed any- —that he was not to do August 27, 1964, appellant On thing. any- told The doctor not to do me ** * again hospital admitted thing. because The doctor told me not pain spine pain in his cervical to do kind of work.” spine. previously in the lumbar He had Following hearing before responded physical therapy “to mus- 1965, August 31, Examiner on relaxants, tractions, but, cle etc.” granted Appeals Council review Kasselberg stated, “lately Dr. has This Examiner’s decision. gotten progressively worse and is admit- through review was secured the efforts ted for further definitive studies. appellant’s counsel, thereafter There is considerable amount of tender- tained, procured the additional in- ness spine over the lumbar and consid- formation in the form of medical re- erable amount of limitation of motion port, 1965, 23, which was dated October spine of the lumbar because of muscle signed by Myhr, D., mem- Lamb B. M. tightness pain, radiation Department ber of the of Internal Medi- pain this down both nerves. sciatic Jackson, cine at the Jackson Clinic of * * * Straight leg-raising painful.” Tennessee, Appeals and submitted to the Council. Appellant discharged hospital September 6, 1964, on report, Myhr at which In the stated that he time he was treated appellant; with Butisolidine had appellant’s examined orders, pain stopped complaint his doctor’s was neck main $4,800. day posterior sur- he was amounted On into the extended appellant’s bilaterally; hospital, earn- scalp removed to the face ings higher through were much than in both shoulders considerable arms; appear. As as the that he wore will hereafter into late both hearing (already as a date of the his claim for dis- described Thomas collar ability ap- surgical leather, plastic August or thick- benefits collar seeing every material, pellant Kasselberg keep ly-woven vertebrae impinging in his three on the nerves weeks. conceded The Government neck). appel- Myhr arth- also stated that received tablets for ritis, continually pain, pain injections complained and in his low lant of severe legs hips. region at the of his in both and time visits Dr. Kassel- back and berg; reported the latter had also the examination and and he He mentioned diagnosis appel- placed appellant Bonine, drug by Kasselberg Dr. suffering dizziness, and Al- lant remedies ka, Butisolidine was from cervical and drug. Appellant lumbar informed anti-inflammatous arthritis. Myhr

Dr. that he was unable to Myhr reported; Dr. pain neck, pain in because of the in his physical “His examination this time hips, region, legs. at his and lumbar chronically shows him to be a man ill appellant repeatedly After had been age. appears and older than stated hospitalized pay and his sick had been * * * There is tenderness over the used to the maximum which allowance to spine bilaterally cervical limita- with thirty he was years entitled of the basis his spine tion of motion of his cervical service, Kasselberg of directed * * * and in his There neck. appellant work, return to con- and is considerable tenderness over sulted with the Company, appellant’s employer. of and Armour spine lumbar *. He wears was lumbosacral belt of because his back time, previously at this stated, pain. Kasselberg phy- employer’s total sician went over tally disabled, The two pension plan. conclusion of the Armour and lant’s panies for granted service, $95.00 company, permanent appellant’s physician, appellant disability physical a month. For concerned in appellant also receives $52.00 Company agreed arriving condition filed for and total company, permanently appellant his in the amount of matter of at the conclusion and, pension plan permanent insurance thirty years disability and a its as a physician, under pension and result, appel- com- to- its marked “X-rays between bar and C cal ic ed). disc C 5-C and “In marked ^[*] anxiety osteoarthritis, severe, (2) summary, spine, (4) Pulmonary fibrosis from syndrome secondary ^[*] spondylosis C (3) narrowing 5 and reaction Osteoarthritis his also this man has ^[*] at arthritic cervical C 6 and C history, C 6-C 7. There 5 and (service changes. C and C 6 6C and C 7 spine ^[*] emphysema (5) interspace (1) region the lum- connect- Cervical Chron- Cervi- ^[*] show monthly pay. as retirement my opinion “It is this man is unable Manager The Personnel of Armour mainly to work at this because Company time appeared as a witness on pulmonary his disease also because hearing and afterward testified to syndrome of his cervical disc which foregoing. by He was asked causing pain, him considerable neck Examiner whether and also spine because of lumbar arth- good very awas employee. replied: He ritis. very good “He was a employee.” Ap- pellant’s earnings year for the he Myhr, before B. Lamb D.” M. however, surgical was, and a steel back-brace corset Appeals Council neck, Myhr’s had his been collar around persuaded prescribed physician to alleviate of the Hear- vary from that decision its pain. Examiner, his lumbar and cervical referred ing to which it condition, re- its conclusion and because of which it relied peated hospitalizations, supported from sub- not disabled opinions physicians activity. of three gainful stantial longer work, petitioned could no then, appellant, point, we have At this disability benefits out of allowance fifty-six years old at the time Security fund, he had Social to which heavy engaged hearing, who had been working during all of his contributed thirty years Ar- for more than labor was, years. petition, answer To his Company. dis- He become mour and view, en- “No.” In our this answer was during soldier his service as a abled tirely unjustified. Appellant’s proof of II, and since then has World War inability in substantial ceived service-connected 50% activity was sustained sub- payments Adminis- from the Veteran’s stantial The determination evidence. tration, a amounts which $77.00 appellant en- not disabled from was month, large of dis- a share which is for gaging gainful employment in substantial by ability caused arthritis by was not sustained evi- suffering he has been since 1947. dence. During year applica- prior to his appellant’s The chief of disabil cause disability benefits, faint- tion for he had ity by appellant pain. is claimed times, hospital- ed several and had been and conceded Government syncope, ized as a result of and because pain from cervical and lumbar suffers increasing pain of cer- of arthritis his evidence, Appellant’s osteoarthritis. spine. vical and lumbar June Between attending physician, the evidence of August 26, 1964, appellant Myhr, as that of as well B. Dr. Lamb hospitalized been for four different times appellant is unable to work because pain from his neck and back. doc- Two pain. of cervical and lumbar The medi tors, one, treating agreed physician, is, cal evidence the Government permanently totally that he was dis- appellant cervical does not suffer physician, Myhr, abled. The third pain pain is not and lumbar but that giving behalf, appellant’s evidence on enough “per prevent him from severe after a careful examination him forming requiring sustained activities taking rays setting after X forth his exertion,” specifying — without interpretation of them with the reasons appellant what kind do. of work could opinion, for his stated fact, there is no evidence whatever employer, able to work. His and the two any the case from witness as what companies granted involved, insurance jobs appellant perform or could pension him his retirement also suffering while from the cervical and

pension permanent and total disabil- admittedly, he, lumbar from which ity. Although ap it is conceded that suffers. pellant could not return to his former This workingman, was the de- disability, work because of his no Voca Manager scribed the Personnel Counselor, witness, sug tional or other Company having Armour and been “a gested any lighter job kind of he could very good employee” during thirty only possible do. The discussion of such years service; who had missed who, jobs Hearing Examiner, days arthritis, twelve of work because of admittedly, expertise, had no and who during period employ- the entire of his suggested egg candling, jobs, such as ment; presented and who himself do, and read into his could the consideration of the Exam- wearing findings iner Appeals extensively Council from “The Diction- stating Titles,” day and about ary Occupational A. Four tablets a eight day. aspirins perform such hundreds of four to could jobs. Q. prescription Is that four tablets gives Appellant cross- medicine that you? the doctor himself testified on Examiner: examination gave you

“Q. grocery A. Yes. If the man groceries, pounds or a 25 Q. aspirins And about four ? you pound flour, could sack eight. days it’s Four to A. Some carry 2 blocks without it worse. your opinion trouble, in ? Q. damp Is it worse weather— grabs pick up A. I When cold weather? hip. me in each change weather, you can A. A Q. words, you In other don’t think just tell it as well. you carry pounds 2 could Q. you good? pretty sleep Do blocks? No, A. sir. pick up A. I wouldn’t even Q. average many * * * On an how hours pounds. you sleep in That 24 hours. Q. your you Has doctor told day night put is a gether. to- whole good you exercise would be —bending walking? six. A. Not over try any A. He told me not to to do Q. you sleeping Do ever take thing. He me — I him told told tablets ? hurting trying about to work. No, go sleep sir. I all says, A. can supposed He ‘You ain’t * * right. My up. anything arm me wakes *.’ Q. happens your What arm? Q. [your Where does af arthritis] my I turn you A. on left side and that your fect back? most — nerve — and the arthritis will Right my hips A. in between my pinch the nerve in arm and hips (indicating). put sleep will it to from there Q. hips? Your back and low (indicating) down hurts and it Yes, my A. neck. up. so bad it wakes me Q. When did it start? Q. gets words, In other numb it * * * my A. It started in neck your shoulder down? my hips. I went to When my It doesn’t From elbow down. A. Army my hips I when went — in my up. bother me from elbow * * * Army. my dead From down it’s elbow Q. you your Do have arthritis all up. and it wakes me joints more or less? Q. you your doc- How often do see my joints. A. More or less all tor? Q. your Every Where is worse — in A. three weeks.”

back? testimony Mr. In addition to the Floyd application my support my hips. In A. back and benefits, disability repeat that Dr. we Q. pain? Where is the worst Kasselberg appellant’s A. had been L. my (indi- my spine A. In back and attending period physician for a of sev cating). years, first since enteen when Q. your low back? by appellant his arthritis treated A. Yes. administering prescribing “shots” and Q. you taking drugs him, any pain-killing Are con medicine of which during hear time of the kind? even tinued Kasselberg’s during him Dr. ing examination told treatment the careful findings— report appears Myhr, him, filed who based Dr. taken, pages upon rays on only 80-82 X had extenso ante. not which he appel bodily examination but on the only on this Dr. Hoover saw lant. single rays of occasion. He took no X ap- proceed then the cross-exam- back. He did know his neck or We appellant by pellant. findings, impressions, Ex- His or ination of history,” only reports physicians “by and to the or aminer were what Security employed Admin- report Social learned some other Briefly, beginning, it His arth- istration. at the statement. statements that the emphasized spine should that each ritis of lumbar and arthritis Security physicians spine “mild, by his- Social saw the cervical were only tory, relatively asymptomatic,” exam- one occasion for a routine [and] anything hearsay ination. did not constitute but evidence. Beverley Ray, who, appellant Dr. R. stated, Mm, reported: never examined stated Dr. Hoover * * * appellant; he “saw” and his conclusions given “Treatment by has been patient’s subjective symp- were: “This Kasselberg L. A. is seen * * * proportion toms far out of to the ob- every pa- three weeks.

jective findings and I do consider tient was also seen Ted Gal- sufficiently him justify disabled yon, orthopedist an Wal- and Dr. Peter granting Security of Social Benefits.” lace, neurosurgeon. Floyd states Mr. physician apparently This had no knowl- placed that these doctors him a total edge type justified of what disability, company doc- that the * * granting of Social benefits. tor said he could not work. He did not intimate that Supposedly there is numbness able to em- weakness of the hand arm left ployment. spine disc, from a cervical physician employed by Another rather evaluate. difficult Security Administration, staying Social Presently, position for in one Horton, regard Glenn E. stated with or more ex- hour is said to create disability upon real ap which discomfort in the re- treme sulting back with pellant orthopedic relied: “From deep, pain the diffuse and marked standpoint and arthritic Standing I will defer than a to stiffness. for more specialist to the which pain he had in been re few minutes is said to cause taking any to for this.” legs. sciatic-type ferred Without the pain, This not rays appellant’s of any pain X neck or back— is it radiation of nor seeing any rays, area, or such even X to be from but seems the back thighs “There is dispor envelops hips, stated: considerable the apparent subjective the legs between tation with and loxver as that associated patient objec complaints of the muscle tenderness. tenderness Some finding here, especially observed present but here of tive the muscles is any again sleeping further position documentation after I feel in for one ** * orthopedic patient should state consultant time. The does regard priority in this arm that he numbness of the left have first has specialist in primarily of my as a and hand but his areas indication of efforts totally Pulmonary of un- and evaluation decreased sensation were diseases system.” (Emphasis supplied.) Dr. Horton was anatomical.” particular this pulmonary diseases. Lee, specialist Security in the Adminis- Mr. Social Representative, the tration’s employed Claims had physician Another previously reported appellant was Dr. that when Security Administration Social him, who, came Whittemore, after a to see several before months L. Wendell report, appellant’s appellant hands Dr. Hoover’s embodying long history what physicians examined puffed. who slightly Of all the fingers Dr. seemed only one appellant, Dr. was the dis- Hoover reported the veteran’s Hoover also appellant’s stopped motivation to state ability payments of were 60% disability extremely poor. work was fact was the 1950. disability, payments not for discussing were evi- the additional 60% Before stopped they 50%, were not but for submitted on behalf Secre- dence 1950, since ever continued but have tary, Exam- which the reported Hoover also decision, World War II. Dr. re- is to be iner based his developed, nour- appellant well contrary was “well the appellant, marked that ** ished, distress in no acute permitted procedure, not usual chronically ill.” appear who does first witness. the Horton, Dr. another hearing appellant’s of first Instead Administration, reported Security Social disability, testimony appellant: of thin “He somewhat witness, as a swore years.” looks worn somewhat Anderson, never examined had who Dr. months before Dr. Hoover Three only upon rec- appellant, relied “appear ported appellant did not filed physicians had of other ords chronically Myhr ill,” reported of Dr. had reports appellant’s condition with- as to physical appellant: “His examination hearing. testifying An- on the Dr. out him at this time to be a chronical- shows derson, further, heard none of ly appears ill man stated older than testimony Per- appellant, or of age.” employer, Manager appellant’s sonnel therefore, is, report, In his any Hoover appellant’s wife, Dr. or other opposed by reports Nevertheless, Horton testimony Dr. case. Security Administration, encouraged advisor, Social medical Myhr. Examiner, questions from the effectively way in a calculated testified “Examining Dr. Hoover concluded: any receiving appellant block patient the neck reveals to overreact ground benefits * * * light touch. Musculoskele- en- disabled from tal examination did ab- not reveal employ- gaging in substantial normality joints or muscles. ment. quite apparent patient over- concerning gave ex- reacts to quite touch and ac- Dr. Anderson testified Kassel- tive resistance to movement the ex- aminations when However, range berg reports. aminer checked for and his of motion.” apparently, Kassel- never saw Dr. report ended his Hoover berg’s report last of November statement which we have noticed other Administration, Social disability benefit cases which have been not able he stated “was reversed, by reporting: patient’s “The do present I return to at and obviously motivation to work is extreme- if ever be not know he will able ly poor.” This, rays without X type turn to his More- usual work.” his spine, cervical and lumbar and after over, did not Dr. Anderson know single Appellant examination. finally Kasselberg Dr. nothing said Hoover Dr. about work- appellant’s employer came to the con- ing; reported but had to him appellant permanently clusion that was opinions of four doctors that he could totally disabled. work, the fact of his hos- several Kasselberg’s pitalizations, seeing exam- and that he It is true three was Kasselberg every gave during weeks, hospitaliza- three inations the various injections He felt him were different. tablets for arthritis tions somewhat spine at such first lumbar arthritic times. at Q. When medication; gets improved my age ought condition one 5? hospitalization, pretty on the second the cervi- to be ba d —6 radiculitis, and lumbar arthritis and cal .) A. Yes, say sir. peo I would most suffering pain, from which was years ple 65 old have some de gradually traction, physio- improved with gree (Empha of this condition. therapy, preparations, mus- cortisone supplied sis relaxants, cle and there was an excellent Q. Based on Dr. Hoover’s entire re- prognosis improvement; that on the port, you agree inter- hospitalization appellant’s third im- back pretation of that arthritic condi- proved with the administration of Bu- being mild, tion as or not?” Alka, tisolidine lumbosacral quite leading obvious that support, prognosis and that the as to question put was to obtain an answer recovery limited, full but as to the was appellant. unfavorable to The answer future, it seemed to be satis- immediate was: factory. Yes, agree “A. sir I would with his foregoing reports ofAll of Dr. opinion.” Kasselberg optimistic were were witness, course, had never ex- characterized different and additional seeing amined and was him for appellant. But, spite treatment time, testifying. the first while he was hopeful reports of these and after con- Continuing— tinuing various kinds of treatment over “Q. by discogenic does he mean What months, Kasselberg several came to spine, by disease cervical perma- the conclusion that history, relatively asymptomatic? nently totally disabled. explain asymptomatic First Kasselberg’s reports The fact that Dr. me. gradually differed, hospitaliza- from one Asymptomatic A. means without succeeding hospitalizations tion to symptoms. treatments, hopeful prognoses to a Q. words, In other there are no complete final conclusion of symptoms there? seems rather the mark of a conscientious ‘relatively’ A. He uses the word physician trying everything to do within asymptomatic, I think so would professional remedy skill to a dis- symptoms. he meant with few ability, physician who, than of a it is im- plied, findings. Q. discogenic inconsistent What mean does he spine? disease of the cervical The examination of Dr. Anderson discogenic, in other What Examiner follows: ? words “Q. Referring to Dr. Hoover’s state- relating Yes, Any A. sir. disease report ment or of March spaces; to the disc or disc you copy have a of it? is, spaces. the intervertebral disc Yes, sir, A. do. I Q. impression And his third is sur- Q. impression degenerative His gical right upper absence of the spine, arthritis of the lumbar by history asympto- lobe which mild, history, relatively ?matic asymptomatic. What does he Yes, A. sir. by statement, your mean that Q. well, pretty explains That itself opinion ? doesn’t it ? Degenerative A. arthritis type

wear and tear Yes, of arthritis patient A. sir. The had a that we see in right most upper individuals lobe removed some years old years ago or older. believe it was 1957. — I any working day. Q. Apparently are all for that he doesn’t have We your relating wife work? symptoms to that con- Does dition ? No, A. sir. Apparently

A. so. Q. you Do have other income Q. you agree report, do other than this a month ? Based on his $52 that? A. Insurance. Yes, sir.” A. Q. much How is that? emphasized practical It should be A. a month and a month. $43 $51 Hearing

ly questions all Q. companies? From two different Examiner to the witness were based on A. Yes. findings, were, Dr. Hoover’s them Q. words, you In other are receiv selves, hearsay, they based on since re ing including total, retirement “by history ferred to conditions generative ” —“de companies, insurance two spine lumbar arthritis of the approximately a month? $150 history;” “discogenie mild, by disease get pension of You a veteran’s by history;” spine, of the cervical “by get You a retirement $77. by history” means reference to the get pay from insurance You two $52. report views or of someone else. Dr. comp $43 anies— o ne rays appellant’s Hoover took no X cer one Is that correct? $51. spine. vical and lumbar A. Yes.” up The examination of the witness though point sounds as it be- were Hearing appellant After informed the ing attorney opposed conducted he did not Examiner that doctor said claim, availing appellant’s himself of appellant anything and to do want leading hearsay questions and to secure employment he had not been to the of- appellant. answers unfavorable to try work, and find be- fice some testimony The Anderson is try “the cause doctors told me not to others, princi- based on records of anything,” pro- Examiner Hoover, pally those of Dr. does appel- to embarrass and shame ceeded ap- constitute pellant evidence lant. gain- substantial, could “Q. you any light work? Do want activity. ful able, I During A. If I would.” was his examination of Examiner found out that he appellant, contempt Then, show drawing pension was a veteran’s and dis- him: shot at ability pension employer from his permanent disability: and total “Q. you Or had all these rather draw “Q. you I believe did have some sort pensions your get se- social pension curity, lay around the house ? Company you Armour and you Is that what want to dol” drawing or did Is draw. (Emphasis supplied.) that correct? language humiliating Hear-

A. Retirement. judge ing Examiner, if a trial used Q. How did much that amount to jury, considered before would case you receiving and are still that? prejudice of such bias Well, A. it’s a month. $52 mistrial, or a reversal it would warrant Q. you that, Will draw so far as appeal. no excuse you know, long you live? represented From counsel. A. supposed I’m to. indulged language was moment such Q. hope so, you? guess You Hearing Examiner, don’t ob- I McDougil losing hopes you Mr. his ease. do too. vious obligation many years, anas insinuating castigation of these after The above strange, to country. difficult more when It is grateful is all the the witness of a anyone appel understand how could throw of what consider the evidence we up in to his his face insinuate that receiv earnings time he were at the was lant’s ing of un of it could be the mark an hospital his and lost first to the removed day lazy worthy, man, rather live thirty years who would of because of work thirty years on it than suffering. work — after his Appellant'was his arthritic job, heavy of right up labor in a industrial hailed malingerer. to no He worked hospitalized very good employer his as “a em day on June was he ployee,” laboring all this time under year 1964, up to time 1964. For the disability. applied such a And same hospitalization, earned of he had his the slur east him he according to because Company, to the Armour and receiving pension retirement certification, his which earnings $2,701. of a total every entitled, employee of Armour Appellant asked was 06. castigation implied well of his re earning at Examiner how much was ceiving pension employer aft hospitalization don’t the time of his — “I many years labor, er so of just when penny. I exact want want the company for the two Appellant an in round numbers.” know agreed companies concerned insurance hour.” swered : an “$2.60 pension that he is entitled because permanent pain, of his for total and dis hour, appel an On the basis $2.60 ability. day on the basis lant earned $20.80 January eight-hour day. From acting, was day 8, 1964, appellant’s to June effect, judge as a trial as well as a cross- hosp paid, ac italization — he intimidating examiner. “An manner in Secretary’s cording Exhibit No. putting questions may so coerce or dis- “Earnings Certification,” appellant’s concert the witness that his do answers $2,701.06for the sum of five months represent knowledge his actual eight days. ten months sixteen For subject. questions So also days, would have been double his income embarrassment, subject form or cause stated, $5,402.12. For amount anger may shame or in the witness un- year 1964, he entire would have been fairly lead him to such demeanor and paid $6,200. approximately This would impression produced utterance that approximately increase have been an justice his statements does year, $1,400 prior income over his Wigmore his real testimonial value.” $4,800; 1959 his but annual income Evidence, (Third Edition). Section 781 employer from the same had increased $4,200 $4,- six hundred dollars — from remark The above-mentioned Appellant making more 800. much followed Examiner was money had, than he ever at the time evidence, appraising be- statement hospitalized and told doctor him hearing fore was concluded: anymore. not work he must “Q. These X doctors made some soldier As a disabled in active service rays wrong and don’t find much war, right appellant’s to his veteran’s you. is these doctors pension had never been apparently 50% don’t much know by anyone, paid questioned and had been you you about tell not to now, being paid and is him him work.” Kasselberg port, reports improved; a re-

Dr. made his back the sciatic pain appellant completely sult of examination of nerve had dis almost rays although specify appeared; many hypertrophic X did not had he that he ar spine; that he referred to them. thritis of the lumbar that on November 11, 1964, Kasselberg reported Dr. Hearing Examiner’s statement to the Social Administration during appellant him his examination of appellant, being discharged that since that “it is these doctors that don’t know hospital September 6, 1964, from the you you much that tell not to about care; had continued under his that his work,” completely, was unfounded and recovery satisfactory; had not too been discourage during appellant calculated to and that he was to return to work. unable course the examination. The doc Moreover, appellant him tor that told to work at was his McDougil, and I. L. the Personnel Man- tending physician, Kasselberg, who ager appellant’s employer, undis- appellant had known about years, for seventeen puted Kasselberg reported that Dr. that treating and had been him for his appellant would never be able to return arthritis since first knew him. He condition; to work because of his appellant’s during physician ap had been that as a result of a conference between pellant’s many hospitalizations. No one Kasselberg and the giving medical evidence for the Govern Company, company Armour and agreed ment had ever treated him for ar appellant permanently was Kasselberg thritis. Dr. was doc totally disabled, granted and was tor prescribed had ever medication pension permanent for such and total appellant’s pain inflammation, disability. foregoing All of the is the appellant which taking, is still and which Hearing answer Examiner’s no other doctors have one criticized. No Kasselberg statement giving does not evidence, except medical Dr. Kas report a selberg, severe condition and “don’t had appellant during ever seen you.” know much about hospitalizations. of these As to the appel Examiner’s statement rays As the X which during lant the examination that “Dr. emphasized Examiner some of the Gov- Kasselberg report doesn’t even a severe taken, ernment medical witnesses had condition,” report Kasselberg of Dr. appellant’s doctors, while who told him appellant, was 14, 1964, on June “don’t know much about suffering pain in the lumbar and you,” appears report from the of Paul spine upon cervical his admission to the Lee, Representative L. the Claims hospital; cervical and lum Security Commission, Social that when arthritis; bar July 1, appellant was Joseph admitted to St. hospital readmitted to the because Hospital in June at a time when neck; of severe in his back and Kasselberg attending Dr. cian, physi- was his that he traction, physio was treated with only physician who had ex- therapy, preparations, and cortisone up time, amined him rays many to that X relaxants, well as with muscle were taken complete and a series brought of tests was improve about made. considerable ment; that he had cervical and lumbar To the question aforementioned radiculitis; arthritis and Hearing Examiner whether again hospital admitted to the on would “rather pensions draw all these August with his arthritic con get your security lay social growing progressively dition worse— around the house? you Is that what want to radiation both sciatic down ?” and to the statement of the nerves; that with several different kinds that “it is these doc- sup- a lumbo-sacral tors apparently of medication and don’t know much you work,” you any not to tell There is no evidence there is about gainful replied: occupation job appellant substantial putting aas together weigh “carburetors nothing.” I I hurt so bad can’t “A. pounds.” no more than there a few Nor is Hearing Examiner continued: The any any evidence that is substan there “Q. Kasselberg re doesn’t even assembling gainful occupation tial condition, you port a severe flashlights Hearing Examin — which know, doctors other two nothing er himself is to as said “there —they much think there is don’t sembling flashlights.” wrong you. Hearing The continued: Examiner you, A. I I Like tell can’t stand “Q. eggs Why you if couldn’t candle my no I feet time. can’t sit * * * you job had a like that? very long.” you up pick All to do have Hearing answer, To Examiner nothing egg heavier than an again embarrassed and shamed strong light. at look Why it toward a by repeating: you you if couldn’t do that “Q. you go Do to to want back work? job had a like that? Yes, A. sir. say, A. I I I sit could. Like when Q. you long my legs just would these Or pensions rather draw I so burst. stay get at home up ? and walk a little around and it eases. go you, A. I I to As told had rather Candling Q. eggs, you know, you to than work sit around. can either sit or You don’t stand. Q. you Are about that serious ? to sit all the have time. right. A. I than rather work That’s any A. I have never done of that.” (Emphasis sup- sit around.” candling plied.) There is no evidence that eggs constitutes substantial ac- badgering All preparatory of this tivity. necessary plaintiff “It is not urging leading to into witness be bed-ridden come within stat- to saying perform jobs he could that he did provisions. required ute’s Neither she anything concerning about, not know try apples. required to to sell She counselor, any- which no vocational or every possibility to meet remote else, any spec- one testified or described may Finch, conjured up.” Burrell v. ifications therefor. (D.C.Kan.) However, F.Supp. The egg continued: person hold bed-ridden could up strong light, to a and look at it see “Q. you put togeth- Could carburetors cloudy. or whether seemed clear weigh er no more than a candling eggs There is no evidence that pounds few ? person, a bed-ridden or one suffer- right, A. say, That’s but I like Iif ing else, arthritis, by anyone long go hurting. sit too I If gainful activity. constitutes substantial * * * long— I stand too The Examiner continued: Q. you you now, Could sit where are “Q. point pen. There is a That ball flashlights, and assemble in- parts If are or six to it. five stance? You know there is noth- you job putting to- had a ing assembling flashlights. why gether, is reason there long A. For so at a time—I’m si tt you couldn’t do it ? ing my legs here now with A. If I could around.” move hips bursting. following answers were made Q. They going to burst wherever questions asked the Hear- you they? are, aren’t ing Examiner: “I hurt I so bad can’t do got change A. nothing. I’ve around.” The doctor said he didn’t want anything. painful me to do If I I could would came too for him — all of which my supported by I can’t stand on feet *. state unquestioned * * * very long. Lee, no time. I can’t sit ment to Representa Mr. the Claims ** long go hurting. if I sit I too tive of Social Administra legs sitting my tion, I’m Horton, here now and to Dr. the witness be bursting hips got change Appeals Council, reported around. fore the — I’ve * * * long my legs just him, beginning IWhen sit so told at the How, then, single “My burst.” did the of his examination of him: get appellant hips he Examiner to admit ache and hurt all the time. I have something spite change my could do in fore position time, to his all it going testimony, ques just none of which was seems like the bones throb by any my hips my Hoover, tioned medical witness toas his to knees.” also only being while, a Administration, able to stand little said that “this * * * while, keep pain pain and then changing a little sit and seems to be that en sup velops hips, thighs legs about — all of which was and lower ported by Kasselberg, the evidence Dr. that associated with tenderness.” muscle Myhr Appellant’s leg pain and hip others? No one has any testimony appellant’s questioned any cast on doubt in medical evidence. excruciating hips as to the in his way improper a This is too facile and legs. Hearing in Examiner his to that a claimant insinuate proceeded badgering, after his state ac could substantial appellant’s ment didn’t doctors tivity holding ball-point pen a him, by suggesting know much about asking claimant one’s hand and jobs that he could he “could where any he reason couldn’t whether there was put up either or stand sit down” — which was together! parts five small This certainly enough to confuse in person something could also a bedridden answering to jobs, could do he such gainful activity? do. Is assumption, perhaps, that “where it is. There is no evidence that No one up he could either stand or sit down” joba that it was offered testified jobs meant my where “he couldn’t stand gainful employment. substantial ever, How time,” very feet no and “I can’t sit “yes” getting answers from after long.” job only If required person a a ability put light-weight to toas who up down, could either stand or sit together, assembling carburetors flash it would person not be available ato who lights, since, as the Examiner — my could neither “stand on feet no time. stated, nothing assembling to there is * * * very long I can’t sit if I sit candling eggs, flashlights, putting small long, go hurting.” too I to together point pen parts of a ball — the proceeded Hearing Examiner to heavier Nevertheless, appellant was led work: questions Examiner such as: “Why “Q. any you why you there eggs couldn’t Is reason you candle ? If job operate putting a couldn’t parts an point elevator a ball pen together, you where can any why up either stand there reason you sit couldn’t down? you do that? Could assem * * * flashlights ble ? You know there No, A. sir. nothing assembling flashlights,” to Q. You that, could do you? couldn’t and, finally, got Yes, A. sir.” question op whether he couldn’t erate you elevator where can either Appellant experience had no operat- up stand variety or sit down? — and a ing an elevator. None of the work jobs, other taking never into considera had ever done was remotely similar to tion said, because his being operator. an elevator He did pain, he could stand for a brief required. know what Apparently, he time, or anyone, sit for a knew what brief time before it be- including child, a change sitting position non-automatic operating a about stand- knows ing, lying lever, down, presses one relieve himself of elevator — that one another, pain. way go up, constant to make it places go down, it in neu make it always protected A witness must be stop. Appellant position it tral to make “against being badgered or tricked into why he could asked have as well been statements unintended the witness.” locomotive, operate diesel could not People Southack, 39 Cal.2d 248 P. moving requires only lever 2d 12. moving go, make it another lever The court determined has operate brakes, like motions appellant, such statements of as admis- commencing by whistle and bell. But sions, are not to considered as evi- being badgered whether would about dence in this case. get pensions, “rather so draw his appellant’s pain, As testi- own security,” lay cial around the “and mony and statements as to constant work, house” rather than and that was hips legs questioned are not only doctors didn’t much about know by anyone, physicians employed even him, work, him could he told he by Security the Social Administration. leading by questions was induced into When asked saying eggs, he could candle assemble Hearing he could lift Examiner whether flashlights, parts small of a assemble twenty-five pound of flour sack and ball-point pen, operate and, an elevator carry it, replied: pick up, I it he “When finally, cigars putting box, into into * * *." grabs pain hip in each packing shipment, wrapping the box for tors who told him not to work didn’t ment of job, er draw his extracted from ed couldn’t lift questions, calling for the be able to just lay Hearing Examiner had told him the doc crating handle specifications, anyone could be said to fruit in tissue derstand” — “all “ten All Without by being and or appellant, potatoes of objects, twenty it for you carry around the specifications asked whether he would rath ?” — and the conclusions were pensions after questions objects — “You shipment, paper, and pounds.” see, almost him without knowledge Examiner were except heavy things,” he beans, hear, speak, house, putting of for the anything, put could do great doing been humiliat conclusions and after the “move benefits, of it any particular weight. the same in a any job and un leading except about, state that, box, of paining and his wobble as arms.” says November Representative, tis affected him rubbed his * * *. hips. plained neck arthritis] I went to the hips. “Right Appellant’s In In further hips bursting.” the first * * * I’m * * * most between him. hips legs He seemed if [it worse] more or less sitting thighs. 3, 1964, Examiner is wife testified of hurt testimony, hurt after Army. ^[*] * I had it “Report stated legs “his most, here now my hips It if he stands a He Mr. would back uncomfortable and of said * where started his Lee, of appellant: when asked He sitting ** my hips all my give way.” answer was: Contact,” that he com- and the Claims his seemed to my joints. legs back and legs my legs [I arthri- awhile while, when were have “He my him; know much report Horton, about In of Dr. his own the wit- attending years for seventeen ness of the Social Administra- did tion, think he had a Appeals Council, severe before the he re- condition. Appellant badgered “My into statements lated he stated: unintended really hips him that could I ache and hurt all have time. perform change prevented my position duties that his all the time. him performing, my just because he had like the to seems bones throb from taken, rays referring X he had report Dr. my In the hips knees.” ** is work — * “this man unable to regarding appellant, states: Hoover * * * of his because at this time minutes “Standing a few more than causing syndrome disc legs. cervical This pain in the to cause is said any pain and also because him considerable sciatic-type pain, nor is not a this, spine Dr. area, arthritis.” of lumbar Myhr but from the back radiation Kasselberg, appel hips, confirmed envelops the pain that seems attending physician. lant’s legs thighs associated as that lower Hoover tenderness.” with muscle presented difficulties are Great examina- on: “[M]usculoskeletal went many Security cases. review of Social abnormality any did not reveal tion of cases “The review joints Hoover, as or muscles.” Dr. Security Act benefits under the Social rays mentioned, did took no X or above aspects. many The is onerous rays ap- any X musculoskeletal he see case before at- pellant. “When He further stated: informally. This means heard leg the back and tention is directed to practically no there is examination gives quite obviously areas, patient witnesses, cross-examination raising straight leg responses in false usually himself, except the claimant Hip examination.” How- Patrick ever, tests hard one of man whose life has been representing Whittemore, also and, education; labor, and with little Security Administration, re- the Social sometimes, Counselor. a Vocational back, “Concerning ported : the lower record, part, consists for the most degree degenerative joint there is some statements letters and written mildly His disease which is advanced. claimed, garding the ex- the pain appears localized lumbarsacral the Many it, of of tent or the lack it. of * * spine area *. Lumbar of official consist these statements degenerative reaction, mild L-2- shows applications and re- printed of forms however, Interspaces, 3-4. are well handwriting in, of ports filled the Ray, however, maintained.” Dr. after repro- individuals; their and various stating spaces that the lumbar are well requires often record duction the preserved, very reported: “There is decipherment. records These laborious slight narrowing in- of the third lumbar investigation by searching call for terspace, narrowing of the first and some searching courts, and further district interspace hypertroph- lumbar mild investigation by appellate courts.” diag- changes thereabouts,” ic Celebrezze, F.2d Miracle v. arthritis, “hypertrophic nosis lum- (C.A.6) regions, bar mild.” duty to ex- of courts “[I]t regard findings With to the of the So- evidence, meticulously no amine Security physician, cial Administration is, duty how burdensome matter in certain tests did not of nature of the helter-skelter because complain pain expected of from his claim- cases, not in these the records condition, ed disabled none of them took way disposing of adopt of facile every into account the fact that three injured applicant’s refer- case an weeks, injections Dr. received from upon, to, the state- reliance ence taking Kasselberg; and that he was physicians, as of one or two ments pain-killing day, prescrib- four a tablets of against statements the considered Kasselberg, ed Dr. as well as four surgeons many physicians who eight aspirins day. opportunity examin- have had more treating applicant, more ing Myhr, mentioned, Dr. as above whose making reports medical presented Appeals occasions evidence was to the diag- him, upon expertness more Council after Examinér’s recounting nosis, consideration as decision, reported as well after transcript physical reflected in the appellant and the facts examination ** Gardner, appellant: “I Mefford do not whole.” consider him (C.A.6). disabled.” The actual Ray Dr. F.2d statement of “I do not consider him suffi- was: involving disability cases would be These ciently justify granting disabled to if Examiners easier review Security of Social did not benefits.” He Security Ad- and counsel the Social pretend justify to state what would more in their ministration were accurate granting benefits, Social regarding aspects of crucial statements engag- that ing was disabled from the evidence. gainful activity. in substantial appellee brief, In their counsel for emphasized Here it should be states: during hearing before the hearing de- “After the examiner’s Examiner, appellant was an uneducated cision, requested claimant review be- man, represented by coun- support Appeals In fore Council. According evidence, sel. stated thereof, report from a he submitted a Kasselberg Dr. told him he could Clinic, Myhr, Dr. Lamb B. Jackson repeated not work more after his Jackson, report Tennessee. The hospitalizations June, Appellant 1964. spondylosis vealed existence of according stated, also had to the Govern- spine, and, although no clinical witness, Hoover, ment Ted that Dr. findings out, conclud- were set it also Galyon, orthopedist, Peter and Dr. suffering ed claimant from Wallace, neuro-surgeon, “said he could pulmonary emphysema.” addition, appeared, work.” misleading. entirely The above is No mentioned, above from the evidence of findings clinical were set out because Manager Personnel of Armour Myhr’s report pulmonary em- appellant’s Company, employer, physema was stated to taken from Kasselberg had held a consultation with history The some other doctor. employer, the they Myhr reported: fact is actual that Dr. agreed company both that the should “Pulmonary emphysema fibrosis grant appellant permanent dis- and total history.” (Emphasis supplied.) ability benefits because his arthritic “history” was from Dr. Hoover’s agreed condition, conclusion a which was report for Security the Social Adminis- company to involved, and insurers the the two taking rays appellant’s tration after X the result that chest, in which Dr. stated: Hoover granted pension permanent a for was “There are areas of increased linear disability. and total markings and strand densities the Although Hearing the called Examiner right lung right mid-lung lower and Anderson, a Dr. witness adverse to claim- suggestive emphysema- field of some only ant, to the adverse testified as * * * changes. Interpretation: tous Security Admin- opinions the Social of physicians Minimal emphysematous localized appellant’s opposing istration changes right in the and middle lower claim, Examiner never called the lobes, otherwise normal Chest X- PA Wallace, Galyon, Kasselberg, Dr. Ray.” appellant’s employer, or the pointed It should be out that Dr. Horton disregarded everything they and said and rays appellant’s also took X chest but concerning appellant’s disabil- concluded ity, reported any emphyse- no evidence of interrogating them. ever without changes, resulting matous in the fact go the out of Examiner to For a there dissimilarity in the re- testify, way a medical witness to to call ports of the two Social Adminis- ap- merely give opinion adverse to an physicians X-ray tration an who made solely pellant, other on the basis of appellant’s examination of chest. by physicians ports adverse Moreover, Hearing Examiner, call appellee, the never to and the decision, Ray reported said con- physicians stated and 100 permanently Cohen, F.Supp. In 949 Stewart v. 309 eluded Judge disabled, (E.D.N.Y.1970), Judd, opin- passing totally in his seems and ap- ion,

strange a declared: procedure in case which represented pellant counsel. was not “It is still Se- true that Social curity statute, Act is a remedial to be strange proce- only passing is it Not broadly liberally ap- considered and rep- applicant dure, is not an but where Finch, plied. F.2d 418 Haberman v. counsel, duty devolves resented * * * (C.A.2). 664 scrupulously appears with “When individual into, conscientiously inquire probe and hearing attorney, out an examiner of, facts explore relevant for all the umpire, duty a mere has not to be right alleged surrounding claim are facts but see all relevant and, such a where privilege, case Coyle Gardner, F. developed. v. 298 questioned more applicant should Hennig (D.Hawaii 1969); Supp. 609 concerning thoroughly arthritic con- (N. Gardner, F.Supp. 625 v. dition, comprehensive medical more 1967) (treating ex failure to D.Texas Examiner, his to the available evidence is plore adequately an abuse facts adequately explore the facts failure to discretion)”. surrounding applicant’s claim is an abuse Hennig Gardner, 276 foregoing cases, of discretion. (N.D.Texas, (1967) F.Supp. Dallas explore adequately to failure Examiner’s Division).3 surrounding appellant’s claim the facts Hennig case, Judge tension, anxiety 3. In William M. fear and are ous Taylor attending said: circumstances some of the may render a which concur to claimant’s hearings under “Administrative inept. presentation of his cause adversary Security Act Social case, proceedings. Celebrezze, Hennig Mrs. instant Ihnen “In the middle-aged D.S.D., 1963, F.Supp. 157; woman with a Blans- to be seen Ribicoff, W.D.Ark., 1962, grade Her cet v. ninth education. husband spent F.Supp. representation She a construction-laborer. working years part requisite greater of her as a counsel is not a to insure ulti- operator possessed proceedings. sewing mate ever, in the How- machine fairness sewing. proceedings other than rec- no talents administrative inability amply rights pre- privileges reflects her ord are in issue guiding herself and her cause. sent both As a hand of counsel is not result, present existence, the evidence nebulous in- to advocate their period duty hearing complete between De- on the examiner devolves March, cember, scrupulously conscientiously 1964. More comprehensive probe into, inquire of, explore medical examiner; surrounding he has the available all the relevant facts subpoenas. Hennig power alleged right privilege. to issue Mrs. The claim of questioned have been more hearing should oughly thor- a examiner entrusted by concerning the examiner her in the conduct of the broad discretion condition, thereby fully hearing more arthritic administrative a failure of portraying the of her hearing produce airing facts contentions. of to a full the may in issue well be attributed the facts reasons “For these failure the of the to an of abuse that discretion. adequately explore to the examiner surrounding facts Hennig’s Mrs. by Judge claim was an in Butler “As stated Brown examiner, The supra of his discretion. Flemming, Cir., abuse v. F.2d [5 288 employee although gov- of the federal 591], of the claimant’s ‘satisfaction ernment, position does not a statutory judged hold obligation of in to partisanship. If the facts practical way.’ which would F.2d at 595. 288 the to overriding claimant relief are entitle certainly, ascer- Most one tainable, duty the examiner has judgment practical to in this considerations out, notwithstanding them present seek ability is the of the claimant to failure on claimant’s his own initiative in- his case the examiner. Some so; justice gift to do interests of possess so dividuals do require.” self-expression persuasion. Nerv-

101 legal discretion, standard in an the correct resulted appellant abuse of when evident that counsel, by Ex employed was without has been Gardner, only alleged by Colegate F. developed 265 Exam- facts aminer. v. W.D.); (1967) (S.D.Ohio, Supp. ad- iner were conclusions of witnesses 987 claim, appellant Flemming, him- F.2d 882 verse to his 283 while Henderson v. subjected rigorous (C.A.5). self was cross- Examiner in

examination a man- 614, Gardner, F.2d In Branham v. appellant, ner to embarrass and shame (C.A.6), said: this court telling him that while his own doctor governing has these cases rule “The him, knew little doctors about clearly in Ferran forth been set knew, really considered there was (C.A.5), Flemming, 293 F.2d nothing the matter him. stated: where the court appellant are of the We view es “ ordinarily, course, ‘Our review prima perma tablished case of facie determining merely limited disability by nent and total evidence there is substantial whether proved he could not find support administrative gainful activity. in substantial Such ings. just here, in “clear But prima disability proved by the facie judge’s ly of a erroneous” review reports Kasselberg his state findings, has when the fact-finder ment that would never be able proper legal employ the failed to return to work because of his back con making determina in its standard dition. For the basis of conclusion this may finding not stand. tion the treating experience appel he had the Lines, 5 Truck Mitchell Mitchell years, specifically, lant for seventeen 721; Cir., 1961, Henderson 286 F.2d pains. Ap cervical and lumbar arthritic Cir., Flemming, 5 Poole v. pellant many rays X taken in the 882; v. Wil United States 283 F.2d hospital, Lee, Mr. Paul L. the Claims 512; liamson, Cir., 1958, 255 F.2d Representative Ad the Social Cir., Raines, 1956, 238 Mitchell v. ministration, complete stated. He had a must be evalu F.2d 186. facts tests; Kasselberg round of and Dr. ated the administrator seen, examined, one who had legal correct standards during eight treated different findings entitle the administrative spitalizations Joseph ho in St. — all the substantial the insulation Hospital. Kasselberg appel treated sup (Emphasis evidence test.’ drugs pill lant with “shots” and form plied.)” pain, for his arthritic as well as with case, deciding place, In the first drugs. Moreover, anti-inflammatous may claimant the court said “while testimony there was the engaging physical suffer some while support of his inwife of his claim. ** known that it is well activities application We come then to the trades, engage many many people busi- pain adopted standard for suffering professions nesses and while Hearing Examiner, as well as dif- pain.” In two more or less constant Appeals Council and the district places opinion, ferent court, findings and we hold that the fact relied to and Examiner referred Hearing unaccept- of the Examiner are States, Theberge 87 United the case of v. erroneous, they able and since based are (C.A.2). F.2d 697 legal on incorrect standards. supra, Theberge States, In v. United Running through concept the whole of the court stated: respect the substantial evidence test in reviewing findings Secretary may “A man have to endure discom- regard security totally pain dis- as be social matters fort or and not principal thread, abled; of life much the the idea that fact of best * findings disabilities; acceptable only goes *. it is where on under such 102 “ ‘ “ ‘Granting to the insured claimant

The work available hurt, pain, experienced sub- it must has some the fact must do more than malady.” stantially aggravate that an individual is to work unable ability. standard used 947 court Theberge, and stated: this court on This it would aminers are resolved to decide these cases, involving pain, rectly contrary to the credited, court and the cases. 972, the consideration “This rule has (C.A.6), law which aminer based his decision ed out “As an instance, in the case of refused to Theberge primary reversible error 2d 361 cases. The ditional erroneous that we would not follow it. case Welfare and which advantage basis of the Secretary suffering a lifetime of stone appeal quence, Examiner, Gardner, Secretary, Sayers quoted “ ‘On “ ‘“ “This case starts out with a “ ‘In 973 many ‘Furthermore, federal decision, (C.A.2) (Emphasis supplied.) appear (C.A.6), in these is (C.A.6), Miracle v. an incorrect and have countless v. decided of these the above taken, v. United has been of a which was many courts in these Gardner, so consider decision Health, * * judgment relied hard labor. court, been many poverty-stricken this court said: this court held: authority states: disability cases, July 14, other Hearing occasions, of expressly Celebrezze, conception repeatedly *. decisions of specifically incurred States, language constitutes pain in the reversal Education and 380 F.2d 364 F.2d occasions adopted by Examiner, adjudications Hearing grounds to the dis- 1967, erroneous on an disability as or conse- Theberge we declared benefit during a dis- point- which Polly * * have F.2d man 940, key- 969, this this Ex- dis- Ex- ad- di- F. to the insured must do ity. work of life abilities. The totally does not Hand hurt, Butler v. many without endure discomfort or ady,” Cir.] much them nounced in Booker and Kerner 595 that it will not follow the ^[*] concerning acted for ernment’s ferent vere, true Theberge speaking for the statements D.C.W.D.Ark., 1958, on under such man osition that “substantially aggravate[s] his mal- does But F.2d States, Cir., 1937, stantial that if a curity legislation is to ameliorate some poses. Congress der “ ‘ “ “ ‘ malady.” holding great (C.A.5), In may “This court has 697, it must “more 87 F.2d others is not 87 F.2d ^[*] stated: ‘If, era, disabled; Theberge and not be contrary gainful activity justify purpose some person these a different but v. United pain have to endure discomfort Flemming, brief, as history are to stand for Judge pain, ^[*] and notable like goes ’ than hurt” so substantially in which best disabling at that, suggested different “A disabilities; pain 697, Theberge only work available rigors page 698, them. Hallard v. has in effect court, to the standard v. engage on under no matter finding much man ^[*] work of unable rather, we follow teaches Learned 87 F.2d United States [2 States, 2 totally and discomfort much social Judge pain repeatedly held policy in 288 Judge may said: Perhaps unless work of in which ^[*] in the Gov- statute in decision more than of disabil- except un- holding in we aggravate F.2d disabled; such dis- life Fleming, the best any Learned life F.Supp. have how se- Cir., Brown, Hand’s regard United stated ^[*] prop- goes sub- 591, dif- im- an- en- “A se- 87 *, it

103 the taking some of might employable, into intended to ameliorate rigors be Page imposes. age, training, v. Cele- that life work consideration (C.A.5) brezze, F.2d 757 physical mental 311 experience and to be capacities, be deemed he shall Celebrezze, D.C., 240 “In Drafts v. purposes this for the disabled 538, F.Supp. 535, said: the court ’ (Emphasis supplied.) Act.” “ aside as a sub- 'Pain was brushed Cir., Celebrezze, Henninger 6 “In v. non-entity. jective Well reasoned 808, that held court this 349 F.2d opinions purposes of and the obvious The- in the rule it berge not follow would great compel consider- the Act that States, Cir., F.2d 87 2 v. United that merciless ation entity accorded to be Hearing Exam- pain, the which “pain.” The fact called case, would in but iner this followed extraordinary can some individuals opinion of the notable rather Judge follow unflinchingly perform bear it and Flemming, in v. Butler Brown is mean heroics does not that such (C.A.5). 288 F.2d 595 is not the The criterion “standard.” Celebrezze, Massey F.2d “In 345 ordinary even standard the the again repeated (C.A.6), this court 146 average man; man stand- or the the case, Theberge standard in the the him- ard self, the individual claimant is Examiner, Hearing relied personal all his assets case, contrary in the instant liabilities.’ resulting disability proper standard of case, “The this Examiner pain, based and that decision affirmed whose decision was error. thereon resulted reversible Court, Appeals Counciland District foregoing keep- All of ing cases are in guilty hold-, error in of reversible federal with the authorities enough ing pain, itself, was not adjudications. in like courts disabling impairment, constitute under, person except “If a unable is pain suf- which great pain to hurt, fered do more than must gainful activity might be in which he disabling, must order to be considered taking employable, into consideration aggravate malady. substantially age, experience training, holding, which, we have This as physical capacities, ishe and mental marked, has been held to be reversible purposes deemed disabled for many error is so of the decided cases Security Social Smith Cele Act. during past several court brezze, (D.C.N.C.). F.Supp. years, always appears in the decisions unaccompanied by any Even ob involving Examiners jectively symptoms, which observable disabling; pain which is claimed to be nevertheless real to sufferer and, have asked since we never been sup disabling, so intense as will be Secretary repeated our overrule port disability a claim for benefits. subject, the reason decisions on (C.A. Celebrezze, Ber v. F.2d 293 holdings speculation. such eludes our 2). The fact that there is a sub such pile thing All kind that this does jective symptom pain of claimant up that, records, appeal, tremendous security for social does not benefits spite error, be reversible must type mean disability. ranks as a lesser meticulously by already over- examined Ribicoff, Blanscet v. just burdened courts to ensure (D.C.Ark.). F.Supp. The motion legal applicant’s determination endured, pain, must rights.” (Emphasis supplied.) overpowering, no how matter severe or disabling Moreover, is not unless it will substan

tially aggravate holding condition, con in error in term “disa- that the trary or, bility” strictly provisions to law under construed must be being very stated, Act con- Social were he “construed as 104 * * * ming Cir., Booker, hear- and the 5 283 F.2d 321] clear to v. servative. Congress ing Flemming, Cir., 2 283 intended Kerner v. [Kerner examiner many them”; pro- up F.2d like set establish conservative and 916] others gram disability it when for benefits and held that Hallard was erroneous as disability

passed provisions authority; court, of the an this as hereto- Act, many noted, holding have sustained this fore in Butler courts followed Among Flemming, supra. construction of Act.” the cas- v. Hearing es cited for the Examiner Gardner, As held in Flake v. 399 Theberge proposition above v. United though (C.A.9), F.2d the find- 532 even States, already supra, dis- which we have ings Secretary supported Flemming, cussed, Adams 276 F.2d v. evidence, the decision should Fleming, (C.A.2), 901 and Hallard v. 167 legal proper be set if standards aside (W.D.Ark.). F.Supp. 205 weighing applied were not in the evi- regard Flemming, making v. With to Adams dence and the decision. supra, Hearing Examiner, cited findings Inasmuch as the of the Ad- Hayes Celebrezze, in court v. F. 311 security ministrator in social cases car- 648, 651, (C.A.5), 2d 652 said: ry weight, it awesome is essential Secretary persists legal proper “The in the notion employed standards be in the painful appraisal that no matter how in fact this v. evidence. Dodsworth be, satisfy Celebrezze, it (C.A.5). must does not the statute 349 F.2d 312 Sup- since this is one of life’s burdens. using In the standard of set forth porting lays this the stress on the brief Theberge in States, supra, v. United Flemming, from words Adams v. 2 assuming many people must Cir., 1960, 901, 904, 276 F.2d that ‘Ju- many trades, in businesses, profes- dicial notice fact can be taken of the suffering sions while more or less con- ** undoubtedly *. There are pain, precluded right stant or be from the suffering daily people millions disability to receive benefits, the Hear- * ** infirmity; some those whose ing prejudice Examiner erred to the symptoms arthritic rheumatic important aspect in this most * * * up subside; flare the case. spinal those who suffer various Examiner erred further Respond- ailments and discomforts.’ employing legal the erroneous stand- ing argument, ato like Court ard in his Act construction of the relat- Flemming, Cir., 1961, Butler v. 5 ing disability, by holding that the term 591, plainest F.2d in the of terms “disability” very has been construed as rejected legisla- keeping as out of ‘ conservative, “Congress * * * and that intend- purpose tion whose up ed to set establish a conservative rigors is to ameliorate of these some program benefits.” Ob- imposes,’ life ex- the ideas once viously, Examiner used the pressed by Judge Theberge Hand in very term “construed as conservative” as States, Cir., 1937, United 87 F.2d “strictly construed,” equivalent op- as 697, 698.” posed being liberally construed. supra, Fleming, Hallard v. also cit- construed, ed support liberally The Act to be findings, strictly conservatively of his followed, ap- con- this court and not as pears above, the notable As far stated decision in But- strued. back 1953 was Flemming, ler (C.A.5), F.2d and Public C.J.S. Social Judge Brown, speaking the Welfare the “act was 3 and §§ court, referring case, adopted public policy pursuant un- to the Hallard designed law, likened it announcement known to common same Theberge, protection society, rule declared in and stat- and enacted regard large ed contrary that “we them rest on alleviate burdens which the standard population announced because Booker numbers [Flem-

105 “ ** ‘Although are not *. the courts life modern of insecurities ** * interpret Act so Act, being the Social remedial reasonably broadly equate unem it with liberally as to scope, should be compensation, v. objec ployment Celebrezze effectuate its as to so construed 417, construing Sutton, Cir., 422 F.2d 8 338 ll doubt *. [A] tives ** Celebrezze, coverage (1964); 247 Richard favor v. should the act 183, F.Supp. (D.Minn.1965), the 185 exemption.” than rather construed to be Act is nevertheless 974, Gardner, 969, Polly F.2d In v. 364 Cir., Bradey liberally, Ribicoff, 4 v. (C.A.6) court this said: 975 (1962), 370 cert. den. 298 F.2d 855 case, objective the “In of the 1601, 951, 8 L.Ed.2d 82 S.Ct. U.S. Secretary appears to secure a to be den., nom. (1962), sub cert. 817 liberal, strict, opposed construc- Celebrezze, 372 U.S. Heath et al. v. Security Act tion the with Social 938, 945, 970 L.Ed.2d 83 9 S.Ct. gard disability fact, benefits. Cir., (1963); Bolas, v. 8 Celebrezze decision, the 498, (1963); Rodri 500 316 F.2d Congress stated that ‘we conclude Cir., guez F.2d Celebrezze, 1 349 v. intended a strict construction Secretary 494; De Gracia v. disability provisions This of the act.’ Welfare, Health, 248 Education and contrary is to our the statute view (Em (D.P.R.1966).’ F.Supp. 522 liberally in favor should be construed supplied.)” phasis disability; support- and this is view ed numerous authorities. F.Supp. Celebrezze, 253 “In Amick v. Dalton, Judge * * * * * * 192, (D.C.S.C.1966), 195 “ reversing the of the Secre- decision purposes ‘The Act broad tary remanding di- the case require a liberal construction in fa disability benefits rections to allow vor if reason same applicant, said: ably Bagwell made out. Cele v. (W.D.S.C. brezze, F.Supp. 232 989 “ ‘It the claimant is evident 1964). rath The intent is inclusion helpless completely or need not be er than Miles v. Cele exclusion. purview to fall bedridden within brezze, F.Supp. 233 770-771 Likewise, need of the Act. she (W.D.S.C.1964).’ (Emphasis sup go oc- list of conceivable all down

plied.) negate verbally her cupations op- capacity or her each of them for Gardner, F.Supp. “In Smith v. 251 “Any portunity employment. Judge (M.D.N.C.1966), 268 Gor- gainful activity” tois be don, reversing the decision of what reason- read in the Secretary remanding case not what is conceivable. able and benefits, grant disability directions supra Celebrezze, [331 v. Thomas said: 1964)]; (4th F.2d Jarvis 541 Cir. “ ‘Thus, evidence, the medical (6th Ribicoff, Cir. F.2d 707 subjective disability, evidence of lines, 1963). Along these same corroborating plain- evidence of the prejudiced plaintiff reason is not spouse, history tiff’s has taken fact she plaintiff, and the furnished selling apples pencils on a street employer her all show nemine “It is no answer corner. plaintiff contradicente may theoretically cap- claimant unable to in a substantial performing some one of able activity. Considering jobs ‘non-physical, observational’ evidence whereon would have cover- in an contained exhaustive list possible been for the Exam- utterly ing places and circumstances iner to have based decision— ’ Thom- her situation.” there irrelevant is none. engage in capacity” to Celebrezze, supra, F.2d at has the “residual as v. gainful activity. any substantial 546.” Evidence, by the recited in Walston Speaking the court re (C.A.6), Examiner, “has Gardner, F.2d moving about, capacity han sidual Judge “The Social Secur- declared: Cecil speak dling objects, hearing, seeing, and seeking nature, ity remedial in Act is ing, understanding, rea as as well medi- provide those who assistance soning” appellant that no evidence employment, is cally secure unable to — is gainful engage em in could substantial liberally.” to be construed ployment. Celebrezze, 233 v. in Miles As stated Hearing Ex- laws, It is to be noted that the 770, (W.D.S.C.), F.Supp. may in “It be aminer his decision stated: Security Act, “intend such as the Social carry that claimant has not able been exclu- purpose inclusion rather than manner,” one, in on his usual work his usual question a close is sion.” Where recognized and that is that claim- liberally “[i]t in construed should be doubt difficulty result of the ant has some as a security claimant. favor of the social * * (Empha- impairments; noted Board, 128 F.2d Carroll Social supplied.) sis (C.A.7). hearing On the Exam- Concerning appellant’s disability, the iner stated: acknowledged: Hearing Examirier my get responsibility is “[I]t may “It that claimant has not been be things. help roots of these If I can carry in his able to on his usual work you sympathetic you, I I am will. with manner, it not es- usual but has been slight you and I notice some do have that he has tablished the evidence your in folks tremors hand but lots of engage any in substan- been unable to Parkinson’s disease and light gainful activity, particularly tial Browning law; practicing Governor is sedentary The evidence work. hearing and he in was before me a — I has seems to that claimant still show you don’t whether know know Gover about, moving capacity the residual Browning you nor or not I am but sure handling objects, hearing, seeing, and very do — he is still active and he has understanding speaking, as well as he Parkinson’s so bad I don’t how see reasoning, that indicate would engage many sign can his name active.” but he is still claimant in nor- may is able to foregoing suggests, The even de- Perhaps mal activities. claimant Browning clares, engaging that Governor was an physical suffer some in while extraordinary being activities; individual in active (Emphasis sup- in his work even case of Park- plied.) with bad inson’s disease. This an erroneous and is holding that ‘‘it has not been estab- prejudicial judge standard which to lished evidence he is unable appellant. engage any gainful in substantial ac- The to mind tivity,” ap- above calls the memorable the burden is not Judge Hemphill pellant statement of in Drafts that, though to establish even Celebrezze, F.Supp. carry work, cannot on his usual he can which he said: engage nevertheless some substantial gainful activity. “Pain was brushed aside as sub- jective nonentity. opin- Well reasoned showing The burden of purposes ions and the engage obvious gainful can in some substantial great compel Act activity be Secretary; consideration appellee entity accorded to that merciless called there is no burden on to show ‘pain’. The that some extra-ordi- engage he is unable substantial fact nary per- individuals gainful can bear finding activity; and is no there unflinchingly does not mean the shows form applicant an states that cause ‘standard’. is the such heroics security benefits for social standard is not even criterion man; suffering impairment that average from ordinary man or engaging in precludes him substan claimant individual is the the standard employment, and personal assets tial himself, all work, do some should be able and liabilities.” he can evidence that opinion that the areWe gainful activity when in substantial error: reversible committed light other of evidence of viewed States, Theberge (1) using v. United continuously treated doctors who supra, disabil- to evaluate a standard contrary; applicant and testified to ity resulting (2) that it was pain; in the of facts reflected Security Act to hold that the Social error whole; transcript the evidence strictly instead construed should treating physician such a who has been of coverage; liberally construed to effect many years applicant and whose over foregoing de- (3) errors the and that totally incapaci is is that conclusion he disability prived benefits appellant his of tated, com is substantial evidence as Act, of reversal and calls for under the physicians pared the of evidence with judgment thereupon. based the one the have claimant on who examined come, the then, of the evaluation We occasion, reports incon are and whose evi- the medical evidence in case. unquali of not clusive and contradictions Kasselberg appel- of was that dence Dr. totally and claimant is fied that work; evi- lant could not return permanently Branham Gard disabled. v. Manager appel- of dence of the Personnel ner, (C.A.6) F.2d 383 614 Kasselberg employer that Dr. lant’s Hearing Also, Ex- aof a determination agreed employer’sphysician and the both physi- of the evidence a on aminer based appellant permanently total- that ly disabled, single examination, making con- a as cian together employer, evidence of trasted with agreed companies, with its two insurance treating had claimant over been appellant to, and was entitled that years, be sustained period of would granted permanent to- pension Teague Gard- evidence. Myhr disability. tal The evidence of Dr. 43, ner, F.Supp. (E.D.Tenn.N.D.), 48 281 appellant to work was that was unable Celebrezze, 379 F.2d Miracle v. syndrome of his because cervical disc Gardner, (C.A.6), 382 F.2d Combs pain, him that caused considerable neck Gardner, (C.A.6), F.2d Colwellv. spine his lumbar arthritis. because of (C.A.6). years Thirty before, appellant had been Hearing hearing granted Exam- disability On the arthritis 20% Dr. addressing iner, about disability a witness “on nerves” the Veter- in 30% “Mr. appellant, Ray’s report, that It common stated an’s Administration. Ray knowledge Floyd didn’t examine person that dis- said Dr. that once a has the Ray did ability Dr. arthritis, that as him.” No one knows it becomes worse says report grows appellant. His ex- one At the time examine older. Examiner, Exam- patient at he [the amination before the appellant “saw Ordinarily, a re- grown thirty request.” such iner’s] more than accepted language years be port in would than such older when arthritis was Ray ex- disability by Dr. detected and ruled a statement appel- but, appellant; in view of Administration, service- amined Veteran’s Hearing Examin- connected, statement to lant's after World War II. er, that clear. is not against testimony appellant’s As own Ray assuming did attending However, Dr. wife, physi- and that of his Hear- appellant behalf years, on examine ing Examiner, cian seventeen we examine Ray occasion, Secretary. First, Dr. one medical evidence narrowing in- reports lumbar merely to be borne in mind that be- changes say. appellant experience pain, hypertrophic If does terspaces mild with Ray may believe, thereabouts, defi- Ex- there was a Dr. as the does, according Theberge narrowing the cervical aminer of several of nite changes case, hypertrophic must discom- interspaces endure disabled; totally anteriorly posteriorly about fort and both narrowing than interspaces. is the and this work “must do more these hurt, aggravate substantially spaces that it must and cervical lumbar malady.” arthritis, Theberge States, and it is su- v. United the usual result narrowing pra. wrong interspaces repeatedly That is and has these Ray pain. reported hyper- been held to appraisal Dr. constitute reversible error causes changes region disability trophic the lumbar Dr. cases. “mild,” Ray which, states, and disco- further “I do not con- stated that: genic degeneration sufficiently justify him of the mid-cervical sider disabled to changes. granting region hypertrophic Bene- with old of Social Ray Ray’s Further, reports report ap- fits.” Nowhere in back, changes pears any suggestion of had arthritic evidence or evi- his low “minimal,” “degenera- which were dence that can sub- changes gainful activity. Nothing tive disc in the stantial Ray’s mid-cervical gion changes hypertrophic report justifies appel- about the denial to interspaces.” lant of benefits. report, report As to Dr. Hoover’s his Here are all the conditions arthritic rays appel- that discloses he took no X of appellant

which claims he suffers spine, lant’s cervical or lumbar that Ray’s in spine. his neck and lumbar Dr. opinion hearsay “history,” his is or based evidence that he not does suffer on the views of named: someone else not changes from them is that the arthritic in spine the lumbar are mild and that “(1) Degenerative arthritis of changes the arthritic de- caused spine, mild, by history, lumbar generation spine of the mid-cervical are relatively asymptomatic. Ray not mild, stated to be but “old.” Dr. “(2) Diseogenic disease of the cervical also stated there is no of evidence rheu- relatively spine, by history, arthritis, matoid and no of evidence asymptomatic.” compression” “nerve root in either the or neck the low back. No one ever claimed report, Dr. Hoover concludes this any there was evidence of rheumatoid value, can be of considered no re- arthritis, so, compression,” or “nerve root gard appellant’s condition, by to arthritic goes, as far as that this evidence is undis- stating: patient’s “This motivation to puted. point appellant is: Does suf- obviously extremely poor.” work is How pain? fer constant question This is a possibly pass could Dr. Hoover such a that, spite appellant’s of to judgment appellant report when his the tally permanently effect that he is to- anything shows that he never asked him pain, disabled Ray such Dr. does work, except about his as to three doc- only: answer. He pa- states “This “placed tors who had ability, him on a total dis- subjective symptoms tient’s out far company and that the said doctor proportion of objective findings.” he could not work.” nothing. Appellant This tells us testifies appellant At any no time did display that he pain; Ray suffers constant Dr. motivation not to work to or work. Dr. says symptoms pain these of are far out nothing him, Hoover during except knew about proportion appearance appel- single this examination. spine, lant’s diagnosis and that his remarkably arthritis In a spine pertinent the lumbar is succinct and “mild,” opinion, Judge while the arthritis of the cervical Chief Solomon of spine is appellant “old.” United Does States suffer District Dis- Court for the great pain Ray trict Oregon, case, constant ? Dr. in a doesn’t similar Huff- ap- that did not find Gardner, F.Supp. Dr. Whittemore man pellant’s was extreme- motivation to work said: any degree; ly did poor poor in nor Secretary’s no merit “There * subjective any report way that the he the claimant assertion symptoms proportion to the out of were Conclusional motivation. lacked findings. told objective Dr. Whittemore worker a social in a letter marks appellant’s described emo- ‘difficult has the claimant casting any himto without doubts motiva- ‘lack of problems’ tional en- appellant’s claim. Dr. Whittemore’s support the insufficient tion’ are pages 80 and forth on tire evidence is set findings, Secretary’s particularly when 82 ante. by support- accompanied they are not ing information.” Whittemore, occasion on the one supporting information There was no then, reports, appellant, on which he saw made possessed when Dr. Hoover pain from differ- suffers “appel- remark that conclusional movements; degenerative ent joint obviously to work is motivation lant’s extremely poor.” spine ad- in his disease cervical did Dr. Hoover old; “a amount certain vanced appellant’s motiva- about know more that, valid,” vulnerability to stress is work, about he knows than tion to degree of de- back there is a lower this writer work of the motivation to mildly generative joint disease which yet, opinion. And statement appears lo- advanced and that “[h]is * appellant’s “motivation Hoover about calized the lumbosacral area extremely obviously poor” [being] final Whittemore’s statement extent, Hear- impressed, a marked opinion should ing in his decision stated Examiner who objects, about, able to move handle toas has been raised the “doubt requiring perform sustained activities go back is motivated whether light a that But the mere fact exertion. work, is doubt worth considera- and this mobile, disability for benefits is claimant supplied.) (Emphasis There was tion.” light engage in tasks in able some supporting to this conclu- information no home, he that does not alone establish possessed by Hoover Dr. sional remark gainful engage in is able to in the mind this doubt when raised recovery precluding employment bene is without Examiner. the F.Supp. Flemming, 192 fits. Randall basis; for the Hear- evidential (D.C.Mich.) 111 ing this doubt was state consideration, and so consider worth evi medical all the Government’s Of denying appellant dis- init the decision only dence, the one is Whittemore Dr. benefits, ability plainly prejudicial is so says implies appellant suf or that that itself, that, it and erroneous calls Ray Hoover pain. not. Dr. Dr. does fers statement Hoover’s final reversal. And does not. Dr. Horton does not. findings “Objective report is: in his knowledge yet arthritis that it is common subjective symptoms.” support not pain its produces pain, is one and that bearing nothing, and has no This tells expected symptoms. Richardson v. Ribi engaging appellant's sub- whatever coff, (E.D.S.C.). All F.Supp. 802 205 gainful activity. stantial say is these three doctors propor appellant “pri- subjective symptoms are out of Dr. Horton examined They findings. marily objective pulmonary” On seem tion diseases. avoiding orthopedic matters, the use of word Hoover stated assiduous always accompanies findings “pain,” ar of Wen- would defer to the which appel reports Whittemore, specialist, to thritis. Dr. Hoover dell L. light But referred, touch. what and lant overreacted whom had been pain suffering patient from arthritic examine who the last one touch, way no to, appellant. would react 110 patient “Although appears arthritic

criterion of how another it disability security capacity gainful employ- would react. cases, In social has some great must ac be ment consideration her back- educational pain; ground, demonstrating standard the individ corded which includes himself, person sewing machines, managing gift ual with all his claimant liabilities, ordinary shop, doing al assets and clerical work in the ad- Celebrezze, average hospital, may or man. Drafts v. office mininstrative F.Supp. (D.C.C.S.). ques possible make for her to gainful pain employment, tion the individual can bear. restricted is what an ex- (D. Gardner, F.Supp. amination of Coleman v. C.W.Va.). record discloses that conceded, Secretary it must failed If it be has to sustain his be, produces and that that arthritis burden. painful such arthri

the standard of how expressed “None of doctors is, depends upon tis the individual suffer opinion Vaughn pos- Mrs. ing it, a statement of an from how can capacity sessed some residual were observer, individual an overacts such physical told what are the demands touching joint to someone arthritic Secretary sales work the suffering, from which he is be substan found to exist. There no was thus he, individual, tial evidence that as an they basis the record produced overacts to the thus ? opinion could appel- form an whether lant requirements. could meet such Doing work, performing “some” Although may there be cases where requiring light “sustained ex- activities capacity pos- amount of residual gives ertion” to the kind of no clue sessed a claimant will make such judges Dr. Whittemore to be unnecessary, g., demonstration e. Jus- (6th capable of. Gardner, tice v. 360 F.2d 998 Judge speak- McCree, As well said 1966), Cir. one.” ing, for the court in case decided this regard With to Dr. Whittemore’s month, Vaughn Finch, 431 F.2d 997 phrase, requiring “sustained activities (C.A.6): light exertion,” activity per- which a engage in, son must be able to so as to “It is the of this Circuit and of law benefits, unable to claim other Circuits that when it is estab must be not but also sub- lished that a disabilities claimant’s Celebrezze, stantial. Hawkins v. resumption foreclose of his usual em F.Supp. (D.C.Ark.). Activity 341 does ployment, going the burden of forward disqualify disability not a claimant from Secretary, pre shifts to the who must gainful benefits both unless it is and sub- employment sent of evidence available Ribicoff, F.Supp. stantial. Hilber v. 196 performed which he by can contends be (D.C.Mont.). 460 capac the claimant in his lessened ity. Finch, 1388, general Goad of a v. 426 F.2d statement 1390, (6th 1970); “light perform that a 1391 Cir. Mullins claimant could Cohen, (6th v. work” 39, is not that he gainful 408 F.2d 40 substantial evidence Cir. 1969); engage Gardner, is able to Davidson F.2d substantial v. 370 803, activity. Clemochefsky Celebrezze, 1966); (6th In 823-825 Cir. v. v. Hicks (4th F.Supp. 73, Gardner, 299, (D.C.Pa.), 222 393 F.2d 78 the court 301 Cir. 1968); Gardner, said: Carico F.2d v. 377 259, (4th 1967); 261 proper evidence, Cir. Brandon v. “Once medical but- Gardner, 488, (4th 377 F.2d 491 subjective Cir. tressed 1967); Boyd 718, claimant, Gardner, sufficiently v. 377 F.2d shown a has (4th 1967); Brian, 721 impairment, Cir. Gardner v. severe it must be deter- 443, (10th 1966) (en plus 369 F.2d impairment, 446 mined claim- Cir. if such banc); status, Murphy pre- Gardner, cf. v. 379 F. ant’s educational 1, (8th 1967). substantial, gainful activity. 2d 5 Cir. clude

Ill F.Supp. Ribicoff, cians did not Blankenship 206 disclose v. gainful (S.D.W.Va.1962). ac- In cases of could substantial 165 alleges tivity. kind, the claimant this where substantial, gain- inability engage in to Moreover, single a examination personal physi- activity, his ful physician employed by the Social Securi charge claim- cian, the in whose man ty Administration saw a claimant who health, claims ant has entrusted only once, as with the contrasted evi examining physicians likewise, if practicing physician dence has of a they dispute contention, must to give treating the for been claimant seventeen opin- their basis the medical for years, is not ev sustained say to ions. sufficient Teague Gardner, F.Supp. idence. v. 281 physical a man some form of suffers 43, 48, (D.C.E.D.Tenn.N.D.), Miracle ‘light impairment yet work.’ can do Celebrezze, (C.A. v. 351 F.2d 379 medically It must shown 6), Celebrezze, 949 Combs v. 382 F.2d physical perform activities can Gardner, (C.A.6), F.2d Colwellv. 386 jobs require serious without certain aggravation (C.A.6); Flemming, Sebby 71 F. v. present physical im- Supp. (D.C.Ark.). general Other- pairment health. or to physicians em- On the evidence of the findings wise, Examiner’s ployed by the Adminis- Social pure speculation.” amount would Examiner, tration, (Emphasis supplied.) decision, Dictionary of read out of Celebrezze, F.Supp. Popovich In Occupational Titles, and, among thou- Judge Gourley (D.C.Pa.), Chief jobs listed, sands stated therein whether to determine was called opinion expert testimony an medical wit- occupations perform work- could ing such light applicant do that an “could ness work,” boxing building, in a warehouse evi- constituted “substantial light types, packing merchandise all finding support that claim- dence” weight, storage shipment, putting or engage in substantial ant was able weight on shelves merchandise employment, gainful held that and he establishments, or wholesale retail testimony did not constitute such such running weaving, caning, basket chair substantial evidence. shops factories, and wholesale errands houses, delivering messages, Massey Celebrezze, F.2d 146 tele- such (C.A.6), proving this court said: “[I]n grams, clean-up flunky, and bed-maker. applicant precluded from is not undisputed who, For ev- under man employ- performing substantial idence, hips pain in had continual ment, enough rely upon it is not testi- up legs, and who could stand ‘light mony that a claimant can time, sit down a short short ” work.’ time, jobs he is able these conclusions to a claim- Denial benefits perform sub- are not sustained although he is ant on the basis evidence, especially stantial in view employment, to return his former able Counselor, or the fact no Vocational capable engaging in he is still some witness, reported other or testified activity supported must be physical to by entailed what demands were findings as the kind of work the claim- to capable witness, work, such nor and no performing. still Hall ant is Hearing himself, Examiner form could Celebrezze, (C.A.4). F.2d 347 937 opinion an could as whether enough applicant It not can is an prop- requirements. meet It such perform requiring sustained activities Examiner, merely er for a “light must exertion.” Such the evidence of a he con- specifically described. perform activi- siders a claimant could requiring light exertion, ties The introduced read medical evidence Dictionary Occupational reports physi- Ti- of the Social Q. two-story or forth, house a one- jobs Is it therein set a list of ties story findings could house ? the claimant enter any fur- perform them without all or A. One. ther evidence. Q. many you steps do How have prop- Examiner could leading approxi- into house any erly allegedly job avail- take notice of mately? testimony be- able to claimant outside steps. A. three About him, properly and could not assume fore Q. walking you How much do do on job. of such a Selewich existence average day or miles D.C., Finch, F.Supp. 196. blocks ? remarked, may also be while go up A. I I have walk some. testifying legs the store and back down hips bursting, were filling back, station and appellant’s remarked yard. I around walk in the physicians say you “don’t are disabled to Q. Break that down blocks for into inspection job sitting do an where like me, you can, your judg- if best lines, you “Along plain are.” these same ment dictates. prejudiced tiff is not reason of the A. About selling 8 blocks. ap fact that she has not taken to ples pencils or street corner. ‘It Q. you garden Do have a ? may no answer that the claimant be the No, A. sir. oretically capable performing or one some Q. youDo mow the lawn? “nonphysical, jobs observational” Yes, A. sir. covering contained in an exhaustive list Q. you power Do have a mower? places utterly irrele circumstances Yes, vant to her situation.’ Thomas v. Cele A. sir. brezze, supra, F.2d at 546.” Q. you How do start it? 192, 195 Celebrezze, F.Supp. Amick v. rope. A. Pull a (D.C.S.C.). Q. you Do cut the lawn at all one It is said that the rather substantial operation you or do rest? range of activities which claimant get yard day A. I the back one participates impressive. testified he yard the front at another time. The activities in which claimant testi- Q. you any money Have earned at participates fied are shown you all since left Armour? testimony: A. Not a dime. “Q. you help your Do wife Q. grocery How far is it housework? store? A. Some. say A. I’ll it’s half a block. Q. you Q. What do groceryman gave do? you If the pounds groceries 25- help mop

A. I the floor—wash di she pound flour, you sack of could s some. carry it 2 blocks without Q. you any cooking Do do ? trouble, your opinion? help A. I her cook. pick up pain grabs A. IWhen Q. operating How about the wash- hip. in each ing machine ? Q. words, you In other don’t think A. I nothing don’t have you carry pounds could 25 2 that. blocks ? Q. you your do How heat house— electricity, gas, or coal? pick up A. I wouldn’t even A. pounds. Gas. get paneling. I got I’ve Q. A. this wide you an automobile? Do drive jigsaws little one these

A. Some. them with. saw out Q. many a week? How times you Q. any You can saw size hole Maybe A. once a week. want to ? you longest Q. trip What was any just I I A. don’t holes. saw months, you last 12 made out, you know, (indi- them saw cating) driving doing the ? way on the side. A. About 74 miles. Q. Curlicues, we call them some- Q. way One and back? times ? Yes, A. sir. Yes, crosspieces. A. I decorate and Q. nearly words, 150 miles other crosspieces. trip a round ? Q. you together glue pieces Do ? those Yes, day up sir, I A. but one went A. them Glue and nail them. spent night there and Q. glue you When the dries have day. come back the next got something tight to real hold? Q. Ordinarily you just drive short Yes, A. I and make a wooden chain. distances ? piece big just I take a of wood as A. I Yes. can’t hold out to drive. you up as want it from an inch Q. you any Did have bad results making and start links on it and driving that far ? long work it on chain out Yes, moving you want, put A. sir. I was I around the end get aching piece all the time. You on it and cut out a ball hurting you’ve got slots, so that four between it rolls keep moving they inside the four around. slots Q. How ^{[*] [*]} do you spend your time? together. never come out. It’s all made hunting you you shop fish- or have Q. Do little Is basement, ing anything is it? that? or or like where building back spend I most of it in the A. A little A.

yard. just do that yard. I back pastime. Q. Doing what? pastime. good It pretty Q. That is cutting got hobby out

A. I’ve interesting, it? very isn’t spice racks. sitting Yes, around sir. It beats A. Q. cutting You mean holes in it? get mo- nothing do. A. It’s It’s 15 inches a little rack. sitting around.” notonous high inches wide 11¼ according foregoing, None got inches three thick. It’s 2¼ shelves cases, substan constitutes the decided rack, spice in it — a early activity. case In the tial you hang them the wall. F.Supp. Flemming, 192 Randall things, Q. you Do you or do sell those Judge Starr (W.D.Mich.), late make them friends? stated: just IA. them for make folks stated: referee “In his decision the friends. daily the claimant ‘The activities Q. You don’t sell them? appear of a those would No, A. sir. totally law disabled individual.’ plaintiff Q. right require show job That if does neat it is completely you is bedridden the same kind I Do see. disabled, totally special helpless equipment or that he to do that have qualify bene- in order to with? fact he mobile is fits. The mere is he mobile and is en- able to gage light light engage some able to in in some tasks his home at not his home does alone es- does tasks at he is alone establish that engage engage gainful to in that he is able tablish able to substantial ” gainful activity. activity.’ Certain- substantial ly plaintiff sin- has made the fact about activities which claimant engage gainful cere efforts to in some in, participated opin testified he in our employment has not be- but succeeded helping his wife house with the ion — work, physical cause condition should floor, helping mop the to and wash provid- him bar benefits dishes, helping cook, walking her to byed act.” eight store, day about blocks a to Celebrezze, Clemochefsky filling station, In F. yard, v. and in his cut 73, 77, ting Supp. grass said : court half on their lot awith power half, day, mower one next expressly Examiner “The relies driving day, week, the automobile twice a claimant’s statement that he is able day, making miles wooden week, drive his car about once a hobby, pastime chains as a as a to avoid go fishing a few a month and times having nothing to ac do — none these personal requirements, take care gainful employ tivities would constitute showing ability to work. But ment. ability perform

the claimant’s simplest Appellant’s disqualify inability tasks should not sub- him gainful activity benefits under supported the Social stantial disability Act. The substantial in the record as the claimant must need show not be a whole. ‘helplessness, commensurate with bed Accordingly, judgment should be ” ridden ator death’s door.’ reversed and the case remanded to Secretary Prestigiacomo disability In allowance of ben- D.C., Celebrezze, v. efits. F.Supp. 999, court said: “The pres- ent lay case seemed to on the stress fact that pe- the evidence showed that

titioner was able to do some of her housework, and that she ‘worked her America, UNITED STATES flowers’ once or twice a week for an Appellee, finding, hour or however, two. This justify not sufficient to the conclu- Defendant-Appellant. SWEIG, Martin petitioner sion that the is able to en- No. Docket 35503. gage activity.” substantial Appeals, United States Court of Gardner, Mullen D.C., 256 F. Second Circuit. Supp. 588, 591, the court said: Argued 26, 1971. March “The Examiner also seem- April 14, Decided 1971. rely ed part plaintiff’s ability Certiorari Denied June 1971. personal take needs, care her See S.Ct. 2256. simple some tasks, household and to drive an automobile on occasion. Such findings cannot constitute

evidence for a denial ben-

efits. ‘The require law does not plaintiff shows that bedridden or completely helpless or that he is

totally disabled, qualify order disability benefits. The mere fact

Case Details

Case Name: James H. Floyd v. Robert H. Finch, Secretary of Health, Education and Welfare

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 26, 1971

Citation: 441 F.2d 73

Docket Number: 19177_1

Court Abbreviation: 6th Cir.