RIVES, Circuit Judge.
This action is brought pursuant to 42 U.S.C.A. § 405(g) to review a decision by the defendant which held that plaintiff is not entitled to the benefits of the disability freeze provision of the Social Security Act. That provision, 42 U.S.C.A. § 416(i)(1), defines "disability" as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration," and Section 416(i) (2) states that a "period of disability" must be "a continuous period of not less than six full calendar months * * * during which an individual was under a disability * * *." This period of low or zero income will be eliminated from the wage earner's records, increasing his "average monthly wage" and consequently the amount of future old age benefits.
The defendant's referee found that the plaintiff had not been so disabled since September 1, 1953, as claimed, and this decision was affirmed by defendant's Office of Appeals Council. This Court must determine whether or not there is substantial evidence to support the defendant's findings that the plaintiff has failed to establish that his condition precludes him from engaging in any substantial gainful activity.
The plaintiff is sixty-three years of age and has been gainfully employed most of his adult life as a traveling salesman. Allegedly, since September 1, 1953, until the date of his claim, January 5, 1956, "he has been unable to work in any field and has been forced to refuse several attractive job offers because of his health." In the Application to Establish a Period of Disability, the plaintiff answered certain questions.
The evidence presented to the referee consisted of the following: diagnosis by several physicians, accurately summarized in the plaintiff's brief;
The referee takes the alleged illnesses —"heart trouble—spastic colon—prostate —arthritis—foot trouble—back trouble" —and attempts to show that they do not render the plaintiff disabled, concluding:
The referee summarized:
After carefully reading and studying the record, I must disagree. I think there is no substantial evidence to support such a holding. There is no substantial evidence, medical or otherwise, which does not tend to corroborate plaintiff's claim. It appears that the referee based his decision largely upon a disability determination by the Department of Health, Education, and Welfare made pursuant to plaintiff's claim, wherein the report states:
This report was made on May 23, 1956, and it had as its basis a medical examination from the Veterans' Administration Hospital. The doctor making the disability determination did not have any part in the VAH report which adjudged the claimant physically entitled to non-service pension benefits. This cannot constitute the substantial evidence required to support the referee's findings in view of the fact that all the other evidence is to the contrary.
The referee, no doubt, in defining "disability," placed upon the phrase "any substantial gainful activity"
It is further apparent that the referee gave too strict an application to "disability." Even though the Act is worded in strong language and the Congressional history indicates a strict policy of application,
FootNotes
"(2) R. 57-Report of Dr. C. R. Walton, a Veterans Administration psychiatrist. His examination revealed that Plaintiff suffered from `anxiety reaction.' It did not deal with any of Plaintiff's physical ailments.
"(3) R. 58-Report of electrocardiogram administered by a Dr. Walters, who is apparently a Veterans Administration physician. He set out the results of each phase of the electrocardiogram but states no conclusion to which these results would lead in determining whether or not Plaintiff is totally disabled.
"(4) R. 59-Report of Dr. James E. Walker of Opelika, Alabama, dated January 31, 1956. He found chronic prostatic infection and hypertrophic arthritis (no mention of any heart condition). He stated no opinion as to the degree of Plaintiff's disability.
"(5) R. 60-Report of Dr. Lachlan L. Campbell, Seale Harris Clinic, Birmingham, Alabama. This physician examined Plaintiff only for a complaint arising out of Plaintiff's prostate condition. The remainder of his report deals with what he found in the records of the Seale Harris Clinic. The records show that Plaintiff's cardiac functional capacity was class 3 (marked limitation). His only statement dealing with the degree of Plaintiff's disability is `the records do not show that he was ever judged to be totally incapacitated.' (Emphasis supplied.)
"(6) R. 69 and R. 70-Reports of Dr. James F. Crenshaw of the Seale Harris Clinic, Birmingham, Alabama. These reports follow up that of Dr. Campbell. The disagnosis reported by Dr. Crenshaw was coronary heart disease, duodenal ulcer, and hypertrophy of the prostate. He states that `He (Plaintiff) should undertake no type of strenuous exercise or engage in activities which would produce mental fatigue.' He further states that Plaintiff has electrocardiographic evidence of micardial damage and that Plaintiff is considered permanently disabled.
"(7) R. 71-Report of Dr. R. B. Garlington, Camp Hill, Alabama, dated December 1, 1957. This physician states that he has been Plaintiff's family physicial (sic) for ten years. His diagnosis conforms substantially to those of other physicians who have examined Plaintiff. His conclusion is, `I am of the opinion that this man has not been able to do gainful work for the past five years.'
"(8) R. 72-A second report of Dr. Joseph Banks, of Dadeville, Alabama (See (1) above) In this report Dr. Banks says `His (Plaintiff's) disability of arteriosclerotic heart disease renders him unemployable at more than a marginal level and has for five years or more.'"
"It thus seems clear that the Congress has adopted as the standard of `disability' the requirement that the person be unable to engage in any substantial gainful activity, including not only his previous occupation but any other occupation in which he might be employable considering the circumstances of his education, age, work experience, and physical and mental capacities; and that, in determining whether the impairment claimed is of the required degree of severity, consideration must be given to reasonable medical or surgical treatment available to the claimant which would cause recovery or substantial reduction of the symptoms of his condition, and to the claimant's ability to make reasonable adjustments to new occupations. Moreover, the causal connection between any existing unemployment and the impairment must be clearly established."
"Only those individuals who are totally disabled by illness, injury, or other physical or mental impairment which can be expected to be of long-continued and indefinite duration may qualify for the freeze. The impairment must be medically determinable and preclude the individual from performing any substantial gainful work. * * *
"There are two aspects of disability evaluation: (1) There must be a medically determinable impairment of serious proportions which is expected to be of long-continued and indefinite duration or to result in death, and (2) there must be a present inability to engage in substantial gainful work by reason of such impairment (recognizing, of course, that efforts toward rehabilitation will not be considered to interrupt a period of disability until the restoration of the individual to gainful activity is an accomplished fact). The physical or mental impairment must be of a nature and degree of severity sufficient to justify its consideration as the cause of failure to obtain any substantial gainful work. Standards for evaluating the severity of disabling conditions will be worked out in consultation with the State agencies. They will reflect the requirement that the individual be disabled not only for his usual work but also for any type of substantial gainful activity * * *."
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