MIRACLE v. CELEBREZZE

McALLISTER, Senior Circuit Judge.

This is an appeal from an order of the district court dismissing appellant's claim for disability benefits under Section 205(g) of the Social Security Act.

The background of the case is as follows: Appellant, William T. Miracle, is now a man fifty-six years old. He finished the second grade at school and started the third grade, which he did not complete. He got only that far up to the age of eighteen, because he had to work helping his father to support the family and, therefore, could go to school only a very little from time to time. As he stated: "I was practically grown before I got to go to school." He could never hold down a job requiring the slightest reading or writing. From childhood, his life was one of hard labor. He came from Cubbage, a mountain village at the head of Brownie's Creek, a hollow in Bell County, Kentucky. This is a part of what is called Appalachia, one of the areas of our country afflicted, for a considerable time in the past, with unemployment and consequent poverty. Appellant, however, at different periods of his life sought and found employment not only in Kentucky, but in Tennessee, Kansas, and Ohio.

When he started to work, as a boy of sixteen, it was with the L&N Railroad, cutting and logging timbers and making mining props. He was afterward employed in hauling logs and then he worked on his own, splitting the timbers with iron wedges and steel hammers, subsequently selling the timbers to the mines. He also hired men to do the same work that he was doing and paid them by the day. He hauled the logs out of the woods with horses and mules which he came to own, and afterward sawed the logs. Thereafter, he went back home and made timbers for the mines; and their trucks would come and get them. He then worked for a company "road-swamping" — clearing roads up to the logs so that the teams could get through to them. After that, he worked for a powder plant, unloading lumber off the cars. At that time he hurt his back while he was carrying a heavy piece of timber and his feet slipped on the frozen sleet. Later, he went into construction work, building conveyor lines and houses up to the mines and tipples down at the railroad. He was only a common laborer in performing this work. When he built tipples, he used hand saws, electric drills, and carpenter's hand tools. During these two years, his work was very satisfactory, according to his supervisor. Appellant stated: "They showed me the figures on the square they wanted the timber cut on like that but I can't say I am a carpenter." Afterward, he worked for his brother in the woods for two or three months, and then began driving a bus for him. In the woods he cut roads and hauled logs. When the mines "went slack" in 1955, and he lost his job there, he started trucking logs and buying them. Later, he moved from Kentucky to Tennessee and afterward traded his place in Kentucky for one in Tennessee, where he was able to sell a truckload of timbers a month. He also had some pine on his place which he sold for pulp wood. After about two years, in 1959, when, as appellant said, he became "disable to work" he moved to Ohio and sought work in September 1959, after telling his employer that he was unable to do any lifting. He started work, sweeping the floors and dusting machinery. His eyesight was bad and he could not competently sweep or dust. This work was too much for him.

He afterward assisted in unloading some cars. This, he also was unable to do. Although he was paid $1.25 an hour, he could not hold down the job because, as he claimed, of the pain resulting from his spinal condition. In fact, he was discharged on the ground that he could not do the work. His employer, however, after trying him in these different jobs and finding that he could not do the dusting, sweeping, or lifting work, kept him on for two or three months "out of sympathy" as his employer stated, and they parted on friendly terms.

There were two hearings and two decisions in the administrative proceedings in the case. In the first hearing, on September 30, 1960, Edward Moeller, the Hearing Examiner, after reciting certain evidence relating to appellant's osteoarthritis and abnormalities of the cervical and lumbo sacral spine, held that the medical evidence did not disclose that appellant's impairments were of sufficient severity as to preclude all substantial gainful activity and that, while such evidence might indicate that appellant may not be able to tolerate hard manual labor, there appeared to be no restriction on moderate work activity; and the Hearing Examiner, in consideration of the foregoing, decided that appellant was not entitled to disability benefits. Appellant then sought review before the Appeals Council; and his request for review was denied on the ground that "a formal review of the Hearing Examiner's decision would result in no advantage to the claimant."

Appellant then filed a complaint in the district court on the ground that the findings of the Hearing Examiner and the affirmance thereof by the Appeals Council were erroneous. He asked the court to reverse the findings and decision and determine that appellant was entitled to disability benefits. However, after the filing of appellant's complaint in the district court, since there was no evidence to substantiate the Hearing Examiner's holding that appellant's impairments were not of sufficient severity as to preclude all substantial gainful activity, in that there was no evidence of what kind of work appellant could perform, and what practical opportunities there were for a man afflicted as he was, counsel for appellant moved to remand the cause for the purpose of taking further evidence on the ground that there was "a total absence of evidence as to the employment opportunities available to a man who can do only what the plaintiff, Mr. Miracle, can do." In accordance with our former rulings, the district court found appellant's motion well taken, denied the government's motion for a summary judgment, and entered an order remanding the case to the Secretary of Health, Education and Welfare "for the purpose of taking further evidence as to the following issues:

On the remand, a different Hearing Examiner, J. C. Goodwin, on January 28, 1963, considered the prior testimony and proofs, took additional testimony and proofs and, in his recommended decision (which was adopted by the Appeals Council), found that appellant had not established that he had impairments of sufficient severity as to preclude him from engaging in any substantial gainful activity, at any time he met the special earnings requirement of the Act, and continuing thereafter through the date his application was filed.

We come then to the controlling consideration in the case — appellant's spinal condition and his pain, and whether he was able to engage in substantial gainful employment.

At the outset of the Hearing Examiner's recommended decision on the second hearing, which formed the basis of the decision of the Appeals Council and of the district court denying appellant disability benefits, the Hearing Examiner stated to appellant: "The rules of evidence are not followed here, as you were probably advised in your former hearing, because I am primarily interested in obtaining all of the facts. * *" The Social Security Act must be administered with much informality, and the satisfaction of the claimant's statutory burden is to be judged in a practical way. Fowler v. Ribicoff, 197 F.Supp. 508 (D.C. W.D. So. Carolina). On the hearing, various statements of physicians and others were marked as exhibits and considered as evidence, although those who made the statements were not sworn as witnesses, and, in many cases, statements, not made in the ordinary course of business or the keeping of records, were also marked as exhibits and considered in evidence. This is the customary informal way of hearing a case for disability benefits under the Social Security Act, and we mention it only to indicate that, on review, we consider the same statements as evidence in a like manner as did the Hearing Examiner and the Appeals Council.

On the second hearing, after remand, J. C. Goodwin, Hearing Examiner, in his decision stated: "There was a history of two previous injuries, one in 1937 when he was pushing a cart in the coal mines and fell down and hurt his back, and another injury in 1942, when he was lifting timber."

In a statement made by Dr. Charles B. Stacy, M.D., of Pineville, Kentucky, on August 22, 1958, he reported:

On July 29, 1959, Dr. Stacy again examined appellant and rendered a medical report, stating that appellant's injury occurred in July 1958; that his subjective symptoms were "pain in back," radiating to cervical region, also pain in lumbar region; that his diagnosis was "chronic osteoarthritis of spine"; that appellant used salicylates; and wore a low back brace; that X-rays showed spinal abnormality and osteoarthritis.

On October 2, 1959, Dr. William L. Patterson, M.D., of Knoxville, Tennessee, examined appellant for the Kentucky Bureau of Rehabilitation Services, for the Social Security Administration, and reported that appellant stated he had injured his back in 1937 and in 1949, and had worn a brace since 1952; that his pain was chiefly in the upper lumbar spine, "which he says goes into the upper dorsal and occipital area of the neck." Dr. Patterson further reported that: "On examination, the patient was tender over the 10th dorsal vertebral body, and there was left paravertebral muscle spasm. * * * He had 20 per cent restriction of lateral flexion of the lumbar spine. * * * X-rays taken on October 2, 1959, of the lumbar spine showed moderately advanced osteoarthritis between D-11, and D-12, which is compatible with an old injury. The intervertebral disc space between these two vertebrae was slightly narrowed. The patient was slightly obese. He did not seem to be in marked difficulty, but it would be awfully hard to say that he is not having back pain due to the arthritic condition which is present. I doubt seriously if he would be able to tolerate hard manual work at his age [51 years] and with the arthritic changes noted on the X-rays." (Emphasis supplied.)

On August 26, 1960, Dr. Bernard C. Dienger, M.D., in an ophthalmological consultative examination, stated:

He further reported that the ocular pathology primarily responsible for appellant's impaired vision was: "Peri macular degeneration in both eyes" and that the secondary pathological condition was: "chorio-retinitis inferior temporal quadrant" and "chorio-retinitis central"; and that the history of his eye injury was "Coal dust scar in left eye, no residual scar noted." He reported appellant's visual efficiency as a 14% loss in his right eye, and a 36% loss in his left eye.

On September 9, 1960, appellant was given an additional orthopedic examination by Dr. John R. Levitas, M.D., in Cincinnati. Dr. Levitas had seen appellant eleven days before the day of the examination and stated that appellant had worn a back brace since 1959. This was obviously erroneous as the other doctors who had examined appellant many years before stated that he had been wearing a back brace for ten to twelve years, at the time of those examinations. Dr. Levitas further stated:

Later, on November 23, 1960, Dr. Levitas made another examination of appellant, and reported:

On November 26, 1960, Dr. H. O. Beeman, M.D., of Norwood, Ohio, stated the following:

On November 14, 1961, Dr. Adam Stacy, Jr., M.D., examined appellant for the Kentucky Department of Economic Security, Division of Public Assistance, and reported that appellant had gland trouble, sinus trouble, and a dead kidney, He also reported that appellant's neck was extremely limited in motion to right, left, and in all directions; that all of these movements were made with pain; and that the motion of his back was limited in all directions with about 30% forward flexion. Dr. Adam Stacy's diagnosis was "arthritis, old cervical vertebra, thoracic and lumbar vertebrae, severe."

On January 27, 1961, Dr. Leonard J. Stark, M.D., performed an orthopedic examination on appellant and took X-rays, and made the following report:

On December 12, 1961, Virginia Chambers, a field worker for Bell County, Kentucky, rendered a Social Data Report in which she stated that appellant wore a steel back brace twenty-one inches long; that he stated he took medicine for pain all of the time; that he "seems to think he is not getting any better but is really getting worse all of the time. He does not seem to exaggerate his condition to attract attention or to get sympathy. His wife is worried about his condition. He has tried to be independent as long as he could in the past." (Emphasis supplied.) Miss Chambers further reported:

On October 4, 1962, Dr. Beeman again reported to the District Manager of the Bureau of Old Age and Survivors Insurance of the Department of Health, Education and Welfare, in reply to their request for information:

On October 27, 1960, the Ohio Valley Good Will Industries Rehabilitation Center reported that appellant came to the Center, stating that he was interested in getting some kind of work; that he had a major disability of a slipped disc dating back to 1937; that he had been working at the Keidel Supply Company but was laid off because the work was too heavy for him. The Rehabilitation Center informed appellant that they had no job open but would keep him in mind; but he never heard from them again.

On May 21, 1962, the Bureau of Vocational Rehabilitation of the Ohio State Board of Education wrote to the Social Security Administration stating:

On January 8, 1963, Dr. R. B. Baird, Jr., M.D., reported:

On April 15, 1960, the Administrator of the Ohio Bureau of Unemployment Compensation stated with reference to appellant's discharge by the Keidel Supply Company as follows:

On January 27, 1962, Mr. Arthur Keidel submitted to the Social Security Administration a statement with regard to appellant's employment with the Keidel Supply Company, in which he said:

Subsequent to the remand and about a year after Mr. Keidel's statement, for some undisclosed reason, the Social Security Administration prepared another statement for Mr. Keidel to sign, which did not contradict the first statement but the phrasing was changed and the sequence of the facts was altered, giving a somewhat different emphasis to the statement. As an instance, in the second statement it stated that the property of the company covered thirty thousand square feet which appellant walked around daily. This, obviously, was to show appellant had no difficulties in walking long distances, a fact that was later virtually cancelled out in the Hearing Examiner's decision. Although it stated that appellant had told Mr. Keidel that he could not do any lifting, the statement went on to say that he moved cans around weighing fifty pounds apiece, and that he bent over in order to pick up filled wastepaper cans and cartons in the receiving department. This fact was also virtually withdrawn in the Hearing Examiner's decision. Instead of the prior statement of the employer that appellant was kept on out of sympathy for a few months, at $200 a month, that his work was terminated under mutual consent, and that they parted on a friendly basis because he could not do the work, the second statement of Mr. Keidel, prepared for his signature by a representative of the Appeals Council, stated: "I frankly don't remember why his services terminated."

On the first hearing, the decision of the Hearing Examiner stated: "After carefully considering all of the evidence in this case, the hearing examiner finds that the medical evidence does not establish claimant's impairments to be of sufficient severity as to preclude all substantial gainful activity. * * * While the medical evidence may indicate that claimant may not be able to tolerate hard manual labor, there appears to be no restriction on moderate work activity."

The foregoing decision, as heretofore mentioned, was reversed by the district court for the reason that there was a complete absence of proof of any work that appellant could do, as well as a complete absence of proof of what employment opportunities there were for a man who could do only what the appellant could do.

In the determination of the Hearing Examiner on the second hearing, on which the decision of the Appeals Council and the district court is based, the ground upon which the decision is based is stated as follows:

Appellant's physical condition is a litany of pain.

To sum up: Dr. John R. Levitas, a specialist in orthopedic surgery, who examined appellant at the request of an agency representing appellee Secretary, stated that "Physical examination revealed tenderness along the entire spine, cervical to the sacrum."

Dr. H. O. Beeman stated that appellant's chief complaint had been one of back distress, associated with severe head pains; and that he had received, for the alleviation of his pain and nervous distress, Dartal, Mellaril, Soma, Analexin, Norflex, Percodan, Deroon Comp. and Delenor; that none of these medications appeared to help appreciably; and that he had a chronic back complaint which was incapacitating as far as steady gainful work is concerned.

Dr. Leonard J. Stark, who performed an orthopedic examination on appellant, stated that he was cooperative; that he was wearing a steel spinal brace which extended from the pelvis to his shoulders, and which showed considerable wearing and need of repair; that his cervical spine was tender along the left side from the 3rd to the 7th vertebra; that rotation of the neck toward the right was limited 25% and was painful; that backward bending was associated with low back pain; that there was no question that appellant had a physical disability — giving all the reasons therefor; that he was anxious and worried because of the nature of his disability and the pain he suffered; and that he was totally unable to perform the type of work which he had done previously and, from a practical standpoint, was unemployable.

Dr. Adam Stacy, who examined appellant for the government, reported that appellant's neck was extremely limited in motion to left, right and in all directions; that the movement of his back was limited in all directions with 30% forward flexion; that all of these movements were made with pain; that he had arthritis, old cervical vertebra, thoracic and lumbar vertebrae, severe; and that he was undoubtedly disabled.

Dr. William L. Patterson stated that appellant, after his back injury in 1937 and 1949, had worn a brace since 1952; that his pain was chiefly in the upper lumbar spine; that he was tender over the 10th dorsal vertebral body, and that there was left paravertebral muscle spasm; that he had osteoarthritis between D-11 and D-12, and between L-5 and S-1, and the disc spaces between these different parts of his spine were narrow; that it was "awfully hard" to say that he was not having back pain and that the doctors seriously doubted he would be able to tolerate hard manual work at his age and with the arthritic changes shown on the X-rays.

The evidence was to the effect that in March 1959, appellant had sold all the property that he ever possessed and had used it for living expenses of his family, and that in July 1959 it was about used up, and that thereafter the "welfare" took care of him and his family until he came to Ohio looking for some employment.

Appellant's own testimony, which is substantiated by the physicians' estimate of his pain, may be summed up as follows: During his examination by the Hearing Examiner, appellant became greatly confused about various dates, concerning which there was no dispute, and suddenly said: "Will you all excuse me for a minute. You will have to get used to me a minute. I have a pain in the back of my head. I forget just a little bit now. I am in pretty critical shape now."

On further examination by the Hearing Examiner, appellant testified:

Appellant further stated: "The pain starts in the lower part of my back, goes up my back into my spine, my head gets numb, my arms also. I can hardly keep from screaming. My legs also get numb, but not as often as my head and arms. At times it feels like a tight band around my head. I have felt often for my hat to take off, but it wasn't my hat, it was due to my condition."

In another instance the Hearing Examiner put various questions to appellant and received the following answers:

Appellant also testified that in December 1961 he had taken a job for two hours a day to drive an old truck to take children to school and held the job two months. He gave it up because of his spinal condition, that seemed to go down over his body and made his feet so numb that he could not feel the accelerator; and that the numbness which gets worse day by day started in 1959.

There is nothing in the evidence by the physicians or lay witnesses that in any sense contradicts or implies a contradiction of appellant's testimony as to the pain he suffers and has suffered. Moreover, the Hearing Examiner concedes the pain, but holds that pain must do more than hurt — that it must substantially aggravate his malady. This is completely erroneous, as will hereafter appear.

We have, then, a man who for twelve years has worn a steel brace, 21 inches long, extending along both sides of his back from his pelvis to his shoulders, and who worked during most of that time; whose spinal condition has been described by numerous medical experts as chronic osteoarthritis of the spine, narrowing of intervertebral spaces between the discs of the spine, disc lesion, tenderness along the entire spine, tenderness over the 10th dorsal body, and paravertebral muscle spasm, marked limitation of cervical flexion, and lumbar spinal chronic low back strain, congenital abnormalities of cervical and lumbosacral spine, extreme limitation and painfulness in motion of neck to right left and in all directions severe arthritis of the cervical, thoracic and lumbar vertebrae, large spurs on the bodies of the lumbar vertebrae, indicating presence of degenerative arthritis, in which the major portion of appellant's complaints stems from his injury in 1937, arthritis of the spine, and a ruptured disc; and medical testimony that appellant is completely disabled; disability estimated at 60%, and from a practical standpoint not employable, completely disabled from any hard manual labor; and incapacitated as far as steady gainful work is concerned. Of all of the medical testimony, one physician, Dr. Levitas, after stating that there was tenderness along the entire spine, limitation of lumbar and cervical flexion, hypoesthesia to pin prick throughout both upper extremities, fusion of four vertebrae, and a transitional vertebra between L-5 and S-1, chronic low back pain and congenital abnormalities of the cervical and lumbosacral spine, gave it as his opinion that appellant had a chronic lumbosacral strain with psychosomatic overlay, which results in a permanent partial disability of 20%. Even to a layman, this appraisal of comparatively slight disability seems entirely superficial, considering the results of the physical examinations by Dr. Levitas, and his medical diagnosis and conclusions, especially when compared with the contradictory testimony of all of the other physicians above mentioned, and when accompanied by the statement that Dr. Levitas considered that, in addition to the spinal condition and pains, there was a "large psychosomatic element present." The psychosomatic element will be considered later. Besides, Dr. Levitas' appraisal of disability may, itself, be appraised in the light of his assumption that appellant had been wearing the steel brace only about a year, when he had been constantly wearing it for approximately ten years.

Moreover, appellant's pain was so severe that his physician stated that none of the pain-killing drugs or sedatives prescribed by him and used by appellant — nine various drugs — were, in the physician's opinion and according to appellant's testimony, of any appreciable help in alleviating appellant's distress and pain.

It is to be emphasized that the findings of the Hearing Examiner are not considered to be supported by substantial evidence when he relies on isolated remarks of one or two medical reports before him. Park v. Celebrezze, 214 F.Supp. 153 (D.C.Ark.), app. dismissed, 321 F.2d 543 (C.A.8). Further, it is error for a Hearing Examiner in a disability benefit case to fail to consider the mass of medical evidence and opinion bearing upon claimant's attitude and psychological condition. Fowler v. Celebrezze, 222 F.Supp. 609 (D.C.N.C.).

This case starts out with a primary reversible error to the disadvantage of a poverty-stricken man suffering from pain incurred during a lifetime of hard labor. The keystone of the decision by the Hearing Examiner, which was adopted by the Secretary of Health, Education and Welfare and which constitutes the basis of the judgment from which appeal is taken, states:

The foregoing is the basis upon which the Hearing Examiner ruled out appellant's pain as disabling.

This court has repeatedly held that it will not follow the holding in Theberge v. United States, 2 Cir., 87 F.2d 697, but that, rather, we follow the holding and notable decision in Butler v. Flemming, 288 F.2d 591, 595 (C.A.5), in which Judge Brown, speaking for the court, said:

In Drafts v. Celebrezze, 240 F.Supp. 535, 538 (E.D.S.C.), the court said:

If a person is unable except under great pain to engage in any substantial gainful activity in which he might be employable, taking into consideration his age, training, work experience and physical and mental capacities, he is deemed disabled for purposes of the Social Security Act. Smith v. Celebrezze, 229 F.Supp. 827 (D.C.N.C.). Even pain unaccompanied by any objectively observable symptoms, which is nevertheless real to the sufferer and so intense as to be disabling, will support a claim for disability benefits. Ber v. Celebrezze, 332 F.2d 293 (C.A.2). The fact that there is such a subjective symptom as pain of claimant for social security benefits does not mean that it ranks as a lesser type of disability. Blanscet v. Ribicoff, 201 F.Supp. 257 (D.C.Ark.). The notion that pain must be endured, that pain, no matter how severe or overpowering, is not disabling unless it will substantially aggravate a condition, is contrary to law under disability provisions of the Social Security Act which were intended to ameliorate some of the rigors that life imposes. Page v. Celebrezze, 311 F.2d 757 (C.A.5). The criteria to be considered in determining a claimant's ability or inability to engage in substantial gainful activity, for purposes of determining his right to social security disability benefits, are objective medical facts, diagnoses, and expert medical opinions on subsidiary questions of fact, subjective evidence of pain and disability testified to by claimant, and claimant's educational background, work history and present age. Helton v. Celebrezze, 200 F.Supp. 759 (W.D.N.C.); affirmed 331 F.2d 342 (C.A.4).

In Lewis v. Flemming, 176 F.Supp. 872-876 (E.D.Ark.W.D.), the court, in reversing the Referee's decision that a claimant was not entitled to disability benefits stated:

As a further disabling factor, there is a large psychosomatic element affecting appellant's condition.

Dr. Levitas stated, after an orthopedic examination of appellant, that he had a chronic lumbosacral strain with psychosomatic overlay, and that his history and subjective responses led Dr. Levitas to feel that there is a large psychosomatic element to his complaints. Dr. Baird, after appraising appellant's injuries as a ruptured intravertebral disc and arthritis of the spine, found that he was extremely psychoneurotic and cerebrally deficient, and that such deficiency would prevent him from performing gainful employment. Dr. Beeman, who had prescribed all the pain-killing drugs for appellant who had used them without any appreciable alleviation of his pain, said, after examining appellant, that he felt there was a fair degree of anxiety present and a psychosomatic element associated with appellant's complaints; and that appellant should have the benefit of consultation with a neurologist, an orthopedic surgeon and, perhaps, a psychiatrist. There is no doubt about the large psychosomatic element affecting appellant's condition, as well as the degenerative state of his spine. The Hearing Examiner, himself, found that "it is apparent that claimant suffers from some spinal ailment which is caused in part by degenerative osteoarthritis. This is superimposed upon a congenital abnormality and perhaps aggravated by trauma. This condition is further complicated by a psychosomatic overlay."

Although this "psychosomatic element" is mentioned in the Hearing Examiner's Determination, nothing in the record informs us of what this consists, or that the Hearing Examiner paid any attention to it more than merely to mention it. It is a factor which is considered very important by nearly all of the physicians whose evidence was considered in the case, but we are not told by the Hearing Examiner how this factor affects appellant, although, obviously, it has an important effect upon him. Under these circumstances, it appears proper to make a few observations on the meaning of the "psychosomatic element" present in appellant's condition, and these observations are taken from standard authorities on the subject.

Studies in psychosomatic medicine, as hereafter appears, disclose that emotions can cause transitory or chronic disturbances of physiological functions, and this fact is sustained by the courts. In this case, Dr. Beeman, after examining appellant, recommended that he should have the benefit of consultation with a neurologist and, perhaps, a psychiatrist because of the degree of anxiety present. Dr. Baird stated that appellant was extremely psychosomatic. Other physicians gave it as their opinion that there was a large psychosomatic element affecting appellant's condition. In "Mental Abnormality and Crime" published as one of the English Studies in Criminal Science, by the Department of Criminal Science, Faculty of Law, University of Cambridge (MacMillan and Co., Ltd., London, 1944), Dr. D. R. MacCalman, M.D., Lecturer in Psychopathology at Aberdeen University, at p. 129, states:

A psychosomatic overlay does not mean some imaginary complaint. "What the systematic psychosomatic studies have shown is that not only transitory physiological changes can be caused by emotions, but that sustained emotional strain may lead to chronic disturbances of physiological functions and in this way cause bodily diseases."2 "Arthritis, for example, may be the reaction to a simple emotional disturbance. It may mark a deeply varied emotional disturbance. It may have created such tissue damage that it is called organic. In all three cases the joints may be equally swollen, the pain equally intense."3

We have, then, the finding of the Hearing Examiner that appellant suffered pain, caused organically as well as pain caused emotionally — "from some spinal ailment * * * caused in part by degenerative osteoarthritis * * * superimposed upon a congenital abnormality and perhaps aggravated by trauma * * * and is further complicated by a psychosomatic overlay." Yet, because the pain does not do more than hurt, the Hearing Examiner finds such pain is not disabling because it does not substantially aggravate appellant's malady. This, as we have shown, is clearly erroneous.

In addition to his erroneous views and conclusions on the disabling entity of pain, the Hearing Examiner proceeded to rule repeatedly contrary to the decisions in disability cases rendered by this court and other leading adjudications by federal courts on this subject. He held that the medical evidence did not indicate that appellant's impairments had become so severe that he was unable to engage in substantial gainful activity of a non-strenuous nature, and that there was no reason why his physical impairments would prevent him from engaging in lighter types of unskilled labor. This conclusion is entirely unjustified by the evidence.

When a claimant comes forth with evidence of serious physical impairment, the record must contain evidence on which the denial of the claim may be based; and where there is uncontroverted medical testimony that the applicant is unable to engage in any substantial gainful activity, it is the duty of the Secretary of Health, Education, and Welfare to award him the relief requested, assuming that all other qualifications are met. Davis v. Celebrezze, 213 F.Supp. 477 (D.C.Tex.); Williams v. Celebrezze, 228 F.Supp. 627 (D.C.Ky.); Jarvis v. Ribicoff, 312 F.2d 707 (C.A.6).

The record gives no appreciable support to a finding that appellant was able to engage in a substantial gainful activity. Quite the contrary, it gives overwhelming support to a finding that appellant could not do hard or moderate manual labor, and, indeed, that he could not maintain even slight exertion for any length of time.

Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It has been held that the finding of a Hearing Examiner that a 62-year-old claimant, who had only three years of schooling, could write only his name but could not read, and who had fingers that were arthritic, with swollen joints and limited movement, was able to engage in substantial gainful activity, was not supported by substantial evidence. Music v. Ribicoff, 195 F.Supp. 907 (D.C.Ky.). See also Cummins v. Celebrezze, 222 F.Supp. 285 (D.C.Ark.). In Leath v. Flemming, 191 F.Supp. 577 (D.C.Ala.), the court held that the determination of the Secretary that a claimant who suffered from arthritis so severely that he could not remain standing or sitting for long, could walk only short periods of time, and could drive only very short distances, was not so disabled as to preclude him from performing gainful activity, was not supported by substantial evidence. "Although a few of the doctors who examined Plaintiff did not make a specific finding of disability on the part of the plaintiff to perform manual labor, a summary of all of the medical evidence can lead to the only conclusion that Plaintiff is not able to engage in substantial gainful employment." Davis v. Celebrezze, 213 F.Supp. 477, 478 (D.C.Tex.).

Where a Hearing Examiner has received expert opinions on the issue of a claimant's ability to work and they are not repudiated in any respect by substantial evidence, an adverse decision should be set aside as based on suspicion and speculation. Hilber v. Ribicoff, 196 F.Supp. 460 (D.C.Mont.).

A court is not bound to sustain the denial of disability benefits where a claimant has raised serious questions and the evidence affords no sufficient basis for the negative answer of the Secretary of Health, Education and Welfare; and where the opinion of a medical expert that claimant is totally disabled is not controverted by substantial evidence, an administrative determination that the claimant is not disabled will be reversed.

The Secretary's holding that appellant was not disabled for substantial gainful employment appears to depend upon Dr. Levitas' statement that he had a permanent partial disability of 20%. This statement appears contradicted by the other findings of Dr. Levitas who saw appellant only on two different occasions for examination. But appellant's family physician, Dr. Stacy, said he was undoubtedly disabled. Dr. Stark said he was totally unable to perform the work which he had previously done, was 60% disabled and, from a practical standpoint, unemployable. Dr. Beeman said he was incapacitated as far as steady gainful work was concerned. Dr. Baird said he was totally and permanently disabled from any kind of gainful employment. The Hearing Examiner's findings are not supported by substantial evidence when he relies on an isolated remark in a medical report before him. Park v. Celebrezze, supra. Substantial evidence does not sustain a Hearing Examiner's decision when it is based almost exclusively on a medical report of a physician making a single examination of a claimant, when two doctors who treated him over a period of years stated that he was totally incapacitated. Sebby v. Flemming, 183 F.Supp. 450 (D.C.Ark.). "The medical evidence that Cyrus suffers from a disability is uncontradicted. The only conflict is as to the extent of his residual capacity. Normally, it is for the Secretary and not the courts to resolve conflicts in the evidence. * * * But where the Secretary places reliance upon one portion of the testimony to the disregard of overwhelming evidence to the contrary, the Secretary's conclusion may not stand." Cyrus v. Celebrezze, 341 F.2d 192 (C.A.4).

With regard to appellant's employment with the Keidel Supply Co., Inc. from September 9, 1959, to March 8, 1960, his eyesight was so deteriorated that in carrying out a light job of sweeping and dusting, he could not see whether or not he had removed the dust from the floors or various machines. He, himself, testified to his bad eyesight. Dr. Dienger, in an ophthalmological examination, performed at the request of the Secretary, said that he had examined appellant, who had a history of decreasing vision since 1949; that he had had an accident resulting in a scar on the cornea; and that he also suffered from a degeneration due to injury to the inside of the eye, as well as inflammation of the layers about the retina. Mr. Keidel finally told appellant that he just could not use him, stating: "You can't lift; you can't see how to sweep the floor." If appellant's spinal condition disabled him from heavy work, that condition, coupled with his lack of eyesight, disabled him from any so-called light employment that the Social Security Administration could conjure up. It is obvious that, as Mr. Keidel stated, "appellant was kept on out of sympathy. * * * His work was terminated under mutual consent. He couldn't do the job and we parted company on a friendly basis."

Under the circumstances above outlined, the employment of appellant by Mr. Keidel cannot be considered "substantial gainful activity" as, admittedly, he could not do the work and, although he received weekly payments, it was only, as his employer said, on account of sympathy for him.

The above effectively disposes of the Secretary's contention that appellant demonstrated an ability to engage in substantial gainful activity during the time he was employed by Mr. Keidel from September 9, 1959, to March 8, 1960, and that he, accordingly, failed to establish the presence of the required disabilities on or before September 30, 1958, the date when appellant last met the special earnings requirement of the Social Security Act. It should be mentioned that the Hearing Examiner, on the first hearing, found that appellant had met the special earnings requirement on the date of his injury in June 1958, which is in accord with appellant's claim at that time and at the present time.

Appellant actually filed his application for disability benefits on June 19, 1959, claiming that he became disabled in June 1958 because of a "slipped disc of lower back bad eyesight arthritis — legs and shoulders", and on July 13, 1959, he further filed an application to establish disability, setting forth the same disabilities as in his June 1958 application, and adding that he "can't stay on feet. Very painful to work move or do anything." He further stated that his last medical examination had been made by Dr. Charles Stacy in July 1958.

On July 29, 1959, Dr. Charles Stacy rendered a medical report in which he stated that appellant's injury occurred in July 1958, and he became unable to work at that time. Practically all of the medical evidence tends to substantiate appellant's contention as to the time of his injury; and, on August 22, 1958, Dr. Stacy further reported that he had treated appellant "for a period of time," and on June 15, 1958, another X-ray had been taken, showing hypertrophic spurring sacralization of lumbar vertebrae and that, undoubtedly, appellant was disabled. All of the foregoing is proof of the fact that appellant was suffering from medically determinable impairments of such severity as to preclude all performance of any substantial gainful activity from June 1958 forward, and that such impairments were still present at the time of his application in June 1958 — contrary to the Hearing Appeals' unsubstantiated finding that because of appellant's employment with Keidel, he showed an ability to engage in substantial gainful activity subsequent to the date of expiration of his special insured status on September 30, 1958.

There was no substantial evidence of what appellant could do or what employment opportunities there were for a man who could do only what he could do.

In Butler v. Flemming, 288 F.2d 591 (C.A.5), the court stated that the record in that case failed to disclose that there was any indication of any specific work less exacting within claimant's residual capacity and reasonably available as a prospective source of employment in the general area where he lives, and that this was the test as to whether there was any work available which the claimant was able to perform. See to the same effect Massey v. Celebrezze, 345 F.2d 146 (C.A.6).

There was the evidence of the "Vocational Counselor," who has become a stock figure in these cases, and who, as usual, availed himself of the U. S. Dictionary of Occupational Titles to point out what work was available, but his testimony was no more impressive than that of the Vocational Counselors in Massey v. Celebrezze, supra, and Cyrus v. Celebrezze, 341 F.2d 192 (C.A.4); and his evidence carried no weight. As an instance, the Vocational Counselor felt that among the types of light work which appellant could perform was that of a night watchman — a rather peculiar occupation for a man whose eyesight was so poor he could not hold down a job of sweeping or dusting machines because he could not see whether or not the dust was removed. Moreover, the Vocational Counselor thought appellant could do the work of a flagman, except for prolonged standing. When asked by appellant's counsel whether it would affect appellant's abilities to perform such jobs, while he was taking the heavy dosages of drugs and sedatives, already referred to, the Vocational Counselor's answer was that "for some employers, this would make a difference, I suspect, for others I doubt that it would however." Other jobs which the Vocational Counselor suggested for appellant were equally absurd — armature winding, tool grinding, assembling and repair of electrical equipment, spray painting, "a kind of bench work in some industries," machine tending, "the kind of thing where the worker, the employee, trouble shoots the machine, keeps an eye on it to see that everything is running properly." (Emphasis supplied.)

No one, however, contended that appellant could do the light job of sweeping and dusting, from which he had been discharged by the Keidel Company because of his physical disabilities and his failure to see what he was doing, although both appellant and the Keidel Company wanted him to continue if he could do the work, and the Hearing Examiner impliedly admits this.

The Hearing Examiner found:

There is no substantial evidence that appellant could perform any of the jobs mentioned by the Hearing Examiner. Appellant has no demonstrated residual abilities. The evidence of Dr. Auvenshine, as we have shown, is without any weight whatever, as bearing upon the work appellant can do. There must be evidence to show the reasonable availability of jobs which this claimant is capable of performing in the general area where he lives. There was no such evidence.

It is to be remembered that appellant, coming from a mountain village in Kentucky, worked in that state as a boy and as a young man; then went to Tennessee seeking and finding work; and afterward to Kansas, where he also secured employment. Subsequently, he sought employment in Ohio, which he found, but could not continue because of his disabilities. He afterward went to the Rehabilitation Center and the Good Will Industries in Ohio for employment. They stated that appellant would have been willing to work if they could have done anything for him but they were unable to find any employment. They said he was interested in getting some kind of work; and the Rehabilitation Center told him that they had no job open but would keep him in mind; but he never heard from them again.

In Lightcap v. Celebrezze, 214 F.Supp. 209 (D.C.W.C.Pa.), the court, in considering a claim for disability benefits under the Social Security Act, and reviewing the action of the Secretary to ascertain whether there is any substantial evidence to support it, said:

The proof of Mr. Miracle's disability is substantiated by the great mass of the evidence, and evidence to the contrary is lacking in substance.

The review of cases for disability benefits under the Social Security Act is onerous from many aspects. The case before the Hearing Examiner is heard informally. This means that there is practically no examination or cross-examination of any witnesses, except the claimant himself, usually a man whose life has been one of hard labor, and with little education; and, sometimes, a Vocational Counselor. The record, for the most part, consists of letters and written statements regarding the disability claimed, the extent of it, or the lack of it. Many of these statements consist of official printed forms of applications and reports filled in, in the handwriting of various individuals; and their reproduction in the record often requires laborious decipherment. These records call for searching investigation by the district courts, and further searching investigation by appellate courts.

In Scott v. Celebrezze, 241 F.Supp. 733, 736, (S.D.N.Y.), Judge Feinberg emphasized how searching must be the review by the courts of the action of the Secretary, and mentioned that in the cases reported in volumes 227-236 of Federal Supplement, the Secretary's decision was upheld only 27 times, but reversed or remanded 47 times; and in this court, during the past five years, the Secretary's decision was upheld 5 times and reversed 12 times, which again shows how careful and searching must be the review.

Because of the errors heretofore pointed out, and because the findings of fact and conclusions are not supported by substantial evidence, the judgment is reversed and the case is remanded to the Secretary of Health, Education and Welfare with directions that appellant be granted a period of disability and disability benefits in accordance with the Social Security Act.