Luther P. Mitchell v. John W. Gardner, Secretary of the Department of Health, Education, and Welfare ( 1966 )

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 §§ 216 (i) and 223(a) of the Social Security Act, as amended, 42 U.S.C. §§ 416(i) and 423(a). Appellant’s application was denied and, after exhaustion of his administrative remedies, the instant action was filed. Thereafter, the Government filed a motion for summary judgment. On March 24, 1965, the Legal Aid Society entered its appearance for appellant and was, by stipulation, permitted to reply to the Government’s motion. After hearing on the motion, summary judgment was entered in favor of appellee Secretary; and this appeal followed.

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 would 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 appeared controllable with medication, which at the time of the hearing was four capsules of dilantin with phenobarbital daily. Dr. Hantsoo further testified that appellant’s medical records did not indicate any seizures after November 20, 1963. The only evidence to the contrary was appellant’s uncorroborated testimony that, while in his cell, he had had further seizures, which had been observed by two or three other inmates and some of the guards. The hearing examiner, who had thoroughly reviewed the clinical records and reports from various penal institutions and from St. Elizabeths Hospital, including one in which appellant characterized himself as a “chronic liar,” and who observed appellant as he testified, chose to believe the reports and the testimony of Dr. Hantsoo.²

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 appellant’s earnings may have been while he was employed, his earning power must be measured by his age, education attainment, training experience, and mental and physical capacity. It is only with the last factor that the Secretary concerned himself, and the record supports his finding that the mental and physical condition of which appellant complains had not precluded his being gainfully employed before his arrest in 1961 and that “there is no acceptable evidence that [the seizures] have so increased in number over the time he was employed to presently disable the claimant.” It would be unreasonable to impose upon the Secretary the burden of setting forth job opportunities available to appellant when there would appear to be no reason why, with continuing medication, he could not return to his former work when he is released. Many people carry on gainful activities while using daily medication to control otherwise disabling conditions. Diabetics are persons who exemplify this fact, as do epileptics also. To require this of appellant is not without the spirit of the Social Security Act; otherwise, all of those who by the use of medicines are enabled to work would be entitled to benefits under the Act. Had that been the intention of Congress, it would not have established the present system of screening applications for those benefits.

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 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.” 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 can 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 Ker-ner’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 doubt here as to the frequency and severity of appellant’s seizures has been resolved against appellant and, as in Ker-ner, the Secretary’s decision is conclusive even though here as there, the administrative agency proceeded on the final assumption that the claimant was suffering from some medically determinable condition.

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.

1 . Appellant was convicted of robbery in 1962 and received a sentence of five to fifteen years. On appeal, his conviction was reversed and the case remanded for a new trial. Mitchell v. United States, 114 U.S.App.D.C. 353, 316 F.2d 354 (1963). Thereafter, appellant pleaded guilty to the lesser included offense of attempted robbery and, on October 11, 1963, was sentenced to one to three years. In addition, appellant is wanted in Pennsylvania for burglary, larceny, receiving stolen goods, and conspiracy. On October 21, 1965, the Chief Judge of the District Court for the District of Columbia ordered appellant’s return to that state. An appeal in forma pauperis from the order dismissing appellant’s petition for a writ of habeas corpus challenging the rendition order is now pending before this court as Mitchell v. Clemmer, et al., No. 19, 742.

2 . With regard to appellant’s claim that he had had seizures which were not brought to the attention of the medical authorities at the jail, the bearing examiner stated:

“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.”

3 . Ferenz v. Folsom, 237 F.2d 46 (3d Cir. 1956), cert. denied, 352 U.S. 1006, 77 S.Ct. 569, 7 L.Ed.2d 551; Walls v. Celebrezze, 215 F.Supp. 414 (S.D.Tex.1963).

4 . Pursuant to authority conferred by 42 U.S.C. § 1302, the Secretary promulgated the following regulation:

“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) (hi).

5 . Social Security Administration “Earnings Certificate.” The certificate shows that appellant earned $1934.86, $1909.03, $1821.90, $1681.98 and $1548.32 for the years 1957-1961, respectively. He was arrested and has been in confinement since August 1961. The record further shows that for a period of twelve years prior to his arrest appellant worked as a cook “off and on” and as a barber part time, a trade be learned while at Lewis-bnrg Penitentiary. It is quite clear that upon his release he could, better than previously, obtain employment which, with the use of prescribed medicines, would be steadier than before.

6 . The Secretary also found that if appellant in fact had a chronic brain syndrome, it was of a minor degree and did not significantly impair his ability to engage in gainful employment.