Luther P. MITCHELL, Appellant, v. John W. GARDNER, Secretary of the Department of Health, Education, and Welfare, Appellee.
No. 19731.
United States Court of Appeals District of Columbia Circuit.
Argued Dec. 13, 1965. Decided Feb. 16, 1966.
Finally, appellants contend that because they charge appellees to have cоnspired with various officials under the color of state law, appellees can claim no immunity because of their positions with the Senate Subcommittee. It is argued that appellee‘s positions with that body must be regarded as incidental and irrelevant to the present suit; and that appellees are to be viewed as in the position of any other citizen. This, however, ignores that the conduct of which appellants complain (appellees’ activities pursuant to the subpoena) could not have been undertaken had appellees had no official legislative positions and responsibilities.11
The judgments of the District Court are
Affirmed.
WASHINGTON, Senior Circuit Judge, did not participate in this decision.
Fahy, Circuit Judge, dissented.
Mr. John A. Terry, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Arnold T. Aikens, Asst. U. S. Attys., were on the brief, for appellee.
Before FAHY, Circuit Judge, BASTIAN, Senior Circuit Judge, and TAMM, Circuit Judge.
BASTIAN, Senior Circuit Judge.
This is an appeal from an order of the District Court granting summary judgment for appellee, the Secretary of Health, Education and Welfare.
On September 7, 1962, appellant filed an application for the establishment of a period of disability and for disability insurance benefit payments under
Appellant contends that the record does not support the conclusion of the Secretary that, while appellant may have been the victim of some brain damage and epileptic seizures, his condition could be controlled by specific drugs that wоuld enable him to engage in substantial gainful activity. Appellant asserts that the Secretary neglected “to spell out the work opportunities available to [appellant] which despite his conceded limitations he could perform in a reasonably competent manner.” Appellant also asserts that there was no substantial evidence to support the decision of the Secretary.
So far as the question of substantial evidence in support of the Secretary‘s findings on the frequency and severity of appellant‘s seizures is concerned, the record discloses that at the hearing in March 1964 Dr. Leonard J. Hantsoo, medical officer at the District of Columbia jail,1 testified that appellant‘s epilepsy
It is clear, as the District Court stated in its opinion, that the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. Although the evidence was not in complete harmony on all points, the Secretary was fully warranted in making necessary determinations as to credibility and in resolving the conflicts that appeared.3 His findings as to appellant‘s personality disturbance was sufficiently plausible to fall within the limits of the Secretary‘s authority and was consistent with his own regulation on the subject.4
Appellant appears to have worked in the third quarter of 1961, at which time he was arrested on a charge of robbery. He is now imprisoned in the District of Columbia Jail, where he probably will remain for some time. The record further shows that he received four quarters of coverage in each year back to late 1956, with sporadic quarters of coverage before that time.5 Though humble the
The record sustains the Secretary and the District Court in finding appellant to be one having the personality defects referred to,6 and clearly shows his propensity for violating the law. There is no evidence that appellant‘s physical or mental condition caused these violations; on the contrary, there is evidence that he was found competent to stand trial for the crime for which he is presently confined, and there is no showing of insanity. As indicated above, the Secretary‘s finding is in accord with his regulation to the effect that “a person confinеd in a correctional institution because of antisocial behavior will not be considered disabled unless he has other severe impairments which would preclude any substantial gainful activity if he had not been so confined.” Note 4, supra page 828. See Mays v. Ribicoff, 206 F.Supp. 170 (S.D.W.Va.1962); Thompson v. Flemming, 188 F.Supp. 123 (D.Ore.1960).
A reviewing court has the duty to search the record and, if substantial evidence is found to support the administrative conclusion, it must be upheld. Wiley v. Flemming, 198 F.Supp. 705 (D. Ore.1961). Kerner v. Celebrezze, 340 F.2d 736 (2d Cir. 1965) is not to the contrary. In an earlier case, Kerner v. Flemming, 283 F.2d 916 (2d Cir.1960), the Second Circuit remanded to the Secretary for further evidence on two issues: “[W]hat cаn applicant do, and what employment opportunities are there for a man who can do only what applicant can do.” 283 F.2d at 921. However, in that case, there was no real dispute that Kerner had suffered a heart attack having a disabling effect; the serious question was whether there was evidence to sustain the Secretary‘s finding that the applicant was nevertheless able to engage in substantial gainful activity. On the second review, the court said:
“If the record of the first hearing had contained evidence such as was taken at the second, denial of Kerner‘s applications would have been legally unassailable, whatever our own views might be. Contrast Janek v. Celebrezze, 336 F.2d 828 (3 Cir. 1964).” 340 F.2d at 739.
The record and the administrative decision in the second Kerner case raised doubt as to whether Kerner had even suffered a disabling heart attack. The
Paraphrasing the language of the court in the second Kerner case, and in view of the administrative finding in the instant case that Mitchell “has not been continuously unable to engage in any substantial gainful activity because of a physical or mental impairment, or combination of such impairments, commencing on or prior to” the date of his application for benefits, this court does not reach the question of whether it is incumbent upon the Secretary to “spell out” available work opportunities. However, it would seem clear that the Secretary does not have that burden. Jones v. Celebrezze, 331 F.2d 226 (7th Cir. 1964); Witherspoon v. Celebrezze, 328 F.2d 311 (5th Cir. 1964); Gotshaw v. Ribicoff, 307 F.2d 840 (4th Cir. 1962); Graham v. Ribicoff, 295 F.2d 391 (9th Cir. 1961); Adams v. Flemming, 276 F.2d 901 (2d Cir. 1960).
Affirmed.
FAHY, Circuit Judge (dissenting).
The ultimate question is whether appellant was shown, on the administrative record upon the basis of which the District Court acted, not to be entitled to the establishment of a period of disability under
Appellant alleged medically determinable impairment, both physical and mental, consisting of grand mal epilepsy and an associated chronic brain syndrome.1 He also alleged that this would prevent him engaging in substantial gainful employment. The Examiner fоund,
From all the evidence there would appear to be no doubt that this claimant suffers from epileptic seizures, and that this condition has existed for many years.
He went into considerable detail, and there is substantial support in the record for this finding. The Examiner also concluded that the epileptic seizures were controlled by medication and that there was no acceptable evidence they had increased in number since appellant had been employed so as to disable him at present. The medication was the maximum dosage.
In addition to being an epileptic it clearly appears that appellant suffered from a brain syndrome related to the epilepsy. As the Examiner stated, in August 1963, a medical staff conference at St. Elizabeths Hospital diagnosed that appellant had a chronic brain syndrome of unknown or unspecified cause, which had existed in May 1962.2 Eleven of the twelve staff members who participated in the diagnosis agreed to this. The
Bearing further upon the brain condition the Examiner set forth that appellant had been discharged from the hospital of the Virginia State Penitentiary in 1952 as a “schizoid personality” with a history which indicated epileptic attacks since 1944, and that he had beеn hospitalized in 1945 for epilepsy. The Examiner also referred to the personal history of appellant, his low I.Q., poor education, and moderately retarded intelligence.
As to the brain syndrome the Examiner stated:
There is a finding of chronic brain syndrome by some psychiatrists, but if it does exist it certainly is not severe * * * and does not significantly impair this claimant‘s ability to engage in gainful employment.
His final conclusion was that the epilepsy and mental condition were “not of sufficient severity to prevent the claimant from continuing gainful employment.” (Emphasis added.)
This conclusion I think is without substantial support in the evidence considering the record as a whole. There is no doubt whatever, and the Examiner so found, that appellant is afflicted with grand mal epilepsy and is subject to seizures, to reduce the frequency of which maximum dosages are required.3
The only testimony on how he could be gainfully employed was that he had earned money as a cook, and as a part-time barber on weekends. This poses the question whether one in his condition can be put to work as a cook or barber, without danger to himself and others, and whether he could obtain such employment now. There is nothing in the record or findings upon which to base a conclusion that appellant could without serious danger to himself and others be substantially gainfully employed as a cook or a barber. On the contrary, there was uncontradicted evidence from a doctor that one in his condition should never be аllowed to work as a barber; and the Examiner failed to explore the assertion of appellant that the heat of a kitchen was bad for his condition. Moreover, there has been no exploration in the record and therefore no findings with respect to what “substantial gainful” employment is available to one in claimant‘s condition.4 In Ray v. Celebrezze, supra at 559, it is said:
[W]here the Secretary finds a claimant is unable to return to his former job but still is able to work and the evidence in the record does not show аny other work which the claimant is capable of doing, the Secretary must take evidence and make specific findings based upon the particular claimant‘s ability, education, background and experience as to what, if any, kind of work he or she can perform and that employment opportunities of this nature are available.
In Celebrezze v. Warren, 339 F.2d 833, 837 (10th Cir.) it is said:
The activity in which the applicant must be able to engage must be both substantial and gainful. “Disabled” does not mean “completely helpless“, but means an inability to engage in “any substantial activity.” Teeter v. Flemming [7 Cir., 270 F.2d 871, 77 A.L.R.2d 636]; Flemming v. Booker, 5 Cir., 283 F.2d 321. Such ability is not to be measured by the hypothetical average man, but by the particular claimant‘s capabilities. Celebrezze v. Bolas [8 Cir., 316 F.2d 498]; Kerner v. Flemming, 2 Cir., 283 F.2d 916. The word “any” in the statute is to be construed by what is reasonably possible, not what is conceivable. A theoretical ability to so engage is not enough if no reasonable opportunity is available. Kerner v. Flemming, supra; Celebrezze v. Bolas, supra.
It was incumbent upon the Examiner, if the Secretary and the court were to agree with his conclusion, to explorе appellant‘s reasonable possibilities of substantial gainful employment, taking especially into account the nature of his illness and the degree and likelihood of its control, dependent upon continued maximum dosages.
The ultimate conclusion of the Examiner as I have stated was that appellant could continue gainful employment. This omitted a finding that the gainful employment would be substantial. Moreover, the only basis for the finding that he could continue gainful employment is dаta as to his former employment evidenced by an earnings certification of the Social Security Administration. It indicates that over a period of five years from 1957 to 1961 appellant earned $8,896.09. This comes to about $141.00 a month for a man with a family of four to support—himself, his wife, and two small children. This presents the question whether, even if he could “continue” to be employed as thus indicated, his employment would be substantially gainful within the meaning of the statute. Note should be taken of the fact that the former earnings fall below the poverty level for a man with a family of four. Extensive legislative programs of recent years have taken as their premise that an urban family of four with income of less than $3,000 a year is in poverty. 1964 Annual Report of the Council of Economic Advisers 57-59, cited generally in S.Rep. No. 1218, 88th Cong., 2d Sess. (1964). See, also, The Economic Report of the President (1964). I do not say this controls the question before the Secretary. The Report of the Economic Advisers рoints to the necessity of considering each family separately and lists some of the factors to be taken into account. I think these judgments within the Executive and Legislative Branches of the Government do show a sensitivity to economic need which bears upon the problem the Secretary faces in administering the statutory provisions here involved.
The findings of the extent of impairment do not meet the standard expressed in Cyrus; the findings as to work opportunities are at best limited to the Examiner‘s references to previous employment as a cook and part-time barber, which clearly do not meet the requirements of the Ray and Warren cases; and there are no findings with respect to the substantiality of appellant‘s prior employment.
Finally, the Secretary‘s decision should be tempered by the spirit of the Act. As was said by the District Court of the United States for the Southern District of West Virginia:
[The] obvious purpose [of the Act] was the attainment of a humanitarian end; and, like all remedial legislation, it should be liberally construed, interpreted, and administered that it may accomplish the beneficent result intended.
Graham v. Celebrezze, 4 Cir., 230 F.Supp. 936, 939.
James E. SMITH, Appellant, v. UNITED STATES of America, Appellee.
No. 19186.
United States Court of Appeals District of Columbia Circuit.
Argued Sept. 8, 1965. Decided Feb. 18, 1966.
Petition for Rehearing En Banc denied April 4, 1966.
Bazelon, Chief Judge, dissented.
Notes
“With this particular claimant, there is a serious problem of credibility. It is entirely possible that the claimant did not report certain seizures to the prison physician, or that they were not reported by others. But St. Elizabeths Hospital also reports relatively few typical seizures actually observed, in three periods of commitment. Other institutions report the existence of the disease ‘by history.’ It is the conclusion of the Hearing Examiner that the claimant is exaggerating the number and severity of the seizures, and that they are not of such frequency or severity to prevent gainful employment, if the claimant were to be employed. The seizures are adequately controlled by medication and there is no acceptable evidence that they have so increased in number over the time he was employed, to presently disable the claimant.”
December 1962 is the date of the alleged impairment for purpose of the claim of appellant in this case.“Personality disorders are characterized by patterns of socially unacceptable behavior, such as chronic alcoholism, sexual deviation and drug addiction. In the absence of an associated severe psychoneurosis or psychosis, a personality disorder does not in itself result in inability to engage in substantial gainful activity. A person confined in a correctional institution because of antisocial behavior will not be considered disabled unless he has other severe impairments which would preclude any substantial gainful activity if he had not been so confined.” 20 CFR § 404.1519(c) (2) (iii).
In reference to the contrary proposition asserted by the majority it should be noted that in the Jones and Witherspoon cases the court found substantial undoubted testimony in the record as to the work that appellants there could do, and in Gotshaw and Graham the court applied the very test that this dissent finds necessary. The Adams case was decided on a lack of relationship between the illness and the retirement.“[T]o submit all officials, the innocent as well аs the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put it to satisfy a jury of his good faith. * * * [I]t has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do thеir duty to the constant dread of retaliation.” Gregoire v. Biddle, 177 F. 2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950).
See also Barr v. Mateo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Cooper v. O‘Connor, 69 U.S.App.D.C. 100, 99 F.2d 135, 118 A.L.R. 1440 (1938), cert. denied, 305 U.S. 643, 59 S.Ct. 146, 83 L.Ed. 414 (1938); Brownfield v. Landon, 113 U.S. App.D.C. 248, 307 F.2d 389 (1962), cert. denied, 371 U.S. 924, 83 S.Ct. 291, 9 L.Ed.2d 232 (1962); Bershad v. Wood, 290 F.2d 714 (9th Cir. 1961).