Bradey v. Ribicoff

298 F.2d 855
CourtCourt of Appeals for the Fourth Circuit
DecidedJanuary 4, 1962
DocketNo. 8390
StatusPublished
Cited by58 cases

This text of 298 F.2d 855 (Bradey v. Ribicoff) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bradey v. Ribicoff, 298 F.2d 855 (4th Cir. 1962).

Opinion

J. SPENCER BELL, Circuit Judge.

This is an appeal by the Secretary of Health, Education and Welfare from an order of the District Court for the Western District of South Carolina. The or[856]*856der of the District Court reversed a final ruling by the Secretary that the Claimant herein was not entitled to a period of disability or to disability insurance benefits der 42 U.S.C.A. § 416 (i) (1) (A) and 42 U.S.C.A. § 423 respectively. Upon Claimant’s initial request for insurance benefits under the Act, a hearing was held at which documentary evidence of her physical condition was admitted, and at which she testified in person. On the record made at that hearing, the Hearing Examiner denied Claimant’s claim, finding: that all her impairments were remediable, that she did not have arteriosclerotic heart disease or kidney involvement, and that her anxiety neurosis accompanied by a menopause syndrome was not of such severity as to prevent her from engaging in substantial gainful activity. The Appeals Council refused to review these findings. Claimant thereafter applied for judicial review of the agency’s final decision under 42 U.S.C.A. § 405(g). At the Secretary’s request the case was remanded for further administrative action. Thereafter the Hearing Examiner, at Claimant’s request, took additional medical testimony from Dr. Keitt Smith, a urologist. The Appeals Council on the entire record then reaffirmed the original findings of the Hearing Examiner, concluding that there was strong reason to believe that Claimant could continue her former employment and that there were also many other types of work which she could do.

The District Court on appeal from the decision of the Appeals Council, which became the final decision of the Secretary, found that there was not substantial evidence in the record supporting the Secretary’s ruling. The District Court accordingly reversed that ruling and entered judgment for the Claimant.

The Claimant first sought a period of disability and disability insurance benefits under the Act by filing a claim on March 26, 1957. At a hearing following disallowance of the claim, medical reports and other documentary evidence was received in addition to the testimony of Claimant.

Claimant was born in 1901, and has an eighth grade education. She was employed since 1916 in the textile industry as a spooler, weaver, and sweeper. She has never done any other kind of work. She left work in 1954 and has not been employed since. She was released from her job at that time because of her poor attendance record, which she claimed was due to illness.

We have carefully examined the record. The objective medical findings and the medical diagnoses and expert opinion reveal the sharp conflicts which existed in the evidence before the Secretary. The record also shows the inadequacies in the evidence presented by Claimant in support of her claim. The findings of Dr. Black conflict with those of Dr. Alverson on several points. In addition the findings of Dr. Black in his second report conflict with those made in his first report and where not overtly contradictory, they negate a finding of disability by showing considerable improvement in and recovery from the conditions diagnosed in his first report. Dr. Black is the only physician who made any finding of heart disease, yet there is no evidence that his finding was based in any way upon X-ray or laboratory tests. The detailed report of Dr. Hamilton completely negates heart disease of any kind on the basis of extensive X-ray and fluoroscopic examination of the heart. That report also discloses a condition which may have led Dr. Black to an erroneous finding of heart disease on the basis of an incomplete examination. With the medical evidence in this posture on the issue of the condition of Claimant’s heart, we think that there is substantial support in the record for the Secretary’s finding that Claimant did not have arteriosclerotic heart disease or angina pectoris.

As to the Secretary’s finding that there was no kidney involvement in Claimant’s condition, the record is in much the same posture. Dr. Nachman expressly stated that there was no kidney involvement. Dr. Black refers once to Claimant’s “genito-urinary” condition, from which it may be possible to draw an inference of [857]*857kidney involvement. However, there is no specific mention of kidney involvement at any point in Dr. Black’s report. In addition Dr. Hamilton’s report, made on the basis of X-ray examination and detailed objective findings expressly negates kidney involvement. Dr. Smith, a urologist, as is Dr. Nachman, found the kidneys normal and that there was no kidney involvement. Dr. Alverson made no mention of kidney involvement. We, therefore, conclude that there is substantial support in the record for the Secretary’s finding that there was no kidney involvement in Claimant’s condition.

This leaves us only to deal with the Secretary’s finding that all of Claimant’s impairments were remediable and that her anxiety neurosis and menopause syndrome were not of such severity as to prevent her from engaging in substantial gainful work. We think it is clear that the latter finding is proper on this record. The Claimant has not claimed at any point that her nervousness is the cause of her inability to work. Bather she has claimed that she cannot work because of her frequent and uncontrollable urination. There is nothing at any point in the record that links her neurosis or menopause syndrome, if indeed they exist, to her frequent urination as a physical or emotional cause. Dr. Hamilton was the only physician who diagnosed these conditions and he did not tie them up with Claimant’s urinary difficulty. As part of an exhaustive physical examination he found them to exist and he reported their existence. He did not in any way indicate that they were causes of, or in any way connected with, her urinary difficulties. With no evidence linking the neuroses and syndrome to the Claimant’s urinary difficulties we do not believe they can be considered to be the cause of Claimant’s alleged inability to work. We, therefore, find substantial evidence to support the latter finding.

We believe that the evidence clearly shows that Claimant is the victim of a bladder ailment, probably a soft-type stricture of the urinary tract. The Secretary found only that this condition was remediable. The issue then is whether there is substantial support in the record for a finding that Claimant’s stricture of the urinary tract was remediable. It is established that a remediable ailment cannot be the basis of a claim under the Act. 20 C.F.R. 4021.1501(g). Title 42 U.S.C.A. § 416 (i) (1) (A) expressly states that disability must occur “ * * * [B]y reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration * * (Emphasis added). An impairment which is presently capable of being classified as remediable cannot meet the requirement that it be “of long-continued and indefinite duration”. We think it plain that the express terms of the Act require a reasonable showing of the permanence of the disability. “Not until treatment has been tried and found unavailing can it be said that a reasonable certainty of permanence appears.” United States v. Hammond, 87 F.2d 226, at 227 (5 Cir. 1937). See also Theberge v. United States, 87 F.2d 697 (2 Cir.

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Bluebook (online)
298 F.2d 855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradey-v-ribicoff-ca4-1962.