John P. McNunis v. Joseph A. Califano, Jr., Secretary of Health, Education & Welfare, 605 F.2d 743

John P. McNunis v. Joseph A. Califano, Jr., Secretary of Health, Education & Welfare

605 F.2d 743

4th Cir.

1979

Check Treatment

John P. McNUNIS, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education & Welfare, Appellee.

No. 77-2146

United States Court of Appeals, Fourth Circuit.

Decided Sept. 17, 1979.

Argued May 8, 1979.

law of abandonment of a criminal scheme and argues that such was prejudicial and erroneous. While the challenged phrase was inaccurate, particularly when considered out of context, when it is read in context and in conjunction with the charge in its entirety, we are not convinced that there was any probability of the jury having understood the same in any sense prejudicial to the rights of Gore. Actually, it was given in conjunction with charges requested by counsel for Gore, who obviously detected nothing inaccurate or prejudicial therein as he interposed no objection to such charge.” 199 S.E.2d, supra, at 759.

The district court reached a similar conclusion with respect to this isolated portion of the charge and we think properly so. In the trial court‘s charge, which runs some thirty-seven typewritten pages, the jury was repeatedly instructed that the state was required to prove Gore‘s guilt beyond a reasonable doubt and that this burden upon the state applied to every element of the offense. In Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), we were admonished “that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” The proper analysis, the Court said, “is not whether the trial court failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Viewed in this light, we agree with the district court and the Supreme Court of South Carolina that the challenged language in the trial court‘s instructions did not render Gore‘s conviction constitutionally invalid.

An additional basis for denying relief is found in the fact that Gore‘s trial counsel raised no objection to the instruction. The law is firmly established in South Carolina that the failure to object to a charge constitutes a waiver of any right to complain on appeal of an alleged error in the charge. State v. Williams, 266 S.C. 325, 223 S.E.2d 38 (1976). Such a failure to object also bars collateral relief. Ashley v. State, 260 S.C. 436, 196 S.E.2d 501 (1973). McCreight v. MacDougall, 248 S.C. 222, 149 S.E.2d 621 (1966). In view of the well established contemporaneous objection rule in South Carolina, Gore‘s application for federal relief on the basis of the jury charge was foreclosed under the principle of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

Since we discern no merit in the other issues raised by Gore on this appeal, the judgment of the district court denying habeas corpus relief is affirmed.

AFFIRMED.

P. Lee Clay, R. Anthony Welch, North Central West Virginia Legal Aid Society, Charlotte, N. C. (Anna Norton, Second Year Law Student, c/o WVU Law Center, on brief), for appellant.

William D. Wilmoth, Asst. U. S. Atty., Wheeling, W. Va. (Stephen G. Jory, U. S. Atty., Elkins, W. Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, HALL, Circuit Judge, and MERHIGE,* District Judge.

K. K. HALL, Circuit Judge:

John P. McNunis [claimant] appeals from a final order of the district court affirming the decision of the Secretary of Health, Education and Welfare that he was not entitled to disability benefits under the Social Security Act. 42 U.S.C. § 401 et seq. Claimant alleged disability due to a nervous disorder, high blood pressure, an orthopedic condition and pneumoconiosis. The administrative law judge [ALJ] found that claimant had not established his inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment or combination of impairments. 42 U.S.C. §§ 416(i), 423(d)(1)(A). The Appeals Council affirmed without comment.

Our scope of review is limited to determining whether the decision of the Secretary is supported by substantial evidence. If such support exists, we must affirm; if not, we must reverse. 42 U.S.C. § 405(g). See Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). Because the record shows conclusively that claimant has proved total disability due to pneumoconiosis, we reverse.

The social security regulations contain listings of physical and mental impairments which, if met, are conclusive on the issue of disability. 20 C.F.R. § 404.1506.

The Listing of Impairments describes, for each of the major body systems, impairments which—
1. Are of a level of severity deemed sufficient to preclude an individual from engaging in any gainful activity; and
2. Are expected to result in death or to last for a continuous period of not less than 12 months.

Pneumoconiosis is one such impairment, 20 C.F.R. Subpart P, App. § 3.06, where (1) it is demonstrated by X-ray evidence, and (2) pulmonary studies meet one of the three alternative criteria for pulmonary fibrosis set out in 20 C.F.R. Subpart P, App. § 3.04.

In this case, claimant submitted oxygen saturation studies done by Dr. Jacob which showed O₂ of 92 mm.Hg. and pCO₂ of 32.5 mm.Hg. The parties agree that these values meet the criteria specified in § 3.04(C). The Secretary contends, however, that claimant did not meet the threshold requirement of demonstrating pneumoconiosis by X-ray evidence.¹ We disagree.

Admittedly, the X-ray evidence is conflicting. But claimant has submitted two positive X-rays: one dated 12/19/72 was interpreted by the Fairmont Clinic as showing simple pneumoconiosis, and another dated 1/3/75 was interpreted by Dr. Nelson as showing pneumoconiosis 1-2_p. 20 C.F.R. Subpart P, App. § 3.06 requires only that pneumoconiosis be “demonstrated” by X-ray evidence, as a threshold to consideration of oxygenation studies under § 3.04. We need not define the exact parameters of the requirement; it suffices to note that the burden on the claimant is a lighter one than that imposed under the black lung regulations, which require that a claimant establish the existence of pneumoconiosis by X-ray evidence. 20 C.F.R. § 410.414(a).

We think the two positive X-rays of record amply satisfy the threshold requirement that pneumoconiosis be demonstrated by X-ray. As the parties agree that the oxygenation study meets the criteria of 20 C.F.R. Subpart P, App. § 3.04(C), it follows that claimant is entitled to an award of disability benefits. 20 C.F.R. § 404.1506.

The judgment of the district court is reversed, and the case remanded for the court to enter judgment for the claimant.

REVERSED WITH INSTRUCTIONS.

HAYNSWORTH, Chief Judge, dissenting:

In this Social Security case, there is evidence in the record of ventilatory impairment. It was not considered by the administrative law judge or the Appeals Council. It should have received consideration at each stage. Thus I agree that the denial of benefits without such consideration cannot be affirmed.

I believe, however, that on this record we do not have the power to find the facts essential to the award of benefits under the Social Security Act. There is evidence in the record of an impairment, but no finding that one exists. More crucially, there is no finding that the impairment, if it does exist, is disabling. Under the Social Security Act, there is no presumption of disability from the presence of such an impairment, even if it were determined that the claimant had mild pneumoconiosis.

The Secretary found the claimant could engage in gainful employment. The finding is imperfect because of the failure to consider the breathing problem. We should require the fact finder to reconsider the claim, taking into account all of the health problems, including that with the lung, but the ultimate question of disability is one of fact which should be left to the fact finder.

* Honorable Robert R. Merhige, Jr., United States District Judge for the Eastern District of Virginia, at Richmond, sitting by designation.

Notes

This issue is considered for the first time on appeal, as neither the ALJ nor the Appeals Council evaluated or even mentioned the evidence of pneumoconiosis. In the usual case, we would order a remand for reconsideration under . Anticipating the Arnold issue, counsel for the Secretary maintained at oral argument that, even had the X-ray evidence been properly considered, the ultimate decision could not have been different. See , aff‘d per curiam sub nom. . As our opinion makes clear, we are unpersuaded by this argument. Further, in a case less clear than this one, the Lucas situation would be the rare exception to the necessity of an Arnold remand.