BOREMAN, Circuit Judge.
William E. Hanes brought this action in the District Court under section 205 (g) of the Social Security Act (42 U.S. C.A. § 405(g)) to obtain judicial review of the decision of the Secretary of Health, Education and Welfare (hereinafter Secretary) denying his application for the establishment of a period of disability under section 216(i) (1) of the Act (42 U.S.C.A. § 416(i) (1)) and for disability benefits for himself and his children under section 223 (42 U.S.C.A. § 423). Following oral argument and the submission of briefs on behalf of both parties, the District Court granted defendant's motion for summary judgment, thus sustaining the Secretary's decision.
Actually, the ultimate issue here is the same as that before the District Court, namely, whether the Secretary's determination that claimant was not disabled within the meaning of the Act
Hanes was forty-six years old at the time he filed the application. It is shown by the record that he had completed six years of school when, at age fourteen, he left school to take a job in a paper box factory where he worked for twelve years as a helper and machine operator. Thereafter he worked for a time as a truck driver for the City of Richmond, Virginia, and in 1941 was appointed to the Richmond Police Department. On May 1, 1959, he was struck from behind by an automobile as he was directing traffic in the performance of his duties as a police officer and sustained numerous injuries over various parts of his body in addition to severe internal injuries. He was hospitalized for eighty-nine days and during much of that time his condition was critical. On the day after his admission to the hospital, he underwent an operation for the resection of a gangrenous segment of the terminal ileum and end-to-end anastomosis. Following this operation his condition worsened and one week later a transverse ileocolostomy was performed and a partial dehiscence of the wound from the previous operation was repaired. Because of continued internal bleeding, a third operation was performed on May 27, 1959, and a perforated stress ulcer of the stomach was repaired. Although this operation was successful, there was further bleeding caused by multiple stress ulcers and he had edema and cardiac signs indicating some degree of heart failure. Thereafter, a severe abdominal wound infection developed which was not completely cured for several months. During the period of his hospitalization he suffered from phlebitis, jaundice, slight pneumonitis, diarrhea and other ailments. An orthopedic examination revealed a separation of the joint at his left shoulder.
Hanes was discharged from the hospital on July 27, 1959. In October 1959 he was retired from the Richmond Police Department and, at the time of the hearing before the examiner, was receiving a monthly retirement pension of approximately $243.00. Despite his continuing physical impairments, as hereinafter described,
Hanes testified that his work required only one or two hours per week during the summer and eight to ten hours per week during busy weeks in the winter. He further testified that "a good part of the time" he was unable to do the work and his duties were performed by his wife or son. For this work he was receiving $125.00 per month.
Claimant first made application for a period of disability and disability benefits in November of 1959. His claim was denied in March 1960 and on October 20, 1960, he filed a second application which was prior to his employment at Ashland Memorial. This application was also administratively denied and he was granted a requested hearing before an examiner. After considering the testimony of Hanes and that of a physician who appeared on his behalf, together with a number of medical reports, the examiner concluded that "the claimant's overall ability has not been so seriously impaired * * * as to make him continuously unable to engage in any substantial gainful activity." In support of his conclusion that the claimant was able to engage in light sedentary work, the examiner cited several industrial and governmental publications listing the types of jobs held by physically handicapped persons. Review by the Appeals Council was refused and the examiner's decision became the final decision of the Secretary.
The question presented by the circumstances here distinguishes this case from any this court has heretofore considered. In view of the extensive medical evidence with respect to the degree of claimant's impairments and his own testimony as to the extent to which his activities are limited, we would have no difficulty in holding that the examiner's decision is unsupported by the record were it not for the fact that claimant is receiving $125.00 per month from Ashland Memorial. The precise question, then, to be resolved is whether the evidence of these earnings constitutes substantial evidence to support the Secretary's decision. Although the District Court expressed the view that "it is difficult to believe that he [Hanes] could engage in substantial gainful activity other than the job which he has at the War Memorial Building in Ashland or in work of a similar nature * * *," it nevertheless concluded that Hanes' earnings from that job constituted substantial evidence upon which the Secretary could base his decision. The court apparently felt that such conclusion was compelled by a departmental regulation (20 C.F.R. § 404.1534(b)) promulgated by the Secretary which provides:
It is claimant's position that this regulation is inconsistent with the provisions of the Social Security Act and that in the adoption and promulgation thereof the Secretary exceeded the authority granted by Congress.
We are not aware of any other cases which have construed the regulation involved here.
As we have indicated, the inference created by the regulation, arising from earnings, is not conclusive and may be rebutted by "evidence to the contrary." We think the applicability and strength of the inference must vary with the circumstances in a particular case and that the totality of circumstances must be considered. Here, the extent of the claimant's impairments, the nature of
The Secretary recognizes the relevance of these considerations but argues that here (because of his pension as a police officer) there is no wolf at claimant's door and he is engaged in competitive, nonsubsidized employment. In our view, however, "evidence to the contrary" within the meaning of the regulation is not limited to the type of evidence exemplified by the foregoing illustrations. Manifestly, the inference of ability to engage in substantial gainful activity is stronger where the job itself constitutes substantial gainful activity. Hence, consideration must be given to the work which the claimant actually performs and the nature of the employment. Medical evidence with respect to the extent of the claimant's impairments is also particularly relevant where the employment itself does not constitute substantial gainful activity.
It is conceded that earnings from employment, whether or not the work itself is deemed substantial gainful activity, constitute some evidence tending to negate disability. Whether earnings in excess of $100 per month constitute substantial evidence to support the decision of the Secretary (denying disability benefits) must be determined from a considered analysis of the whole record. Cf. Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Thomas v. Celebrezze, 331 F.2d 541 (4 Cir. 1964); Farley v. Celebrezze, 315 F.2d 704 (3 Cir. 1963); Hayes v. Celebrezze, 311 F.2d 648 (5 Cir. 1963). We think the regulation has not altered this requirement.
Reviewing the whole record as it now stands, we conclude that the Secretary's decision is not supported by substantial evidence. Although there are some inconsistencies in the various medical reports of the several physicians who examined claimant between the time of his injuries in May of 1959 and the date of the hearing before the examiner in September 1962, there is no serious conflict. All of the doctors agreed that claimant continues to suffer from serious ailments as a result of the accident and the three abdominal operations. It is undisputed that he suffers considerably from pain in his legs, stomach and back; that he has severe diarrhea; that his left shoulder is permanently dislocated; and that he has a large ventral hernia. There seems to be no question that his ability to engage in any sort of physical activity is strictly limited. Two of the doctors who submitted medical reports expressed the opinion that claimant is totally and permanently disabled.
There was no medical evidence inconsistent with the conclusion that claimant is physically unable to engage in substantial gainful activity.
In addition to the medical evidence, the record contains only the testimony of the claimant. Before the examiner he testified that he has frequent swelling in his legs; that he suffers constantly from severe pains in his legs, stomach and back; that he has frequent headaches; that he has difficulty sleeping; and that he has constant diarrhea which requires him to visit the toilet ten to fifteen times a day. He further testified that he is able to drive about twenty miles without tiring; that he is able to shave, bathe and clothe himself; and that he is able to perform certain minor jobs around the house such as helping his wife shell beans and feed the chickens.
Virtually the only evidence in the record tending to support the Secretary's conclusion is the evidence of earnings. In view of the overwhelming evidence tending to establish his disability, we do not believe this evidence can be regarded as substantial or controlling. The examiner made no specific finding as to whether claimant's job constitutes substantial gainful activity. If it does not, as the record appears to indicate, then his earnings therefrom constitute very slight evidence of his ability to engage in activity which is substantial and gainful, and there should be a further inquiry as to the extent of claimant's ability to engage in additional activities. Moreover, this determination should be coupled with a determination as to what, if any, employment opportunities consistent with his ability, education, background and experience are available to claimant. See Woodson v. Celebrezze, 325 F.2d 479 (4 Cir. 1963); Cochran v. Celebrezze, 325 F.2d 137 (4 Cir. 1963). In making the latter determination, it is important to keep in mind that the employment opportunities must be actually and not merely theoretically available.
Another consideration which significantly weakens the inference which might be drawn from the evidence of earnings is claimant's testimony as to his inability to perform even his minimal duties at Ashland Memorial. He stated: "* * * A good part of the time my wife will go down and open up or either the boy, if I'm feeling extremely bad." In the present state of the record it is impossible to evaluate the significance of this testimony. The Secretary argues that since Hanes described, at length and in personal terms, his job duties at the Ashland Memorial Building, the above quoted statement, which is the only reference in the record to his inability to perform that job, is entitled to little, if any, consideration. We cannot agree. Immediately after making that statement, claimant was instructed by the examiner: "You tell me about yourself now. When do you normally open this building up?" (Emphasis added.) What further explanation claimant might have offered had he not been so enjoined by the examiner we do not know. Since the extent to
In sum, we conclude that there is not substantial evidence in the record, viewed as a whole, to support the Secretary's decision and that the granting of summary judgment was error. If it can be properly determined that claimant's job itself constitutes substantial gainful activity and that he is fully able to perform it, a different conclusion would be justified. Accordingly, the case is remanded to the District Court with directions to remand it to the Secretary for further proceedings consistent with the views herein expressed.
Reversed and remanded.