Irene C. Jenkins v. John W. Gardner, Secretary of Health, Education and Welfare , 430 F.2d 243 ( 1970 )

O’SULLIVAN, Circuit Judge.

We consider the appeal of Irene C. Jenkins from disallowance of her claim to social security benefits. Mrs. Jenkins was 57 years old in April of 1967— the time of the hearing in this case. She had worked for many years for the Union Carbide Company as a salad maker in the cafeteria. Her husband is also employed there; they have no dependent children. Appellant claims that because of her disabilities¹ she quit work in April of 1966. In September of that year she retired from Union Carbide at a monthly pension of $57.00.²

Application for Disability Insurance Benefits filed June 27, 1966, describes the disabilities upon which she relied as “Diabetes, Ulcers, Bursitis,” and stated that she had become disabled on April 1, 1966. Initially, the Secretary, after reviewing what was before him, denied her application. Upon request for reconsideration, the Social Security Administration reviewed the material before it. The Department on February 17, 1967, advised Mrs. Jenkins,

“You stated that you became unable to work in April 1966, at age 55, because of diabetes, ulcers and bursitis. Our records show that you have a sixth grade education and worked as a salad maker in a cafeteria. “The medical evidence includes reports from your treating physican, hospital records and the results of special examinations which were arranged for you. This evidence reveals that you have a history of diabetes and ulcers. However, it is shown that these conditions are controlled by diet and medication and the state of your nutrition is not disturbed. Although you have recurrent attacks of bursitis, the evidence establishes that this condition responds to therapy and does not seriously limit your ordinary activities. We realize that you may experience occasional pain and discomfort. However, the evidence does not support a conclusion that your condition is so severe as to prevent you from performing your usual work. Therefore, the denial of your claim is affirmed.”

Upon her request, a hearing was had before a trial examiner at which appellant was represented by counsel. Included in the record made in considering appellant’s application were reports of her hospitalization on several occasions, reports of doctors who had examined her for the Secretary, and reports of her own treating doctor. Of the doctors who examined plaintiff and expressed views as to whether she was disabled, the following were the observations of such of them as examined her at the request of the Secretary.

On September 7, 1966, Dr. I. Reid Coll-mann concluded:

“Recommendations: It would appear that this patient does have cholelithia-sis proven by previous x-rays, but this situation could be modified by corrective surgery. Also her diabetes and ulcer situation should be able to be managed by good medical therapy. Following these corrections we feel that this patient is not restricted but probably has some degree of restriction until that time." (Emphasis supplied.)

Dr. R. A. Obenour, on January 23, 1967, stated:

“Minimal arteriolar schlerosis was noted on funduscopic examination. She may have some bronchitis related to her smoking but the extent of this is not thought to be severe. I believe that some improvement could be expected from weight reduction, continued diabetic control, cessation of smoking, and if necessary more specific treatment for her chronic bronchitis. On the basis of the present findings she might be limited by her pulmonary impairment from performing heavy work but would not be limited for performing moderate or light work on a sustained basis. (Emphasis supplied.)

Walter C. Shea, who had been her treating physician for some years before the present proceedings, said on December 5, 1966:

“At times she is ambulatory with limitation of employment due to chronic and persistent illness.³

“She is unable to hold down any job which requires much physical labor for any prolonged period of time.”

Finally, on May 7,1967, Dr. Shea stated:

“Due to multiplicity of complaints I believe Mrs. Jenkins has shown over the past two years I believe her absenteeism rather marked and she is an unreliable employee.

“I believe she can be gainfully employed for short periods of time if she can find employment under these circumstances.”

Mrs. Jenkins had a multiplicity of complaints, suffering from bronchitis, diabetes, chronic overweight, bursitis and ulcers. Her weight had varied. At the time of the hearing she was 5' 6" tall and weighed 185 pounds. She had once reached a weight of 190. She considered that her proper weight was 160 pounds, although about four years prior to the hearing she weighed 139 pounds. She testified at the hearing that she had then quit her diet, finding it too burdensome. Control of her diabetes and ulcers was impaired by her failure to follow the advice of «doctors. She was then smoking about one package of cigarettes every two days, although she had been advised to quit or to cut down on her smoking to control her bronchial complaints.

Despite her ailments, all of the doctors, including her own treating physician, expressed the view that appellant could engage in moderate or light work, albeit, according to Dr. Shea, her reliability was questionable as a result of her absenteeism. The vocational counselor, a University of Tennessee professor, expressed the opinion that light work within appellant’s limited competence was available within the area of her place of residence. He testified that such light work included employment as a salad maker, cashier, or nurse’s aid. The trial examiner concluded as a matter of factual finding,

“The examining physicians, including claimant’s own treating physician, are unanimous in their findings that even though the claimant does not have the residual capacity to engage in productive substantial gainful activity requiring physical exertion or labor for any prolonged period of time, neither of them rule out claimant’s residual capacity to be gainfully employed in performing moderate or light work on a sustained basis.”

and in another style said:

“Upon the basis of all the evidence of record in this case, and the conclusions and deductions made from such evidence, the hearing examiner finds that the claimant has failed to present sufficient evidence to establish that she has an impairment or impairments in combination severe enough to preclude her from engaging in any type of substantial gainful activity for a continuous period, without interruption, of not less thhn 12 months’ duration and that, therefore, her application is without merit.”

No question is raised as to the competence, integrity or credibility of the medical witnesses Collmann and Obenour who examined appellant for the Secretary. If there is some degree of conflict between Dr. Shea and these doctors, we are not persuaded that we should ignore their testimony or fault the examiner for relying upon their views. Lane v. Gardner, 374 F.2d 612, 616 (6th Cir. 1967).

The burden of proving the disability which would entitle an applicant to social security benefits is upon such applicant. Henry v. Gardner, 381 F.2d 191 (6th Cir. 1967); Erickson v. Ribicoff, 305 F.2d 638 (6th Cir. 1962); 42 U.S.C. § 423(d) (5). The disability which must be shown is defined in Section 223(d) (1) of the Act as,

“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 which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d) (D.

This Circuit had adhered to a Court made rule that if an applicant has established inability to engage in his or her regular employment, but has some residual capacity for light work, the burden is on the Secretary to show what light work the applicant can do and that such light work is being performed within reasonable proximity to the applicant’s place of residence. Massey v. Celebrezze, 345 F.2d 146 (6th Cir. 1965); Hall v. Celebrezze, 314 F.2d 686 (6th Cir. 1963); May v. Gardner, 362 F.2d 616 (6th Cir. 1966). Whatever the present applicability of such rule, the Secretary’s burden was met in this case.

We affirm the District Judge who granted the Secretary’s motion for summary judgment upon his view that the findings of fact of the Secretary were supported by substantial evidence and were binding upon him. We are of a like view. 42 U.S.C. § 405(g); Nelson v. Gardner, 386 F.2d 92, 94 (6th Cir. 1967).

We are constrained, however, to say this much more, limited to plaintiff’s “claim” of impaired eyesight. Appellant did not claim impaired eyesight in her application for benefits. Eye trouble appeared first as a result of some questions put to her by the trial examiner. We discuss it only because the dissent places great weight on it.

In her original application for benefits, she described her disabilities as “diabetes, ulcers, and bursitis,” never once mentioning poor eyesight. The report of disability interview merely cheeks off a box denoting that appellant displayed some difficulty with her eyesight, but otherwise deals at length only with her other complaints. The record made contained reports of Mrs. Jenkins’ hospitalization on several occasions. No mention of eye trouble is contained in any of these — the last relating to a period from April 22, 1966, the date she gives as the beginning of her total disability.

A total of ten doctors who had examined appellant on various occasions before and after the time of the claimed commencement of her disabilities,- filed written reports. These included the several doctors who would see her at a hospital visit. In one report dated January 23, 1967, there is a notation “vision reduced in both eyes for about one year.” In another of these reports, the examining doctor includes in his general report of physical examination, “Pupils are equal, react to light and accommodation * * *. f Fundoscope examination is negative.” Other than the foregoing, the doctors’ reports make no reference to eye trouble. Her own Dr. Shea, upon whom she had long relied for treatment and upon whom she places chief reliance, makes no mention whatever of impaired eyesight as one of his patient’s difficulties.

Mrs. Jenkins testified at the oral hearing on April 21, 1967. She was examined by her attorney and then by the trial examiner. On examination by her own attorney, she was asked to give the reasons for her inability to continue working. She did not mention eye trouble.⁴ Mention of it appeared only in the resumption of questioning by the trial examiner.

“Q. Why don’t you drive?

A. I can't see. Lines runs together and I can’t see which way I’m going. I can’t judge my distance. My eyes just — letters seems like it just gets foggy. I just don’t try it.”

She then went on to say that her eye troubles persisted even when she wore her glasses; that she did not read much at home “without its big reading and big print.” She then answered that a Dr. Millis had checked her eyes.

At the conclusion of the hearing the trial examiner suggested that appellant’s counsel obtain a report from Dr. Millis. The hearing was then adjourned to May 9 to hear testimony of a vocational counselor. On that date appellant’s attorney produced a letter from the optometrist, Dr. Fred B. Millis, O.D., dated at Lenoir City, Tennessee, Mrs. Jenkins’ place of residence, advising of an examination of Mrs. Jenkins on May 4, 1967. The report was as follows:

“Re: Irene C. Jenkins.

On May 4, 1967 I examined the vision of Mrs. Irene Jenkins of Route 4, Lenoir City, Tenn. This is a record of my findings.

Vision without glasses:

Rt. Eye 20/200 Lt. eye 20/200 Both 20/200

Vision with glasses:

Rt. eye 20/20 Lt. eye 20/30 Both 20/20

Stereopsis is low; there is a definite vertical deviation in the alignment of her eyes resulting in double vision. The eye pressure was within normal range. Due to the vertical deviation and the inability to see equally as clear out of both eyes, she suppresses vision in her right eye.

She has a record of variable blood pressure as well as a diabetic condition. Each of which makes it almost impossible to stabilize her visual problem.

I have been examining Mrs. Jenkins’ vision since July, 1963; during this period of time I have observed a general deterioration in her vision.

Sincerely,

/s/ Dr. Fred Millis, O.D.”

In this report Dr. Millis expresses no opinion as to what, if any, effect Mrs. Jenkins’ eye condition would have upon her ability to work. He states that with glasses Mrs. Jenkins’ combined vision of both eyes would be 20/20. To the layman, 20/20 vision is normal vision. The intendment of the optometrist’s other recitals, if of relevancy here, is not expressed. While “double vision” sounds ominous, standing alone it gives no idea of the import or frequency of such disorder. What treatment might be employed to alleviate it is not set out. Certainly this report does not justify an assertion that the lady is “nearly blind”.

This report was received in evidence with the examiner's comment that “it [the report] will be received in evidence * * * and the vocational witness, of course, will want to examine it as part of the medical evidence in this case.” Although the examiner made no specific reference to the optometrist’s report in reciting the difficulties and disabilities that were disclosed by the testimony and record, we assume that the vocational counselor had examined the optometrist’s report prior to his conclusion that Mrs. Jenkins could be gainfully employed. On cross-examination by appellant’s attorney, the vocational expert did answer that nurses aides and cashiers would require sufficient eyesight to do the customary duties of that work — reading a thermometer or the numbers on a cash register, taking blood pressure and cheeking pulse.⁵

At the conclusion of the May 9 hearing, the record was kept open to allow appellant’s counsel to obtain further medical evidence from Dr. Shea. A final report from Dr. Shea, Mrs. Jenkins’ own doctor, dated May 17, 1967, was received. Although the optometrist’s report was then available, Dr. Shea’s report makes no mention whatever of impaired vision. As set out above, he concludes his final letter:

“I believe she can be gainfully employed for short periods of time if she can find employment under these circumstances.”

At the same time as the filing of Dr. Shea’s report, Mrs. Jenkins’ attorney filed her affidavit which for the first time included a claim that impaired eyesight was a contributing element to her disability. She said, among other things:

“I have cut myself on these machines on occasion, and to a certain extent they are dangerous for a person with my eyesight, and with my other ailments, which cause me to bleed more easily, to black out, etc.”

The trial examiner’s decision considers the late claim of reduced eyesight specifically, but concludes, as previously quoted, that:

“Upon the basis of all the evidence of record in this case, and the conclusions and deductions made from such evidence, the hearing examiner finds that the claimant has failed to present sufficient evidence to establish that she has an impairment or impairments in combination severe enough to preclude her from engaging in any type of substantial gainful activity for a continuous period, without interruption, of not less than 12 months duration and that, therefore, her application is without merit.” ⁶

The trial examiner found that appellant did not meet her burden of proof. The Secretary joined in that conclusion. Neither the District Court nor this Court can strike down these conclusions unless it can be said that they were without support by substantial evidence. King v. Celebrezze, 341 F.2d 108, 109 (6th Cir. 1965); Hall v. Celebrezze, 340 F.2d 608 (6th Cir. 1965); 42 U.S.C. § 405(g). The mere belated mention of impairment of eyesight, without evidence to support a claim that it disabled appellant from gainful employment, will not do to meet her burden of proof, either before the Secretary or the courts on review.

Judgment affirmed.

1 . Her husband testified that the burden of her work was in part responsible for appellant’s disabilities. He said that after she left her job, Union Carbide had to hire about six people to replace her.

2 . The record does not warrant the statement that plaintiff was “awarded her full retirement benefits for total disability.” (Emphasis supplied.)

3 . Despite these chronic illnesses, Mrs. Jenkins had a good earnings record up to April 1, 1966. For the 25 quarters after 1959, her average quarterly earnings were $1,082.51.

4 . After testifying at length about her difficulties without any mention of eye trouble, the following testimony was given, under questioning by her own counsel:

“Q. Did you have any other problems about doing your work other than your legs and your back?

“A. Well, no, not nothing but through my arms and my shoulders. Well, they got, you know, with that bursitis and stuff and I couldn’t lift no pans or anything up over my head; and we had to lift them and put them up in a box; and I couldn’t lift them up, had to have help on that.”

We are not convinced that failure to rely on eye trouble was the fault of appellant’s lawyer. The entire record is persuasive of appellant’s belated reliance on it as a disability.

5 . The vocational counselor did not say that plaintiff needed “unusually good vision” for this work.

6 . The hearing examiner did not say that “claimant’s deteriorated visual impairment results from her negligent failure to remedy her diabetes.”

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