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Bledsoe v. Richardson

decided: November 14, 1972.


Stevens and Sprecher, Circuit Judges, and Campbell, Senior District Judge.*fn* Sprecher, Circuit Judge (dissenting).

Author: Stevens

STEVENS, Circuit Judge.

Claimant-appellant petitioned the district court to review a denial of social security disability benefits. The district court entered summary judgment against claimant upon finding that there was substantial evidence to support the Secretary's determination that appellant was not under a "disability" as defined in Title II of the Social Security Act.*fn1 We affirm.

Claimant's theory is that the aggregate effect of his several physical impairments renders him disabled and entitles him to disability benefits. The Hearing Examiner rejected this contention, expressly finding that the appellant's disorders "alone or in combination thereof are not so severe that they result in any marked or significant interference with the claimant's work capacity in the type of employment he has previously engaged as a bartender." Hearing Examiner's Decision at 7, App. 18. The question presented by this appeal is whether the administrative findings are supported by substantial evidence.

We share the opinion evidenced by the Fourth Circuit's holding in Dillon v. Celebrezze, 345 F.2d 753 (1965), that such findings should be carefully scrutinized when it is manifest that the claimant's work capacity is impaired by his physical condition. Nevertheless, it is not our function to substitute our judgment for that of the administrative agency which processed the claim. In this case we are satisfied that the record contains substantial evidence supporting the Secretary's findings.

Appellant is a World War II veteran. Since 1944 he has carried a piece of shrapnel in his right shoulder; it causes him some pain and entitles him to a 30% disability pension as a veteran. Upon discharge from the Navy in 1945 he opened a grocery store, but the venture failed after three years. He then worked in several capacities, including as a machine lathe operator and as a parts inspector on an assembly line. He was laid off in the spring of 1956. He had no steady employment until he was hired by the Indiana Highway Department in 1961; during that period he performed only odd jobs such as planting and fruit picking. After two years with the highway department he went to work for his aunt as a bartender and continued in that capacity until she sold the tavern in June of 1969. Except for a brief period of picking fruit for his brother, he has been unemployed since then.

On April 15, 1970, claimant filed an application for disability insurance benefits with the Department of Health, Education and Welfare. He was promptly examined by his own physician, Dr. Rompf, and given a "disability interview" by a representative of the Secretary. His doctor's diagnoses were: "1. Generalized osteoarthritis; 2. Hiatal hernia; 3. Foreign body in right shoulder; 4. Old wrist fracture (right)." Ex. 11, App. 76, 78. These medical findings have been accepted at all subsequent stages of the proceeding.

In his application and in his interview claimant also complained that his legs buckled and cramped upon walking and that he suffered from stomach pains. The interviewer noted no observable physical difficulties,*fn2 and commented that appellant was: "Very evasive. Very difficult to obtain any answers." Ex. 10, App. 72, 75. In May of 1970 X-ray examinations were made to determine the basis for appellant's claim that his legs buckled.*fn3 In a report dated May 20, 1970, the results of the X-ray examination were summarized as follows:

"The claimant complains of arthritis in right shoulder, arm and back. He also says legs buckle and cramp upon walking.

"X-rays taken 5/11/70 of lumbo-sacral spine show a mild curve of the lumbar spine. There is no evidence of fracture, tumor or bone defect. The vertebrae and disc spaces all appear normal. At the same time X-rays were taken of the pelvis and hips which were normal except for minimal degenerative joint disease in the hips.

"Considering the absence of any X-ray or laboratory evidence to support an impairment severe enough to preclued the W/E [wage earner] from engaging in his usual employment, it is determined the W/E is not under a disability." Ex. 14, App. 83, 84.

On June 16, 1970, appellant was advised that although he met the earnings requirement for disability purposes, his medical condition was not disabling within the meaning of the law. Ex. 2, App. 62.

On June 24, 1970, appellant filed a request for reconsideration, stating that he was unable to work because of "diseased hip joints, arthritis of spine, hernia, and calcium deposits in aorta." Ex. 3, App. 64. He further stated that his doctor agreed that he was unable to work and that it was necessary for him to take nerve and pain pills daily, shots every three weeks, and that his legs were weak and buckled. Following that request, on August 13, 1970, appellant was reexamined by Dr. Wheeler, a physician selected by the Secretary. Dr. Wheeler's report is thorough and detailed and confirms the presence of various physical impairments. In the concluding paragraph of his report Dr. Wheeler stated, in part:

"Prognosis for return to work is fair. His pain of his joints and muscles and attacks of weakness of his legs would interfere with him performing manual labor. It is felt that he could safely return to his previous occupation. His malfunction appears to be slightly progressive. Patient could take training for a full time sedentary position requiring standing and ...

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