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Ishmael Lackey v. Anthony J. Celebrezze, Secretary of Health, Education, and Welfare, 349 F.2d 76, 4th Cir. (1965)
Ishmael Lackey v. Anthony J. Celebrezze, Secretary of Health, Education, and Welfare, 349 F.2d 76, 4th Cir. (1965)
2d 76
More than four years ago, on March 28, 1961, Ishmael Lackey, of Dingess,
West Virginia, filed his application with the Social Security Administration for
a period of disability and disability insurance benefits under sections 216(i) and
223 of the Social Security Act of 1935 (as amended), 42 U.S.C.A. 416(i) and
423 (1964). He complained of inability to work due to high blood pressure,
'lung trouble,' a 'broken left foot,' dizziness and poor hearing. The Social
Security Administration's Division of Disability Operations recognized that
Lackey's health and physical condition were impaired, but did not consider him
disabled. Its hearing examiner held that except for claimant's limp there was no
evidence of a disability, and therefore denied the application. His decision,
which became that of the Secretary, was affirmed by the District Court, and is
now before us on appeal. Lackey claims that there is a lack of substantial
evidence in the record to support the Secretary's conclusion. For the reasons to
be stated, we agree with Lackey's contention.
We turn to the record. Lackey was born on March 17, 1915, and was thus fortysix years old at the time of his application for disability benefits. He had
absolutely no formal education and can neither read nor write. He went to work
when only fourteen years old, and for the next fourteen years performed odd
jobs, including hauling and sawing timber at lumberyards. Then, in 1943, at the
age of twenty-eight, Lackey took a job in the coal mines, where he performed
various types of manual labor until November, 1959, when he was discharged.
Since then he has not worked. Lackey claims that physical inability to perform
his duties was the reason for the termination of his employment and that his
disability continues.
While all of the doctors agreed that Lackey's activities were limited by his
several impairments they differed as to the extent of the limitation. One was of
the view that because of heart disease Lackey was totally disabled. Another
recommended that he refrain from severe exercise. A third suggested that
because of the dizzy spells, Lackey should not drive an automobile. Oddly, the
evidence is that Lackey has never driven an automobile, but it is significant that
the doctor treated seriously the symptoms of dizziness. One cannot help
wondering what other abstentions, perhaps more relevant to the claimant's
situation, this advice implies. Despite another doctor's opinion that Lackey
could do 'anything but heavy-- active work,' he qualified this with a diagnosis
of hypertension and cardiovascular disease and, apparently feeling the need for
more exact information, suggested that a current electrocardiogram be obtained.
No evidence was introduced before the hearing examiner as to the jobs which
the claimant is capable of performing other than one doctor's unspecific remark
that Lackey can do 'many types of factory work.' Just what this means there was
no attempt to explain. No vocational counselor was called to show which jobs
are within Lackey's limited capabilities.
Upon this record, surprisingly, the examiner found that 'except for claimant's
limp, there was no evidence of a disability.' This is such a complete departure
from the evidence, much of it undisputed, that the examiner's conclusion must
be regarded as arbitrary.
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Moreover, even apart from the evidence of heart disease, there would be no
substantial justification for the rejection of the considerable impressive
evidence of other impairments including hypertension, pulmonary emphysema,
spondylolisthesis, loss of hearing, an immobilized ankle and amputated finger,
the existence of which the Secretary has not challenged, and which make out a
prima facie showing of disability in the circumstances of this claimant.
Arguably, a judge, an artist, or a scientist in his laboratory, restricted to
sedentary work, might function acceptably despite such symptoms. A totally
illiterate and unskilled person with the physical limitations could not possibly
find employment at the only kind of laboring jobs he was ever fitted to
perform.
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employed since the application for such benefits presupposes availability for
employment.' Nevertheless, receipt of unemployment compensation does not in
itself prove ability to work. It is undoubtedly true that such compensation is
intended only for those who could work but for the lack of available
employment. In this record, however, no showing is made that Lackey actually
represented to the state authorities that he was able to work or that he was
aware of the legal requirements for unemployment compensation. Under these
circumstances, acceptance of benefits for a limited time is scarcely disproof of
Lackey's present claim.
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