Salyer v. Richardson

345 F. Supp. 1209, 1972 U.S. Dist. LEXIS 12686
CourtDistrict Court, W.D. Virginia
DecidedJuly 20, 1972
DocketCiv. A. No. 71-C-168-A
StatusPublished
Cited by1 cases

This text of 345 F. Supp. 1209 (Salyer v. Richardson) is published on Counsel Stack Legal Research, covering District Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Salyer v. Richardson, 345 F. Supp. 1209, 1972 U.S. Dist. LEXIS 12686 (W.D. Va. 1972).

Opinion

OPINION

WIDENER, Chief Judge.

This is an action under § 205(g) of the Social Security Act, 42 U.S.C. § 405 (g), to review a final decision of the Secretary of Health, Education and Welfare. On September 26, 1969, claimant filed application to establish a period of disability and for disability insurance benefits, alleging that he first became unable to engage in substantial work on September 5, 1969. The Bureau of Disability Insurance disallowed claimant’s application, so advising him by letter dated June 2, 1970. Upon claimant’s request, his application was reconsidered, and it was again rejected on October 12, 1970. Claimant thereupon requested a hearing, which likewise resulted in denial of his claim. The hearing examiner’s decision became the final decision of the Secretary on October 18, 1971, when the Appeals Council denied claimant’s request for review.

To qualify for disability insurance benefits and a period of disability under §§ 223 and 216(i) of the Act, 42 U.S. C. §§ 423 and 416(i), an individual must meet the insured status requirements of these sections, be under age 65, file an application for disability insurance benefits and a period of disability, and be under a disability as defined in the Act. The term disability is defined in § 223 to mean:

“(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; * * *
“(B) * * *
“(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 [1211]*1211individual lives or in several regions of the country.
“(B) * * *
“(3) For purposes of this subsection, a ‘physical or mental impairment’ is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
“(4) * * *
“(5) An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require.”

For purposes of establishing a period of disability under § 216(i) of the Social Security Act, the same disability provisions as contained in § 223(d) (1) (A), (2) (A), (3) and (5) of the Act, quoted above, are applied.

It is not questioned that plaintiff does suffer from some mental or physical impairments. The only issue therefore is whether such impairments render plaintiff unable to engage in any substantial gainful activity as required by the statute. Of course, the Secretary’s determination that plaintiff is not incapable of engaging in such substantial gainful activity must be affirmed if there is substantial evidence to support the decision. Durham v. Gardner, 392 F. 2d 168, 169 (4th Cir. 1968) ; 42 U.S.C. § 405(g). In its determination of whether there is substantial evidence that plaintiff is unable to engage in substantial gainful activity, the court must consider (1) objective medical facts (which are the clinical findings of examining or treating physicians divorced from their expert opinions or judgment as to the significance of these findings); (2) the medical opinions of these physicians; (3) the subjective evidence of pain and disability testified to by the claimant and corroborated by other evidence, and (4) claimant’s background, work history and present age. Cyrus v. Celebrezze, 341 F.2d 192 (4th Cir. 1965); Hicks v. Gardner, 393 F.2d 299 (4th Cir. 1968).

The transcript shows that plaintiff is a 44-year-old male with a sixth grade education; he professes only slight ability to read and write. He is married and currently lives at home with his wife and 11-year-old male child. His 18-year-old daughter is married and not living in his household. Plaintiff has spent most of his working life in the coal mines (since 1946), although before going into the mines he worked in a butcher’s shop as a butcher’s helper, and before that as a laborer on a railroad track gang. While in the mines, plaintiff worked as a roof bolter, a job he describes as using a machine like an inverted jack-hammer to bolt supports to the roof of the mine. This work is done at the face of the mine and plaintiff described the work area as extremely dusty, often so much so that he could not see to work and had to wait for the dust to clear.

On September 5,1969, plaintiff stopped going to work. He testified that he just could not go any more and, in his own words, “My chest hurt me. I couldn’t breathe. I couldn’t sleep. I had to sit up in bed.” Plaintiff further testified that his chest hurt worse now than ever, that he loses his breath whenever he tries to move around very much and that his strength leaves him if he “move[s] very much.”

The hearing also revealed that plaintiff suffers impaired use of his hands. He has difficulty in extension of the fingers although flexion is accomplished fairly easily and he makes a good fist. He is able to feed and bathe himself unassisted and apparently without difficulty. Plaintiff says that his hands have always been “crooked,” but only in the past three years has he experienced weakness in them. He states that he can no longer milk a cow, yet the court takes notice of the fact that such a task is one requiring a very great amount of strength in the hands and by no means of itself would indicate inability to use his hands for other things.

Plaintiff also claims to have a problem with his nerves, although his testimony on this is very vague. As to his [1212]*1212nerves, plaintiff seems to be saying that he is nervous a lot and that his legs sometimes go to sleep.

Plaintiff’s wife testified at the hearing and largely substantiated what plaintiff had said concerning chest pains, shortness of breath, loss of strength, nervousness and weakness of the hands. She further stated that recently the plaintiff at times does not seem to know where he is or what he is about.

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Related

Lankford v. Weinberger
373 F. Supp. 1171 (E.D. Tennessee, 1973)

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Bluebook (online)
345 F. Supp. 1209, 1972 U.S. Dist. LEXIS 12686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salyer-v-richardson-vawd-1972.