Ignatius J. Klug v. Casper W. Weinberger, Secretary of Health, Education and Welfare , 514 F.2d 423 ( 1975 )

ROSS, Circuit Judge.

This is an action under 42 U.S.C. § 405(g) for disability benefits alleged to be due Ignatius J. Klug under sections 216(i) and 223 of the Social Security Act, 42 U.S.C. §§ 416(i) and 423. . Klug’s claim was refused by the Social Security Administration, and after he had exhausted all of his administrative remedies, including a hearing before an administrative law judge and an adverse decision from the Appeals Council, he brought this action in the district .court. Both Klug and the Secretary moved for summary judgment, and the court granted it for the Secretary. We reverse and remand with directions to enter judgment for Klug.

Klug claims that he suffers from continuing severe headaches which started occurring after October 13, 1970, when a rock hit him just above his right ear and knocked him out for a short period. These headaches allegedly keep him from engaging in an occupation, since any exertion or rough movement increases their intensity. The administrative law judge, whose findings were adopted by the Appeals Council, found that Klug was not suffering from a disability as that word is defined in section 223(d) of the Act, 42 U.S.C. § 423(d). Klug challenges this finding; and the issue is, therefore, whether or not Klug has a disability as defined by the statute.¹

This Court originally set out the legal standards to be used in this type of case in Celebrezze v. Bolas, 316 F.2d 498, 500— 501 (8th Cir. 1963), and recently reiterated them in Garrett v. Richardson, 471 F.2d 598, 599-600 (8th Cir. 1972). Those standards are:

(a) the claimant has the burden of establishing his claim; (b) the Act is remedial'and is to be construed liberally; (c) the Secretary’s findings and the reasonable inferences drawn from them are conclusive if they are supported by substantial evidence; (d) substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (e) it must be based on the record as a whole; (f) the determination of the presence of substantial evidence is to be made on a case-to-case basis; (g) where the evidence is conflicting it is for the Appeals Council on behalf of the Secretary to resolve those conflicts; (h) the statutory definition of disability imposes a three-fold requirement (1) that there be a 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], (2) that there be an inability to engage in any substantial gainful activity, and (3) that the inability be by reason of the impairment; (i) such substantial gainful activity is that which is both substantial and gainful and within the claimant’s capability, realistically judged by his education, training, and experience; (j) the emphasis is on the particular claimant’s capabilities and on what is reasonably possible, not on what is conceivable; and (k) it is not the duty or the burden of the Secretary to find a specific employer and job for the claimant but, instead, some effort and some ingenuity within the range of the claimant’s capacity remains for him to exercise. (Footnote omitted.)

Of special significance to the instant case is the test regarding the three-fold requirement for a determination of disability:

(1) a medically determinable physical or mental impairment which has or will last at least twelve months, (2) inability to engage in any substantial gainful activity, and (3) the inability must be by reason of the impairment.

Yawitz v. Weinberger, 498 F.2d 956, 960 (8th Cir. 1974).

The administrative law judge found that Klug suffers an actual impairment in the form of “a headache condition due to psychogenic factors.” Likewise, there is no dispute over the fact that if Klug is unable to engage in any substantial gainful activity, it is because of the headaches. Thus, requirements (1) and (3) have been fulfilled. However, the administrative law judge also found that Klug’s impairment is not of such a “degree of severity as to substantially reduce his capacity to perform ‘significant functions’.” Therefore, he held that Klug did not meet requirement (2) for a determination of disability.

The focus of our inquiry, then, is whether there is substantial evidence in the record as a whole to support this latter finding. In the context of the Social Security Act substantial evidence has been defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting from Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). And in making this inquiry we are mindful that, while we are not to try the claim de novo, neither should we abdicate our function to carefully scrutinize the entire record in conducting the review. Yawitz v. Weinberger, supra, 498 F.2d at 957; Ainsworth v. Finch, 437 F.2d 446, 447 (9th Cir. 1971).

Klug, born in 1919, was 52 years of age at the time of the hearing. He is married, has children, and his wife is employed outside the home. Klug quit school in the eighth grade when he was 14. Since that time he has worked as a farmhand, a maintenance man in a state park and a heavy equipment operator.

Klug’s injury occurred in October, 1970, when he was working as a caterpillar tractor operator at a gravel pit. Apparently he had gotten off his tractor to move a rock which was in his path when another rock fell out of the bucket on the machine and hit him just above the right ear. He was knocked unconscious, was taken to a hospital, treated and released. The severe headache started shortly after that, emanating from the spot above his ear where he had been hit. Klug attempted to return to work for a few days after the accident. However, the headaches became so severe that he could neither concentrate nor focus his eyes. Finally his doctor advised him to not work, and he has not done so since.

The medical evidence reveals that neither the physician who has treated Klug locally nor the doctors who have examined him at the Mayo Clinic have found any organic physiological cause for the headaches. However, Dr. Robert M. Morse, a staff psychiatrist at the Mayo Clinic, examined Klug in September, 1971, and testified at the hearing to the effect that the headaches were psychological in origin and that they were unconscious phenomena caused primarily by anxiety. Dr. Morse stated that his clinical impression was that Klug had a traumatic neurosis and that there was evidence of depression, pessimism, and thoughts that life was not worth living. Further, and importantly, Dr. Morse testified that Klug’s physical complaints were real and that he does suffer head pain. Also, tests conducted at the Mayo Clinic indicated that Klug is a neurotic type of individual and not a malingerer. In short, he is not consciously manufacturing the headaches in order to avoid having to work. Based on his examination and the various test results Dr. Morse was of the opinion that Klug was disabled from working because of its effect upon the headaches in increasing their intensity.

After the administrative law judge rendered his decision in April, 1972, Dr. Morse sent a letter dated August 1, 1972, to Klug’s attorney. This letter became a part of the administrative record and was considered by the Appeals Council in its review of the case. This letter confirmed Dr. Morse’s prior evaluation of Klug’s headache problem. It reveals that Klug was treated from February 21 through March 10, 1972, at the Intensive Psychotherapy Center of the Mayo Clinic, but there was “little improvement in this situation.” Dr. Morse reported that he had exhausted all the measures he was aware of and had been unable to relieve Klug’s headache and neurotic problems or to “rehabilitate him to substantial gainful employment.” He concluded that after the failure of the intensive treatment “this is even more evidence then for significant and probably permanent disability as a result of the head injury.” The doctor felt that further efforts at rehabilitation would “probably meet with failure.”

Klug himself testified with regard to the severity of the headaches and their disabling effect that he had a headache virtually all the time; that when he moves around or moves his hands they become worse; that he wakes up at night with headaches; that no medication he has taken has given significant relief from the pain; that riding on rough roads aggravates the headaches; and that if he is quiet and rests the headaches are not so bad. He did state, however, that he drives or walks a few blocks every day to pick up mail and purchase groceries; that he drives around 15 miles every week to visit his daughter; that he attends church around three times a month; and that every evening before supper he visits a tavern for a beer and stays and socializes for about an hour. Klug, of course, considers the headaches disabling.

Mrs. Ruth Klug testified and corroborated her husband’s testimony as to his inability to work around the house for any extended period of time. She also stated that he sometimes gets up at night and that he has become bored and somewhat listless since the onset of the headaches.

There was no evidence from a vocational expert and no indication in the record of any type of substantial gainful activity in which Klug might engage given his impairment. Therefore, the only conclusion which the administrative law judge could have reached was that Klug could continue to perform his old job as a heavy equipment operator. Otherwise the decision would be in conflict with the majority rule that

once a claimant demonstrates that his impairment is so severe as to preclude him from performing his former work, the burden shifts to the Secretary to prove that there is some other kind of substantial gainful employment which the claimant could perform.

Timmerman v. Weinberger, 510 F.2d 439, 443 (8th Cir. 1975). See Stark v. Weinberger, 497 F.2d 1092, 1097-1098 (7th Cir. 1974).

However, the foregoing review of the record reveals absolutely no substantial evidence to support such a conclusion regarding Klug’s ability to perform at his old job. All the evidence from Dr. Morse points to a psychosomatic impairment which is totally disabling. And, of course, the Social Security Act defines “disability” in terms of a mental, as well as a physical, impairment. Social Security Act § 223(d)(1)(A); 42 U.S.C. § 423(d)(1)(A). Additionally, all the testimony of Klug and his wife indicates that Klug would be unable to resume his old occupation.

The administrative law judge chose, however, to ignore this overwhelming. evidence and concentrated instead on two factors he thought important." First, he stressed that Klug is not dis- j abled from engaging in substantial gainful activities because he is capable of driving and walking short distances, can carry packages and is capable of socializing. This Court rejected this type of reasoning in a case very similar to the instant one, Yawitz v. Weinberger, supra, 498 F.2d at 960. See Timmerman v. Weinberger, supra, 510 F.2d at 442. As in Yawitz, the administrative law judge’s emphasis on this evidence of mobility totally ignores all of the other evidence in the record regarding the effect of such activity on Klug’s headaches. When such reliance has been placed on one portion of the record to the disregard of overwhelming evidence to the contrary, the case must be decided against the Secretary. Yawitz v. Wein-berger, supra, 498 F.2d at 960; Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964).

Second, the administrative law judge relied heavily on the early medical reports of physicians who had examined Klug for a physiological cause for the headaches. However, these doctors were not diagnosing the headaches in terms of a mental impairment, and their conclusions that there was no physical reason Klug could not return to his job were based solely on the negative organic findings. Later, when a psychological basis for the headaches was found these earlier medical conclusions lost their validity and should not have been considered. The administrative law judge’s reliance on them is misplaced and conflicts with his own statement that he “recognizes that the negative organic situation does not rule out a psychological condition.”

The expert medical testimony of Dr. Morse was, therefore, uncontroverted by substantial evidence; and the Secretary may not arbitrarily choose to ignore it. Hassler v. Weinberger, 502 F.2d 172, 178 (7th Cir. 1974). Since there was no substantial evidence to counter Dr. Morse’s prognosis of total disability, the Secretary’s decision cannot stand. Id.

The appellant Klug met his burden of proof in the administrative proceedings and established that he was disabled within the meaning of the Social Security Act. There is no substantial evidence to support the denial of disability bene-, fits. Therefore, we reverse the judgment of the district court and remand this case with directions to grant summary judgment for the plaintiff.

1 . Section 223(d) of the Act, 42 U.S.C. § 423(d), provides:

(d)(1) The term “disability” means—

(A) 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 .

(2) For purposes of paragraph (1)(A)—

(A) an individual . shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.