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Hodgson v. Celebrezze

decided: March 23, 1966.


McLaughlin, Staley and Ganey, Circuit Judges.

Author: Mclaughlin

McLAUGHLIN, Circuit Judge.

When this case was before us for the first time we specifically held that the Secretary through his Examiner "* * has determined the extent of the impairment suffered by Hodgson. It is clear that Hodgson at best has an impaired right-leg function because of which he retains only a 'residual usefulness' in that leg. That that residual usefulness is small indeed is apparent since he has suffered a major loss of the mobility of the knee. Moreover, the court below noted that Hodgson's personal physician described his arthritic condition as having grown progressively worse since the accident in 1955." Hodgson v. Celebrezze, 312 F.2d 260, 263 (3 Cir. 1963).

In that decision we reversed the Examiner's conclusion (which had been upheld by the District Court) that the physical impairment from which Hodgson had been determined to be suffering, does not result in inability to engage in substantial gainful activity. As to this, Chief Judge Biggs, speaking for the Court, said:

"The only specific job suggested by the record in which Hodgson might obtain substantial gainful employment is that of an elevator operator. We find nothing in the record to indicate that this possibility is a realistic one. Although it is disputed, there is substantial evidence to the effect that Hodgson is physically capable of performing a job which entails sitting and standing but little walking, such as operating an elevator. But assuming that Hodgson has the physical ability, where is he to find such employment? There has been no attempt to show that this occupation is one in which jobs are open to someone like Hodgson, with his physical limitations and his educational and vocational history. In the absence of such a showing we cannot sustain the denial of benefits to Hodgson. As was said in Klimaszewski [Klimaszewski v. Flemming, D.C., 176 F. Supp. 927] concerning the statutory language of Sections 216(i) (1) and 223(c) (2): 'The word "any" [substantial gainful activity] must be read in the light of what is reasonably possible, not of what is conceivable.' The possibility of this 55-year-old man obtaining employment as an elevator operator is not shown to be a reasonable one."

Summing up our finding, Chief Judge Biggs stated:

"We conclude, therefore, first, that the Secretary has applied too strict a standard in this case. Not only must 'the capabilities of the individual * * * be viewed in context with his own physical, educational and vocational background', Sobel v. Flemming, 178 F. Supp. 891, 895 (E.D.Pa.1959), but also the following question must be asked and resolved: 'What employment opportunities are there for a man who can do only what applicant can do? Mere theoretical ability to engage in substantial gainful activity is not enough if no reasonable opportunity for this is available'. Kerner v. Flemming, 283 F.2d 916, 921 (2 Cir., 1960). Second, when the record is tested by the principles set forth above, there fails to appear substantial evidence to support a finding necessary to the Secretary's determination of no disability, viz., that there existed a reasonable opportunity for Hodgson to engage in substantial gainful employment. Neither the bare suggestion in a medical report that the claimant might be able to operate an elevator nor the less specific allusions in the report to 'a sedentary job', 'some standing job' and 'one in which walking is at a minimum' constitute such evidence. See Pollak v. Ribicoff, 300 F.2d 674, 678 (2 Cir., 1962); Roberson v. Ribicoff, 299 F.2d 761, 762-763 (6 Cir., 1962). Compare Graham v. Ribicoff, 295 F.2d 391, 394-395 (9 Cir. 1961)."

We then remanded the proceeding with the direction to the District Court "to enter a judgment requiring the Secretary to determine whether Hodgson is able to engage in substantial gainful activity and is entitled to disability insurance benefits in the light of the principles enunciated in this opinion."

For reasons known only to itself the defendant failed to follow our mandate and proceeded to take additional medical and other evidence as to the claimant's physical impairment. That part of the Examiner's decision with reference to claimant's physical impairment comprises forty-six pages of the printed appendix. His conclusions are much the same as he found in the first appeal. The Appeals Council of defendant completely approved of what was practically a retrial of the impairment branch of the claim and endorsed the finding of the impairment to plaintiff's right leg again found by the Examiner. We note that if the defendant had been dissatisfied with any part of our ruling as to Mr. Hodgson's physical impairment, his remedy should have been to apply for certiorari and not, under the guise of necessity, to rehear the physical impairment branch of the case in dealing with the sole question on remand which had been stated precisely in our opinion. The defendant's Examiner in his present decision disagrees with our view of the record with respect to certain of the medical findings. Again, there was no petition for rehearing in that first appeal by defendant-appellee on that or any other element in the litigation. The strange sort of practice followed had no basis either in our opinion, the governing Act or otherwise.

Under our directive the one remaining task for appellee on remand was to ascertain what employment opportunities there are for a man who can do only what applicant had been found able to do and having in mind that mere theoretical ability to engage in substantial gainful activity is not enough if no reasonable opportunity for this is available. The question was not what sort of employment Mr. Hodgson could undertake. There was substantial, though disputed, evidence that he is physically capable of performing a job which entails sitting and standing, but little walking, such as operating an elevator. What had not been shown was that there was such type of work reasonably open to someone in appellant's predicament. We held that the Secretary on this point had "* * applied too strict a standard * * *." We returned the claim to the Secretary for him to apply the principles laid down in our opinion and to be guided by them in determining whether Mr. Hodgson is entitled to disability insurance benefits.

The defense attempted to introduce evidence of job availability for persons like Hodgson in and around Scranton, Pennsylvania, where Hodgson lives. The only testimony so offered was by a defense expert who named and relied upon a list of jobs from the "Dictionary of Occupational Titles" and the "Workers Trade Manual" which might be handled by applicant. It was categorically announced by this witness that he was talking primarily about the National Economy which as he remarked is "all I am responsible for". His testimony gave no real hope whatsoever of appellant being accepted for such employment within accessible distance of Scranton, his home. The witness said:

" In my honest opinion of this man -- in view of his age and I'm thinking of the critical period and his disability and educational background -- I wouldn't discard entirely the possibility of getting employment in some of these things that we have mentioned, but I would say that it would be extremely difficult." (Emphasis supplied).

There was not even any assertion from the witness that the kind of occupation appellant might be able to take on was reasonably possible for him to obtain in his work area. In speaking about particular jobs the witness was asked if he meant " -- on a national level?" He replied "On a national level -- that's what I'm talking about." He named General Electric apparently with some sort of a plant in the Scranton section but he did not know much about the conditions there. He thought those employees were out on strike. "They are not working now -- if they are -- it's a skeleton force;" On a national level, the witness mentioned electric assembly jobs but nothing however regarding possibilities of that kind of position in the critical section. He talked about bench occupations in the baking industry with no indication of Scranton availability for the likes of Hodgson. He spoke vaguely about candy industry packers and separators; Aircraft Industry bench-assembly man. All of these were picked by him from ...

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