Curtis H. Smith, Agu-Fj-Nqfa v. Richard S. Schweiker, Secretary of Health and Human Services , 646 F.2d 1075 ( 1981 )

JOHN R. BROWN, Circuit Judge:

Appellant, Curtis H. Smith, attacks a decision of the Secretary of Health and Human Services (Secretary) terminating as of November 1977, his Social Security Disability Insurance Benefits and Supplemental Security Income pursuant to 42 U.S.C.A. § 405(g), as amended, and 42 U.S.C.A. § 1383(c), as amended. These benefits had previously been awarded Smith based upon a finding of “disability” which had commenced on May 23, 1974, following a car/tractor accident in which Smith had sustained serious neck and back injuries. The decision of the Administrative Law Judge (ALJ) which terminated Smith’s “disability” status became the final decision of the Secretary following what was referred to as a “de novo” consideration of additional evidence by the Appeals Council in December of 1978. Smith sought judicial review in the District Court on January 25, 1979. On a motion for Summary Judgment, the District Court affirmed the cessation of Smith’s benefits finding that (i) the proper legal standards had been employed by both the ALJ and Secretary and (ii) there was substantial evidence to support the final decision. The only real issue before this Court is whether substantial evidence reading the record as a whole supports the Secretary’s final decision terminating Smith’s disability as of November 1977. We hold it does not and reverse and remand.

Scrubbing Up — Our Standard Of Review

Our standard of review is both provided for and limited by § 205(g) of the Social Security Act, 42 U.S.C.A. § 205(g), which states that “[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.. . . ” Fruge v. Harris, 631 F.2d 1244 (5th Cir. 1980); Epps v. Harris, 624 F.2d 1267 (5th Cir. 1980); Fortenberry v. Harris, 612 F.2d 947 (5th Cir. 1980); Newborn v. Harris, 602 F.2d 105 (5th Cir. 1979); Chaney v. Califano, 588 F.2d 958 (5th Cir. 1979); Young v. Califano, 581 F.2d 549 (5th Cir. 1978); Mims v. Califano, 581 F.2d 1211 (5th Cir. 1978). Of course, no similar presumption of validity attaches to the Secretary’s conclusions of law, including determination of the proper standards to be applied in reviewing claims. We are aware, of course, that we may not reweigh the evidence or substitute our judgment for that of the Secretary’s. See Rhynes v. Califano, 586 F.2d 388, 390 (5th Cir. 1978); Laffon v. Califano, 558 F.2d 253 (5th Cir. 1977). This very narrow ambit of judicial review, however, does not excuse us from our responsibility to scrutinize the record in its entirety to determine whether substantial evidence does support the Secretary’s findings. Flowers v. Harris, 616 F.2d 776 (5th Cir. 1980); Simmons v. Harris, 602 F.2d 1233 (5th Cir. 1979).¹

In our search for substantial evidence we are guided, as the hearing examiners are, by consideration of (i) objective medical facts or clinical findings, (ii) diagnoses of examining physicians, (iii) subjective evidence of pain and disability as testified to by the claimant, and (iv) the claimant’s age, education and work history. Johnson v. Harris, 612 F.2d 993, 997 (5th Cir. 1980); Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980); DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972). We also recall that the scheme of the act requires the claimant to carry the initial burden of establishing the existence or continued existence² of a disability by proving that he is unable to perform his previous work. Once this is shown, the burden shifts to the Secretary to establish that there is other substantial gainful employment in the economy which the claimant can perform. If the Secretary points to possible alternative employment, the burden of persuasion then returns to the claimant to prove his inability to perform those jobs. Western v. Harris, 633 F.2d 1204 (5th Cir. 1981); Fruge, 631 F.2d at 1245; Johnson, 612 F.2d at 993.

Given these statutory requirements for showing disability, our judicially declared guidelines, and our limited scope of judicial review, we now begin our examination of the record in quest of substantial evidence.

Dissecting The Facts — The Evidence Presented At The Hearing

A. Age, Education, Work Experience

Appellant Smith is presently 42 years old, married with four children and possesses a seventh grade education with no vocational or specialized training. His job experiences include grocery stock clerk, carton-packing machine operator for a milk company, unskilled sheet metal handler for a trailer manufacturer, and ranch-hand for a cattle company. In 1968, Smith was employed by Tarrant County as a heavy equipment operator where he worked until he was injured in an accident on May 23, 1974, when an automobile struck the mowing tractor which he was operating.

B. Objective Medical Facts And Clinical Findings

Smith was immediately hospitalized complaining of pain in the cervical and lumbosacral regions and the left hip, with circulatory problems occurring in the left leg. He was treated for these injuries by Dr. Issac L. Van Zandt, an internist and orthopedic surgeon in Ft. Worth, Texas. A set of back x-rays in July 1974 showed Smith to have a low back defect with a first degree spondylolisthesis—a Greek term basically meaning one bone slipping onto another. By September 1974, Smith’s condition had worsened and extensive spinal surgery — a bilateral fusion at L4-S1 — was performed in October 1974 by Dr. Van Zandt.

C. Diagnosis

Dr. Van Zandt’s post-operative clinical notes indicate that Smith continued to complain of a disabling pain in the lower back, radiating through the left hip area, leg and foot, despite medications,³ injections,⁴ physical therapy and use of a supportive girdle. By January 1976, Dr. Van Zandt notes that Smith’s back condition was considerably better since the October back surgery, but that he continued to experience pain while standing, squatting, kneeling, sitting and was required to rest two-to-three hours a day. The doctor concluded that he had “probably reached a plateau” and was “not going to get any improvement in the future.” (R., Vol. II at 126). At this time, Dr. Van Zandt advised Smith to seek the help of the Texas Rehabilitation Commission (TRC) for possible employment retraining.

Acting on this advice, Smith sought the assistance of the TRC in June 1976. Case worker Malone who evaluated Smith’s abilities and potential capabilities, found him cooperative and willing to attempt “any assigned tasks with the best of his ability”, (R., Vol. II at 379), but unable to complete tasks due to pain.⁵ The TRC advised Smith by letter that “vocational rehabilitation services may not reasonably be expected to benefit you in terms of employment”. (R., Vol. II at 187).

In July 19, 1976, Dr. Van Zandt referred Smith to Dr. Hoover in Dallas for an electromyography (EMG). These test results were “mildly abnormal” indicating a probable mild ‘chronic’ L-5 nerve root irritation residual on the left side — residuals from the previous surgery. These findings and analysis were concurred in by Dr. Van Zandt. Consulting evaluations by Dr. Fred Sanders,⁶ another orthopedic surgeon, and Dr. Ronald Smith,⁷ a neurosurgeon, in March 1977, agreed with Dr. Hoover s and Dr. Van Zandt’s opinions that Smith’s continued pain was caused by residuals of previous surgery. A second EMG study in April 1977 substantially confirmed the diagnosis of these four doctors.

D. Subjective Evidence

These medical reports were corroborated by Smith’s own subjective testimony before the ALJ in October 1977. He stated that since the 1974 accident, he had experienced constant severe pain in his back from his neck to his hips and radiating into his legs, feet and toes. The pain was so disabling that he could not engage in house or yard work, shopping, hunting, fishing or any physical activity outside of church attendance or short trips to pick up his children from school. Smith testified that he had trouble remaining in a stationary position for more than five minutes,⁸ and that stooping, bending, stair-climbing and lifting were difficult to impossible due to pain and stiffness. Smith concluded by stating that he did not know of any eight hour day work he could be capable of because of his lack of education and his back trouble. (R., Vol. II at 66, 67, 77, 81, 95).

Before making a final decision in Smith’s case, the ALJ on November 8,1977, ordered Smith examined by a Social Security physician, Dr. Farooq I. Selod. Based upon his single examination of Smith, Dr. Selod’s diagnosis substantially agreed with the other medical opinions⁹ that Smith was suffering from “residuals of previous back injuries”, but he was of the opinion that Smith could perform a six-eight hour sitting job using his upper extremities absent repetitive movements of both feet.

Besides Dr. Selod’s evaluations, the ALJ considered the recommendations of Austin Foster, an administrative vocational psychologist, who testified at the hearing in response to two sets of hypothetical questions. The ALJ posed the first hypothetical which was premised on the physical capabilities outlined by Dr. Selod, i. e., that if he [ALJ] were to find an individual capable of engaging in strictly sedentary types of work with emphasis on the upper extremities, what types of work would the witness find existing in the national economy. In response, Foster listed (i) repetitive piecemeal bench work involving the use of hand tools — staples, drills and punch presses, grinders, (ii) gauge and dial monitoring jobs, (iii) self-service gas station attendant, (iv) dispatcher work, and (v) department store security guard. Smith’s attorney posed the second hypothetical with the additional findings and limitations by Dr. Van Zandt — mid-morning and afternoon rest breaks.¹⁰ In this response Foster speculated that these additional factors would require jobs that are “rather specialized,¹¹ and this would I judge, if this were necessary, constitute a major and significant impairment and ability to perform in gainful employment.”

So that under a hypothesis that essentially says this man cannot sit and work for a normal period of time, and have to go lie down for long periods of time; if this is the finding, then I would say that there would not be enough ability to be present on a job to do a job.

R., Vol. II at 111.

Finding And Conclusions By The AU

Based on the reports and opinion of Dr. Selod, and the recommendations of the administrative vocational expert, Dr. Foster, the ALJ reached the decision that Smith’s disability had ceased as of November 8, 1977. Smith sought review of this termination and submitted additional supportive evidence — April 1978 x-rays and medical reports of his continued disability. Dr. Van Zandt’s evaluation of these tests indicated a definite deterioration of the disc at the lumbosacral region and increased fusion to three levels as compared with previous x-rays. Dr. Van Zandt’s reports in March 1978 ruled out Smith’s engagement in any present or future gainful employment due to poor strength and functions in the lower back, secondary involvement of the upper and middle back, loss of motion in the hips and scattered abnormal neurological findings in the feet. In September 1978 another x-ray confirmed a new impairment in the form of a disc disease of the cervical spine.

Our Diagnosis Of The Record

The AU’s finding that Smith’s disability had terminated as of November 1977 was repeated by the Appeals Council, the Secretary, and finally the District Court, in spite of Smith’s submission of additional supportive evidence subsequent to 1977. We decline to follow the leader. Instead, based on our impartial consideration of the total record, we find the adverse decision to Smith by these bodies to be unsupported by substantial evidence for at least three reasons.

First, we consider the evidence which was the basis for the ALJ and Secretary’s decision. The ALJ stated:

The orthopedic consultative examination of Dr. Farooq I. Selod, performed November 8, 1977, at the request of this Administrative Law Judge conclusively establishes as of that date ... by the preponderance of the credible evidence that the claimant’s disability had in fact ended, his claims notwithstanding. (Emphasis supplied).

R., Vol. II at 27.

Apparently, the evidence supporting the decision consists almost entirely of the testimony of Dr. Selod and the vocational expert Austin Foster. Dr. Selod opined that Smith was capable of handling a six-to-eight hour a day sedentary job involving the use of his upper extremities. We observe that he reached this startling conclusion despite the fact that his medical diagnosis (see note 9, supra) substantially confirmed those findings testified to by all the other physicians who had treated or examined Smith. In embracing the conclusions of his own consulting physician who examined Smith once, the ALJ has failed to accord the proper legal weight due to the treating physician Dr. Van Zandt. It is not only legally relevant but unquestionably logical that the opinions, diagnosis, and medical evidence of a treating physician whose familiarity with the patient’s injuries, course of treatment, and responses over a considerable length of time, should be given considerable weight. This Court has recently affirmed such an approach in Fruge v. Harris, 631 F.2d 1244 (5th Cir. 1980), where we stated “unless there is good cause shown to the contrary the testimony of the treating physician must be accorded substantial weight.” Fruge, 631 F.2d at 1246. We there failed to find a “good cause” to the contrary and we do not here.

Also significant, perhaps, is the fact that this Court has recognized that the controverting opinion of a consulting “one-shot” physician selected by the Administration, may, in the circumstances of the particular case, lack substantiality when relied on by the Secretary to contradict the opinion of a longstanding treating physician. In criticizing the Secretary’s position in the case of Williams v. Finch, 440 F.2d 613 (5th Cir. 1971), that the claimant had been consistently described as “a person in excellent physical condition”, but where the claimant’s treating doctor found his heart disease to be disabling, this Court stated:

Although Dr. Langhorne’s finding may reasonably be said to negate disability, his examination was limited to one occasion ... under the circumstances of this case, we cannot say that his opinion could furnish the basis for substantial evidence to deny disability benefits.

Williams, 440 F.2d at 617 n.6.¹² Moreover, whatever doubts led the ALJ to form “the distinct impression that Dr. I. L. Van Zandt is reluctant to pronounce his patient to be totally and permanently disabled ...” (R., Vol. II at 24), we find unfounded by reading of the entire record. In fact, these doubts about Dr. Van Zandt’s conclusions are entirely dispelled by the additional reports from Dr. Van Zandt dated March and September 1978 and the following sworn testimony of March 13, 1978:

Q: Now Doctor, do you have an opinion based on reasonable medical probability, your experiences, examination and treatment of this man [in] the course of these years, as to whether or not this man will ever be able to engage in work of any kind or substance in the future?

A: Yes, I have.

Q: What is the opinion, Doctor?

A: I don’t think he can.

R., Vol. II at 358.

The second basis of support for the Secretary’s case is the testimony of Dr. Foster, the vocational expert, who in response to hypothetical questions put to him by the ALJ testified that Smith was capable of doing sedentary work involving use of his upper extremities. However, when asked by Smith’s attorney to consider a person in Smith’s physical condition who needed to rest several times during the day, as apparently undisputed evidence indicated Smith needed to do, Dr. Foster opined that such a person would be unemployable. In a factual similar case, this Court unequivocally held that “a physical limitation which prevents the claimant from working a full work day, minus a reasonable time for lunch and breaks, constitutes a disability within the meaning of the Social Security Act.” Johnson v. Harris, 612 F.2d at 998; accord Cornett v. Califano, 590 F.2d 91 (4th Cir. 1978).

Recognizing that we neither have nor seek to exercise any right to make credibility choices, we nevertheless emphasize that “[w]here credibility choices of a non-routine medical nature have a likely decisive significance, the record must afford some assurance on these factors, . . . [and] [w]e must, first, be certain that the correct standards of evaluation are used.” Page v. Celebrezze, 311 F.2d 757, 760 (5th Cir. 1963). Because the standard of substantial evidence requires that it be founded on the record as a whole, it is also necessary to consider the evidence supporting Smith’s position. In adopting and affirming the findings of the ALJ, the Appeals Council failed to consider new evidence supportive of Smith’s position — particularly that evidence dated after 1977. Significantly, when Dr. Van Zandt’s reports of March 24, 1978 and April 19, 1978 are read together, they establish without contradiction that Smith had no real improvement as far as strength and function in his lower back from June 30,1976, to March 10, 1978 after the Appeals Council hearing which affirmed the ALJ’s termination of Smith’s benefits. The situation becomes, therefore, similar to that in Epps v. Harris, 624 F.2d 1267 (5th Cir. 1980), where we stated:

[T]he Appeals Council adopted the hearing examiner’s decision without addressing post-hearing evidence of disability submitted by Dr. Kerr that expressly stated that conservative treatment had failed and that Epps had recently been referred for consideration of the radical intervention believed by the ALJ to be an important indicator of disability. Moreover, Dr. Kerr informed the Appeals Council that Epps continued to suffer pain and limited range of motion, that the contemplated surgery would not increase his productivity, and that there was no possibility that Epps would ever be fit to work in any type of job. Although the Appeals Council acknowledged that Epps had submitted new evidence, it did not adequately evaluate it. Rather, it perfunctorily adhered to the decision of the hearing examiner. This failure alone makes us unable to hold that the Secretary’s findings are supported by substantial evidence and requires us to remand this case for a determination of Epps’ disability eligibility reached on the total record. Mann v. Gardner, 380 F.2d 182, 187 (5th Cir. 1967).

Epps, 624 F.2d at 1267. See also Williams v. Califano, 590 F.2d 1332, 1334 (5th Cir. 1979) (remanding for further consideration of relevant probative evidence not explicitly weighed and considered by the Secretary when such consideration was necessary to a just determination of claimant’s application).

Third we cannot overlook the apparent lack of weight given Smith’s subjective testimony. In referring to these complaints, the ALJ noted:

His subjective complaints of persisting low back pain are objectively supported by some back muscle spasms and reduced sensation on the left. But electromyographic studies as long ago as July, 1976, were only ‘mildly abnormal,’ indicating no severe nerve involvement or disfunction. X-rays show a solid fusion without motion (emphasis supplied).

R., Vol. II at 26.

As the ALJ’s own words reveal, he apparently disregarded Smith’s complaints of pain because they were unsupported by objective clinical and laboratory findings. This runs counter to the views voiced for years and years by this Court recognizing that the claimant’s subjective complaint of pain may not be disregarded simply because they are not supported by objective clinical and laboratory findings. Page, 311 F.2d at 757. Subjective evidence of pain and disability must be considered along with the objective medical facts, clinical findings and diagnosis, and the claimant’s age, education and work history before arriving at a conclusion of disability based on the record as a whole. DePape, 464 F.2d at 92. Even subjective complaints of pain, if credited, standing alone can sustain a finding of disability in certain cases. Western, 633 F.2d at 1204; Gaultney v. Weinberger, 505 F.2d 943 (5th Cir. 1974); Page, 311 F.2d at 757. By these standards, the ALJ should have addressed the ultimate issue of whether or not Smith’s subjective pain was so constant and intense as to be disabling. This failure is even more pronounced considering that Smith’s complaints of pain were sufficiently corroborated by an abundance of medical evidence consisting of (i) x-rays showing permanent fusion in the back, (ii) disc degeneration in the cervical spine, (iii) tests evidencing poor function and strength of the back, and (iv) abnormal neurological findings in the feet.

Post Operative Relief

From our review of the entire record, we can find only the reported opinion by Dr. Selod stating that Smith is capable of sedentary work using his upper extremities as any evidence that his disability should not be continued. Even this evidence is contradicted by the doctor’s own corroborated Physician Capabilities Evaluation Chart which indicates the doctor circled three-four hour maximum capacity standard for sitting and checked conflicting boxes designating can never “lift up to ten pounds” or “only occasionally lift up to ten pounds.” (R., Vol. II at 298).

The findings of the ALJ do not meet our understanding of substantial evidence on the record as a whole. “Substantial evidence” has been defined as more than a scintilla and must do more than create a suspicion of the existence of the facts to be established. It means such relevant evidence as the 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, 852 (1971); NLRB v. Columbian Enameling and Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660, 665 (1939), citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 209, 59 S.Ct. 206, 217, 83 L.Ed. 126, 140 (1938). We therefore remand this case to the District Court with instructions that it be returned to the Secretary for a full evaluation in the light of controlling principles of all the evidence including the new evidence submitted by Smith after 1977 and any further new evidence submitted by either or both parties and received by the ALJ.

REVERSED and REMANDED.

1 . We have infrequently reversed the secretary’s finding of no disability when not supported by substantial evidence. See McDaniel v. Harris, 639 F.2d 1386, 1388 (5th Cir. 1981).

2 . The burden of establishing disability is the same as that of showing continued existence of disability.

This case, unlike the majority of reported cases arising under § 216(i) and § 223 of the Act, involves a determination of disability benefits rather than an initial denial of benefits. However, the standards to be applied by the Court in reviewing a termination of benefits do not differ materially from those applied in reviewing a denial of benefits. A prior determination of the Secretary that a claimant had a disability which entitled him to benefits does not bar a later determination of those benefits. (Case cites omitted) In a case in which benefits have been terminated, as in a case in which benefits have been denied, the burden of proving disability is on the claimant, not on the Secretary. (Case cites omitted) Thus the claimant has the burden of proving that his disability did, in fact, continúe.

Myers v. Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972).

3 . In October 1975 Smith was referred by Dr. Van Zandt to Dr. Charles Bradshaw, a psychiatrist, in an unsuccessful attempt to prescribe medication. In his oral deposition, Dr. Van Zandt testified:

Q: Now, what was this man’s course over this period of time, doctor? [July 1975 to June 1976]

A: Well, I thought it was probably up and down a little. I didn’t think he was capable. I didn’t feel like that I had much to offer him. I gave him medication, he would take more than was advised. So I sent him to get psychiatric evaluation, not that I felt that the man was crazy, but psychiatrists usually are pretty, well — they are excellent in either changing the pain medication or giving new medication or deciding whether it should be given at all.

Q: In your opinion, was Mr. Smith aided by this doctor?

A: I don’t think so.

4 . In July 1975, Smith was again hospitalized to receive injections into the nerves of his thigh.

5 . Appellant testified at the Appeal Hearing as to the nature of his evaluation with the Texas Rehabilitation Commission:

A: They had me to set at a table and do tests, like going through the phone book, running a cash register, electrical work like soldering wires, sorting out bolts, running a machine that, a little old machine that made names on plastic, running a band saw, and, and doing crafts, and just stuff like that.

Q: Now, what problems did you have in doing those things?

A: ! couldn’t set there. I couldn’t stay to set, stand there.

My nerves, I’d just go, getting so tensed up that, you know, just something that didn’t just go right, they had this — bawl me out; and I’d just get so tied up I couldn’t, couldn’t just set there.

Q: So the two principal problems that you had is the business of, just the physical ability to stand or sit—

A: Right.

Q: —whatever the job required?

A: Right.

Q: And the other was the high tension provoking, anxiety provoking—

A: Yes, sir.

Q: —nature of the work, once you made an effort?

A: Yes sir.

R., Vol. II at 90, 1-25, 91, 1.1.

6 . Dr. Sanders’ examination revealed a range of motion of the lumbar spine 40% of normal for his age and body build; tenderness in the middle low back along the lower lumbar scar; hyperreflexia of the knee jerks and some mild depression of the left ankle jerk as compared with the right ankle. The diagnosis — “persistent radiculitis with apparently solid fusion.” R„ Vol. II at 202-203.

7 . On March 30, 1977 Dr. Smith recorded Smith’s pain in the lower back, pain and numbness in the left lower extremity radiating into left buttocks, calf and foot, neck pain and occasional dizziness. The results of Dr. Smith’s examination led him to the opinion that it was “likely that [Smith’s] symptoms are in the nature of residuals.”

R„ Vol. II at 205-207.

8 . After sitting one-half hour at the Appeals Hearing, Smith asked the ALJ for permission to stand to alleviate the pain and stiffness he was experiencing in his back. R., Vol. II at 79.

9 . Dr. Selod’s consultive report also reflected Smith’s complaints of pain in the low back, always present, sharp in nature, aggravated by coughing, sneezing and bending; pain in Smith’s mid-back and neck; radiation of pain down to left leg and foot. Dr. Selod also noted Smith’s complaint that his arm goes to sleep on him, that he has a “problem with his nerves”. On examination, Dr. Selod found limitations on flexion, extension, rotation bilaterally, lateral bending on both sides; one + tenderness on palpation of upper dorsal; one + tenderness and spasms in paraspinous muscles of midline scar in lumbar area; 65° SLR “bilaterally”, with bilateral low back pain. Neurologically: hyperthesia on left side was make-and-break pattern on motor testing. R., Vol. II at 297.

10 . Excerpt from Dr. Van Zandt’s oral deposition which was admitted into evidence at the appeals hearing:

Q: In your opinion, based on reasonable medical probability, how much of a break will he need in addition to the lunch break. A: Oh, thirty minutes or sixty minutes.

Q; I’m sorry, Doctor, are you saying thirty to sixty minutes.

A: Yes.

Q: Two of them, Doctor?

A: Yes.

Q: One in the morning and one in the afternoon?

A; Yes.

R., Vol. II at 20-21.

11 . In this connection we observe the regulation’s criteria as to what constitutes work which exists in the national economy to exempt those areas which are more specialized.

§ 404.1509 Work which exists in the national economy.

12 . Unlike the Sixth Circuit, where the Rule seems to be almost absolute, we confíne this concept to the particular facts of each case. 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 treat him over a period of years stated that he was totally disabled. Miracle v. Celebrezze, 351 F.2d 361, 379 (6th Cir. 1965).