Full opinion text
O’SULLIVAN, Circuit Judge. We consider the appeal of Irene C. Jenkins from disallowance of her claim to social security benefits. Mrs. Jenkins was 57 years old in April of 1967— the time of the hearing in this case. She had worked for many years for the Union Carbide Company as a salad maker in the cafeteria. Her husband is also employed there; they have no dependent children. Appellant claims that because of her disabilities she quit work in April of 1966. In September of that year she retired from Union Carbide at a monthly pension of $57.00. Application for Disability Insurance Benefits filed June 27, 1966, describes the disabilities upon which she relied as “Diabetes, Ulcers, Bursitis,” and stated that she had become disabled on April 1, 1966. Initially, the Secretary, after reviewing what was before him, denied her application. Upon request for reconsideration, the Social Security Administration reviewed the material before it. The Department on February 17, 1967, advised Mrs. Jenkins, “You stated that you became unable to work in April 1966, at age 55, because of diabetes, ulcers and bursitis. Our records show that you have a sixth grade education and worked as a salad maker in a cafeteria. “The medical evidence includes reports from your treating physican, hospital records and the results of special examinations which were arranged for you. This evidence reveals that you have a history of diabetes and ulcers. However, it is shown that these conditions are controlled by diet and medication and the state of your nutrition is not disturbed. Although you have recurrent attacks of bursitis, the evidence establishes that this condition responds to therapy and does not seriously limit your ordinary activities. We realize that you may experience occasional pain and discomfort. However, the evidence does not support a conclusion that your condition is so severe as to prevent you from performing your usual work. Therefore, the denial of your claim is affirmed.” Upon her request, a hearing was had before a trial examiner at which appellant was represented by counsel. Included in the record made in considering appellant’s application were reports of her hospitalization on several occasions, reports of doctors who had examined her for the Secretary, and reports of her own treating doctor. Of the doctors who examined plaintiff and expressed views as to whether she was disabled, the following were the observations of such of them as examined her at the request of the Secretary. On September 7, 1966, Dr. I. Reid Coll-mann concluded: “Recommendations: It would appear that this patient does have cholelithia-sis proven by previous x-rays, but this situation could be modified by corrective surgery. Also her diabetes and ulcer situation should be able to be managed by good medical therapy. Following these corrections we feel that this patient is not restricted but probably has some degree of restriction until that time." (Emphasis supplied.) Dr. R. A. Obenour, on January 23, 1967, stated: “Minimal arteriolar schlerosis was noted on funduscopic examination. She may have some bronchitis related to her smoking but the extent of this is not thought to be severe. I believe that some improvement could be expected from weight reduction, continued diabetic control, cessation of smoking, and if necessary more specific treatment for her chronic bronchitis. On the basis of the present findings she might be limited by her pulmonary impairment from performing heavy work but would not be limited for performing moderate or light work on a sustained basis. (Emphasis supplied.) Walter C. Shea, who had been her treating physician for some years before the present proceedings, said on December 5, 1966: “At times she is ambulatory with limitation of employment due to chronic and persistent illness. “She is unable to hold down any job which requires much physical labor for any prolonged period of time.” Finally, on May 7,1967, Dr. Shea stated: “Due to multiplicity of complaints I believe Mrs. Jenkins has shown over the past two years I believe her absenteeism rather marked and she is an unreliable employee. “I believe she can be gainfully employed for short periods of time if she can find employment under these circumstances.” Mrs. Jenkins had a multiplicity of complaints, suffering from bronchitis, diabetes, chronic overweight, bursitis and ulcers. Her weight had varied. At the time of the hearing she was 5' 6" tall and weighed 185 pounds. She had once reached a weight of 190. She considered that her proper weight was 160 pounds, although about four years prior to the hearing she weighed 139 pounds. She testified at the hearing that she had then quit her diet, finding it too burdensome. Control of her diabetes and ulcers was impaired by her failure to follow the advice of «doctors. She was then smoking about one package of cigarettes every two days, although she had been advised to quit or to cut down on her smoking to control her bronchial complaints. Despite her ailments, all of the doctors, including her own treating physician, expressed the view that appellant could engage in moderate or light work, albeit, according to Dr. Shea, her reliability was questionable as a result of her absenteeism. The vocational counselor, a University of Tennessee professor, expressed the opinion that light work within appellant’s limited competence was available within the area of her place of residence. He testified that such light work included employment as a salad maker, cashier, or nurse’s aid. The trial examiner concluded as a matter of factual finding, “The examining physicians, including claimant’s own treating physician, are unanimous in their findings that even though the claimant does not have the residual capacity to engage in productive substantial gainful activity requiring physical exertion or labor for any prolonged period of time, neither of them rule out claimant’s residual capacity to be gainfully employed in performing moderate or light work on a sustained basis.” and in another style said: “Upon the basis of all the evidence of record in this case, and the conclusions and deductions made from such evidence, the hearing examiner finds that the claimant has failed to present sufficient evidence to establish that she has an impairment or impairments in combination severe enough to preclude her from engaging in any type of substantial gainful activity for a continuous period, without interruption, of not less thhn 12 months’ duration and that, therefore, her application is without merit.” No question is raised as to the competence, integrity or credibility of the medical witnesses Collmann and Obenour who examined appellant for the Secretary. If there is some degree of conflict between Dr. Shea and these doctors, we are not persuaded that we should ignore their testimony or fault the examiner for relying upon their views. Lane v. Gardner, 374 F.2d 612, 616 (6th Cir. 1967). The burden of proving the disability which would entitle an applicant to social security benefits is upon such applicant. Henry v. Gardner, 381 F.2d 191 (6th Cir. 1967); Erickson v. Ribicoff, 305 F.2d 638 (6th Cir. 1962); 42 U.S.C. § 423(d) (5). The disability which must be shown is defined in Section 223(d) (1) of the Act as, “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.” 42 U.S.C. § 423(d) (D. This Circuit had adhered to a Court made rule that if an applicant has established inability to engage in his or her regular employment, but has some residual capacity for light work, the burden is on the Secretary to show what light work the applicant can do and that such light work is being performed within reasonable proximity to the applicant’s place of residence. Massey v. Celebrezze, 345 F.2d 146 (6th Cir. 1965); Hall v. Celebrezze, 314 F.2d 686 (6th Cir. 1963); May v. Gardner, 362 F.2d 616 (6th Cir. 1966). Whatever the present applicability of such rule, the Secretary’s burden was met in this case. We affirm the District Judge who granted the Secretary’s motion for summary judgment upon his view that the findings of fact of the Secretary were supported by substantial evidence and were binding upon him. We are of a like view. 42 U.S.C. § 405(g); Nelson v. Gardner, 386 F.2d 92, 94 (6th Cir. 1967). We are constrained, however, to say this much more, limited to plaintiff’s “claim” of impaired eyesight. Appellant did not claim impaired eyesight in her application for benefits. Eye trouble appeared first as a result of some questions put to her by the trial examiner. We discuss it only because the dissent places great weight on it. In her original application for benefits, she described her disabilities as “diabetes, ulcers, and bursitis,” never once mentioning poor eyesight. The report of disability interview merely cheeks off a box denoting that appellant displayed some difficulty with her eyesight, but otherwise deals at length only with her other complaints. The record made contained reports of Mrs. Jenkins’ hospitalization on several occasions. No mention of eye trouble is contained in any of these — the last relating to a period from April 22, 1966, the date she gives as the beginning of her total disability. A total of ten doctors who had examined appellant on various occasions before and after the time of the claimed commencement of her disabilities,- filed written reports. These included the several doctors who would see her at a hospital visit. In one report dated January 23, 1967, there is a notation “vision reduced in both eyes for about one year.” In another of these reports, the examining doctor includes in his general report of physical examination, “Pupils are equal, react to light and accommodation * * *. f Fundoscope examination is negative.” Other than the foregoing, the doctors’ reports make no reference to eye trouble. Her own Dr. Shea, upon whom she had long relied for treatment and upon whom she places chief reliance, makes no mention whatever of impaired eyesight as one of his patient’s difficulties. Mrs. Jenkins testified at the oral hearing on April 21, 1967. She was examined by her attorney and then by the trial examiner. On examination by her own attorney, she was asked to give the reasons for her inability to continue working. She did not mention eye trouble. Mention of it appeared only in the resumption of questioning by the trial examiner. “Q. Why don’t you drive? A. I can't see. Lines runs together and I can’t see which way I’m going. I can’t judge my distance. My eyes just — letters seems like it just gets foggy. I just don’t try it.” She then went on to say that her eye troubles persisted even when she wore her glasses; that she did not read much at home “without its big reading and big print.” She then answered that a Dr. Millis had checked her eyes. At the conclusion of the hearing the trial examiner suggested that appellant’s counsel obtain a report from Dr. Millis. The hearing was then adjourned to May 9 to hear testimony of a vocational counselor. On that date appellant’s attorney produced a letter from the optometrist, Dr. Fred B. Millis, O.D., dated at Lenoir City, Tennessee, Mrs. Jenkins’ place of residence, advising of an examination of Mrs. Jenkins on May 4, 1967. The report was as follows: “Re: Irene C. Jenkins. On May 4, 1967 I examined the vision of Mrs. Irene Jenkins of Route 4, Lenoir City, Tenn. This is a record of my findings. Vision without glasses: Rt. Eye 20/200 Lt. eye 20/200 Both 20/200 Vision with glasses: Rt. eye 20/20 Lt. eye 20/30 Both 20/20 Stereopsis is low; there is a definite vertical deviation in the alignment of her eyes resulting in double vision. The eye pressure was within normal range. Due to the vertical deviation and the inability to see equally as clear out of both eyes, she suppresses vision in her right eye. She has a record of variable blood pressure as well as a diabetic condition. Each of which makes it almost impossible to stabilize her visual problem. I have been examining Mrs. Jenkins’ vision since July, 1963; during this period of time I have observed a general deterioration in her vision. Sincerely, /s/ Dr. Fred Millis, O.D.” In this report Dr. Millis expresses no opinion as to what, if any, effect Mrs. Jenkins’ eye condition would have upon her ability to work. He states that with glasses Mrs. Jenkins’ combined vision of both eyes would be 20/20. To the layman, 20/20 vision is normal vision. The intendment of the optometrist’s other recitals, if of relevancy here, is not expressed. While “double vision” sounds ominous, standing alone it gives no idea of the import or frequency of such disorder. What treatment might be employed to alleviate it is not set out. Certainly this report does not justify an assertion that the lady is “nearly blind”. This report was received in evidence with the examiner's comment that “it [the report] will be received in evidence * * * and the vocational witness, of course, will want to examine it as part of the medical evidence in this case.” Although the examiner made no specific reference to the optometrist’s report in reciting the difficulties and disabilities that were disclosed by the testimony and record, we assume that the vocational counselor had examined the optometrist’s report prior to his conclusion that Mrs. Jenkins could be gainfully employed. On cross-examination by appellant’s attorney, the vocational expert did answer that nurses aides and cashiers would require sufficient eyesight to do the customary duties of that work — reading a thermometer or the numbers on a cash register, taking blood pressure and cheeking pulse. At the conclusion of the May 9 hearing, the record was kept open to allow appellant’s counsel to obtain further medical evidence from Dr. Shea. A final report from Dr. Shea, Mrs. Jenkins’ own doctor, dated May 17, 1967, was received. Although the optometrist’s report was then available, Dr. Shea’s report makes no mention whatever of impaired vision. As set out above, he concludes his final letter: “I believe she can be gainfully employed for short periods of time if she can find employment under these circumstances.” At the same time as the filing of Dr. Shea’s report, Mrs. Jenkins’ attorney filed her affidavit which for the first time included a claim that impaired eyesight was a contributing element to her disability. She said, among other things: “I have cut myself on these machines on occasion, and to a certain extent they are dangerous for a person with my eyesight, and with my other ailments, which cause me to bleed more easily, to black out, etc.” The trial examiner’s decision considers the late claim of reduced eyesight specifically, but concludes, as previously quoted, that: “Upon the basis of all the evidence of record in this case, and the conclusions and deductions made from such evidence, the hearing examiner finds that the claimant has failed to present sufficient evidence to establish that she has an impairment or impairments in combination severe enough to preclude her from engaging in any type of substantial gainful activity for a continuous period, without interruption, of not less than 12 months duration and that, therefore, her application is without merit.” The trial examiner found that appellant did not meet her burden of proof. The Secretary joined in that conclusion. Neither the District Court nor this Court can strike down these conclusions unless it can be said that they were without support by substantial evidence. King v. Celebrezze, 341 F.2d 108, 109 (6th Cir. 1965); Hall v. Celebrezze, 340 F.2d 608 (6th Cir. 1965); 42 U.S.C. § 405(g). The mere belated mention of impairment of eyesight, without evidence to support a claim that it disabled appellant from gainful employment, will not do to meet her burden of proof, either before the Secretary or the courts on review. Judgment affirmed. . Her husband testified that the burden of her work was in part responsible for appellant’s disabilities. He said that after she left her job, Union Carbide had to hire about six people to replace her. . The record does not warrant the statement that plaintiff was “awarded her full retirement benefits for total disability.” (Emphasis supplied.) . Despite these chronic illnesses, Mrs. Jenkins had a good earnings record up to April 1, 1966. For the 25 quarters after 1959, her average quarterly earnings were $1,082.51. . After testifying at length about her difficulties without any mention of eye trouble, the following testimony was given, under questioning by her own counsel: “Q. Did you have any other problems about doing your work other than your legs and your back? “A. Well, no, not nothing but through my arms and my shoulders. Well, they got, you know, with that bursitis and stuff and I couldn’t lift no pans or anything up over my head; and we had to lift them and put them up in a box; and I couldn’t lift them up, had to have help on that.” We are not convinced that failure to rely on eye trouble was the fault of appellant’s lawyer. The entire record is persuasive of appellant’s belated reliance on it as a disability. . The vocational counselor did not say that plaintiff needed “unusually good vision” for this work. . The hearing examiner did not say that “claimant’s deteriorated visual impairment results from her negligent failure to remedy her diabetes.” Column Use
McALLISTER, Senior Circuit Judge (dissenting). I respectfully dissent. As a preface to this dissent, it may be said that it used to be easy enough for an appellate court to affirm an administrative agency on the ground that the findings were supported “by substantial evidence,” if it could find just a trace of evidence to support them. But that is not the case anymore. Congress grew critical of such affirmances which ignored conflicting evidence and, in turn, brought about harsh criticism of the courts for such decisions on the ground that cases were affirmed merely because the appellate court could find evidence in the record which, viewed in isolation, substantiated a Board’s findings. In Universal Camera Corp. v. National Labor Bd., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, Mr. Justice Frankfurter de-dared: “Protests against ‘shocking injustices’ and intimations of judicial ‘abdication’ with which some courts granted enforcement of the Board’s orders stimulated pressures for legislative relief from alleged administrative excesses,” with the result that the Taft-Hartley Act provided that such findings of fact must be “supported by substantial evidence on the record as a whole. * * * We conclude, therefore, that the Administrative Procedure Act and the Taft-Hartley Act direct that courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed upon them responsbility for assuring that the Board keeps within reasonable grounds. * * * The Board’s findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.” Since, as hereafter appears, there have been a great number of reversals compared to the affirmances of the decisions of the Hearing Examiner and the Secretary, this court has held in Sayers v. Gardner, 380 F.2d 940, 943 (C.A. 6), that “the records should be carefully examined and reviewed by the courts, and an opinion should generally be written, setting forth the facts and the law, to show that the courts have, in reality, assumed more responsibility for the reasonableness and fairness of the decisions of federal agencies, than some courts have shown in the past; and that reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function, as we have been directed and cautioned by the Supreme Court in Universal Camera Corp. v. N. L. R. B. supra, for this case obviously means that courts should scrutinize the decisions of agencies, more than they have in the past, to ascertain whether they are reasonable and fair. The great number of errors and reversals, in the past, in these cases, constitute a warning signal.” (Emphasis supplied.) The appellate courts obviously took notice of the commands of the Supreme Court as to “searching the record” in review of agency findings, since little has been said by the Supreme Court on that subject since. However, in disability benefit cases under the Social Security Act, the decisions of Hearing Examiners and their findings of fact and conclusions of law, upon which the Secretary’s decisions were based, became so unjustifiable and hostile to the rights of poor people who became disabled, that the reviewing federal courts were shocked, and repeatedly reversed those decisions; and later adjudications, reversing like decisions, pointed out the unusual number of such cases that the courts were obliged to reverse, compared to the number that were affirmed, and emphasized what the Supreme Court had said as to searching examinations of the record. As an instance, Judge Feinberg in Scott v. Celebrezze, 241 F.Supp. 733, 736 (S.D.N.Y.), emphasized how searching must be the review by the courts of the action of the Secretary, observing that in the cases reported in volumes 227-236 of Federal Supplement, the Secretary had been reversed or remanded 47 times, while upheld only 27 times. Likewise, in Seldomridge v. Celebrezze, 238 F.Supp. 610, 620 (E.D.Pa.), Judge Higginbotham emphasized that for September, October, and November of the 1964 Federal Supplement, the Social Security Administration was reversed in at least 75% of the cases and that 90% of the reversals were because of lack of substantial evidence to support the findings of the Secretary. In Miracle v. Celebrezze, 351 F.2d 361, 382 (C.A. 6), this court commented on the statement made in Lightcap v. Celebrezze, D.C., 214 F.Supp. 209, 216, that the court, as adjured by the Supreme Court “must now assume more responsibility for the reasonableness and fairness” of the federal agencies “than some courts have shown in the past,” and “Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function.” And the court emphasized; “The review of cases for disability benefits under the Social Security Act is onerous from many aspects. The case before the Hearing Examiner is heard informally. This means that there is practically no examination or cross-examination of any witnesses, except the claimant himself, usually a man whose life has been one of hard labor, and with little education; and, sometimes, a Vocational Counselor. The record, for the most part, consists of letters and written statements regarding the disability claimed, the extent of it, or the lack of it. Many of these statements consist of official printed forms of applications and reports filled in, in the handwriting of various individuals; and their reproduction in the record often requires laborious decipherment. These records call for searching investigation by the district courts, and further searching investigation by appellate courts.” In the light of the prevailing opinion, therefore, it appeared that a dissent thereto should clearly show that a searching examination of the record has been made, and the undisputed facts fully stated ; and it is this consideration which accounts for the length and detail of this opinion. Appellant, Irene C. Jenkins, claimant herein, filed an application for disability benefits under the Social Security Act and, after denial by the Division of Disability Operations, filed an appeal from such denial, and asked for a hearing. On the hearing, the Hearing Examiner denied her claim on the ground that her impairments did not constitute disability under the provisions of the Social Security Act. Appellant sought review by the District Court which, in effect, affirmed the decision of the Hearing Examiner. We are of the opinion that the District Court and the Hearing Examiner were in error in holding that appellant was not disabled for the performance of substantial gainful activity by reason of a medically determinable physical impairment. The purported evidence, on which the findings of the Hearing Examiner are based, crumbles upon careful analysis. The errors in the findings of the Hearing Examiner are as follows: 1. The Hearing Examiner was guilty of prejudicial reversible error in holding that “clinical evidence” meant “objective clinical evidence” —and, although it appears that there was an enormous amount of “clinical data” or “clinical evidence” supporting the petitioner’s claim, the Hearing Examiner held that there was “very little data” if any, to support the evidence of claimant’s attending physician, Dr. Shea. 2. The Hearing Examiner was guilty of prejudicial error in making no findings as to the chief cause of claimant’s disability — musculoskel-etal impairments, which were sustained by a wealth of medical evidence and undisputed by anyone. The doctors employed by the Social Security Administration, upon whom the Hearing Examiner relied, never mentioned claimant’s musculoskeletal disorders, which were the chief bases of her claim for disability. The Hearing Examiner did not even address a question to his so-called expert, the Vocational Counselor, with regard to these musculoskeletal impairments. 3. The Hearing Examiner’s finding that claimant’s diabetes was mild and could be controlled was not sustained by substantial evidence, while the evidence of her attending physician was clear and definite that, even with the administration of insulin, her diabetes was uncontrollable. 4. The Hearing Examiner was guilty of prejudicial error in giving more credence to the report of a physician employed by the Social Security Administration, who had seen claimant on only one occasion, and dismissed the. evidence of the physician who had attended her for six years and also reported on her impairments, treatments, and hospitalizations, together with numerous other physicians who had examined claimant over a period of years. 5. The Hearing Examiner was guilty of prejudicial error in his findings that claimant’s impairment of eyesight and vision was due to her negligence in not following her treating physician’s directions for diet to control her diabetes, when there was no evidence that claimant’s impairment of vision resulted from her failure to follow her physician’s instruction as to diet to control her diabetes. 6. The Hearing Examiner was guilty of reversible error in holding that claimant’s attending physician, and the reports of other medical witnesses, were unanimous in their findings that, even though the claimant does not have the residual capacity to engage in productive substantial gainful employment, requiring physical exertion or labor for any prolonged period of time, neither of them rules out claimant’s residual capacity to be gainfully employed in performing moderate or light work on a sustained basis. In fact, they indicate she has the capacity to engage in moderate work on a sustained basis. Claimant’s attending physician did not make any finding that claimant could do moderate work on a sustained basis. He stated that he believed only that “she can be gainfully employed for short periods of time * * Ability to do moderate work for short periods of time is not the capacity to engage in “substantial gainful activity.” 7. The Hearing Examiner was guilty of prejudicial error in his findings in paying no attention to the evidence of claimant’s pain, which was the causative factor in her stopping her work, and in failing to inquire of his Vocational Counselor what result such pain might have if she tried to resume her work— and in failing even to mention “pain” in his hypothetical questions to the Vocational Counselor, and in failing even to mention the word “pain” in his findings. As a preliminary matter to the understanding of the issues, certain statements in the prevailing opinion warrant discussion. First, the prevailing opinion states that there are three errors in the statement of fact in this opinion: 1. “the Hearing Examiner did not say that ‘claimant’s deteriorated visual impairment results from her negligent failure to remedy her diabetes.’ ” As a statement preliminary to the discussion of the case, it is to be said that the Hearing Examiner not only said that— he said it much more specifically and emphatically when he stated: “Since the filing of her application, claimant also complains of poor vision. * * * She has, however, visited an Optometrist, who examined the claimant as late as May 4, 1967, and found that her poor vision is correctable with glasses to 20/20 in the right and 20/30 in the left. He further notes that claimant has a record of variable blood pressure as well as a diabetic condition which makes it almost impossible to stabilize her visual problem and that he has observed a general deterioration in her vision, since July 1963. Again, it is noted here that with claimant’s full cooperation with her treating physician in following his instructions for controlling her diabetes and obesity, this impairment, too, can be greatly improved and stabilized.” (Emphasis supplied.) It is to be remarked that the optometrist did not find that “her poor vision” is “correctable with glasses.” He did not mention the phrase, “correctable with glasses.” He did state that during the prior four years, there was “a general deterioration of her vision.” There is a difference between vision with glasses and “poor vision,” as a result of disease. The so-called “poor vision” was not correctable with glasses because claimant had what he stated was “double vision”; and her stereopsis, or depth perception, was low, and she had been suffering a general deterioration in her vision for several years. However, to revert to the statement that “the Hearing Examiner did not say that claimant’s deteriorated visual impairment results from her negligent failure to remedy her diabetes,” the foregoing quotation from the Hearing Examiner’s findings is certainly a statement that if she cooperated with her treating physician in controlling her diabetes — which the Hearing Examiner found she did not do — this deterioration and impairment of her vision could be greatly improved and stabilized. Is this not the same as a statement that claimant’s deteriorated visual impairment results from her negligent failure to remedy her diabetes ? That is what the Hearing Examiner stated and meant. The statement in the prevailing opinion to the contrary was apparently made under a misapprehension of what the record showed. There is no evidence of any kind to support the finding that claimant’s visual impairment could be improved by following instructions for controlling her diabetes. No one ever contended that claimant's visual impairment could be remedied by following instructions for controlling her diabetes during the hearing; no one testified to it or mentioned it, and no medical report faintly suggested it. In the prevailing opinion it is stated: “The record does not warrant the statement that plaintiff was ‘awarded her full retirement benefits for total disability.’ ” What the record shows, however, is that, after her employer paid her full salary for four months, during which she was physically incapacitated but kept on the rolls as an employee, the employer, when claimant’s personal physician ordered her not to work anymore, arranged with his insurer, and paid her a disability pension of a lump sum of $900.00, and a monthly pension of $56.37. These payments were made for claimant’s total disability. They were considered retirement benefits for total disability. Were they the full retirement benefits for total disability? That does not specifically appear in the record. Whether they were the full retirement benefits for total disability- — ■ and the prevailing opinion questions the use of the word “full” — or substantial benefits for total disability, is not a crucial issue here, and makes no difference as far as this case is concerned; and, if it causes any dispute, the word “full” can be omitted — and it is hereby omitted— without affecting the results for which this opinion stands; although I believe, as far as the employer and the insurer go, the payments were for full retirement benefits for total disability. Without the addition of the word “full,” the record substantiates that the payments made by the employer and insurer to the claimant were retirement benefits for disability from doing any work whatever for her employer (which was ordered by claimant’s personal physician) — or, for total disability. This important point is undisputed that the retirement benefits paid to claimant by the employer and his insurer were for total disability. The third and final statement in the prevailing opinion with regard to the statement of facts in this opinion is that the report of Dr. Fred Millis 3. “does not justify an assertion that the lady is ‘nearly blind.’ ” In this opinion, it is not stated that the report of Dr. Fred Millis justified an assertion “that the lady is ‘nearly blind.’ ” Dr. Millis had made a report with regard to claimant, stating that “stereopsis is low.” When stereopsis is low, it means that the person’s visual depth perception is low. Dr. Millis also said that she had a vertical deviation in the alignment of her eyes resulting in double vision. (I shall demonstrate later that double vision is perfectly understandable by reference to Webster’s International Dictionary; and the court takes judicial notice of dictionary definitions.) Dr. Millis also said that “due to the vertical deviation and inability to see equally as clear out of both eyes, she suppresses vision in the right eye.” He also stated: “It is almost impossible to stabilize her vision properly.” He further stated that for four years before his examination on March 4, 1967, he had “observed a general deterioration in her vision.” In addition to the foregoing, claimant, who had always driven a car, testified that for the previous year she had been unable to drive a car because the lines kept running together. She further stated, as observed in the prevailing opinion, “that her eye troubles persisted even when she wore glasses; that she did not read much without it’s big reading and big print.” Also quoted in the prevailing opinion is her examination before the trial examiner: “Q. Why don’t you drive? A. I can’t see. Lines run together and I can’t see which way I’m going. I can’t judge my distance. My eyes just — letters seems like it just gets foggy.” It was not stated in this opinion that Dr. Millis reported that “the lady is ‘nearly blind.’ ” But, as this opinion demonstrates and as shall be shown later, the statement that “she is nearly blind” seems completely justified by the uncon-tradicted evidence. As far as the statement in the prevailing opinion goes that 4. “The Vocational Counselor did not say that plaintiff needed ‘unusually good vision for this work.’ ” (reading clinical thermometers as a nurses’ aide and checking patients’ pulse with the use of a second hand on a watch) —extensive discussion follows later. Claimant is a woman fifty-eight years old. She is five feet, six inches tall and weighs 185 pounds. She never went beyond the sixth grade, and has never had any special training. She is married but has no children under the age of eighteen. Her only work experience has been as salad-maker in a cafeteria. As early as November 5, 1960, seven years before the hearing in this case, claimant was admitted to the East Tennessee Baptist Hospital. She was then suffering from a number of afflictions. She was a patient in the hospital at that time for a period of ten days. Doctors Inge, Willien, and Crumley, in consultation, made a diagnosis of claimant, finding that she was suffering from sub-deltoid bursitis, right, and psychoneurosis. At the same time, Dr. Dan Davis reported a diagnosis, which he made at the hospital, of: “(1) Acute periarthritis, right shoulder (2) Diabetes mellitus, mild, controlled (history) (3) Anxiety reaction with conversion manifestations.” With this condition existing in 1960, claimant’s physical and mental state appears to have deteriorated greatly since that time. We shall first discuss claimant’s own testimony; that of her husband, and the evidence of the doctor who examined her to attempt to remedy her visual defects for several years, up to the date of the hearing. Thereafter, we shall examine and consider the general medical evidence in the case. On the hearing held on April 21, 1967, claimant testified, first, with reference to her obesity, stating that diet did not affect it; that, when in the hospital, she was placed on a diet of 1500 calories, she gained, in a short time, four pounds; that she had not driven a car for a long time because her eyesight had become so poor, that the lines ran together and she could not see where she was going; that her optometrist, Dr. Fred B. Millis of Lenoir City, Tennessee, had tried to check her eyes in the Summer of 1966, but that, because of the diabetes — “the sugar has been running so high on me that he can’t check ’em.” While the hearing was still open, and upon the request of the Hearing Examiner for a further report from Dr. Millis, her optometrist, the latter, on May 4, 1967, furnished the requested report, in which he gave his findings of her vision and stated that she had a vertical deviation in the alignment of her eyes resulting in double vision; that due to the vertical deviation and inability to see equally as clear out of both eyes, she suppressed vision in her right eye, and that during the prior four years there had been a general deterioration in her vision. This was the only expert evidence in the case with regard to claimant’s vertical deviation in the alignment of her eyes, resulting in double vision, inability to see equally as clear out of both eyes, inability to stabilize her vision because of variable blood pressure and a diabetic condition, and general deterioration of her vision over the preceding four years, up to and including the time of the hearing; and it supports the undisputed testimony of claimant that she could not drive a car because of her poor eyesight which caused the lines of the road to run together, resulting in her not being able to see where she was going; that her glasses did not help her in reading— “I can’t do no good with my glasses, either”; and that she was not able to read “without it’s awful big reading and big print * * Claimant testified she worked as a salad-maker in the cafeteria at Oak Ridge, for the Union Carbide Company for twenty years and seven months. She stated that the last work she performed was on June 18, 1966; that she felt sick all that week, and on the following Monday morning, she got up to go back to work, and “I just couldn’t stand up. My back and legs just wouldn’t work with me. I was just sick. * * * I went to the doctor that day.” Up to the last day of her work, she testified, “I hadn’t been too regular [in her work]. I’d been, you know, I was sick so much. Well, right at the first of ’66, why I held out pretty good; then about six months of it then, I had it from there on out, you know, just up and down in the hospital, back home. He [the doctor] would keep me off four or five weeks then I’d go back and work a while, and then I went back, I was sick again. He put me in the hospital, and I went back home.” For the first fifteen years that she worked for Union Carbide, “I made it pretty good. * * * The last five years went to going down on me.” She testified it got “really bad, * * * in ’66, and ’65. The last of it. * * * I would work some maybe and I was off some. * * * Got to where I stayed off so much, well in ’66 I was off a lot and so they — I just couldn’t make it. * * * They just stopped; see, they terminated me and I didn’t get to go over there. I didn’t get to go back and make it. * * * They terminated me while I was off sick.” The ground of termination was loss of time. The company told her that if she didn’t take her retirement, they would “automatic fire me, terminate me,” so she told them that if that’s the way they felt about it, she didn’t have any other choice, so she retired. She testified: “Q. What was the reason that you couldn’t do the work? A. Well, I just wasn’t able to do it. I wasn’t able to stand on that concrete and do it. I just couldn’t hold out there. They took me off of it and wouldn’t let me go back on it. Q. Who did? A. Dr. Shea. Q. Dr. Shea? Is he your family doctor ? A. Yeah. Q. Well, what would happen while you were working? You say you couldn’t stand up under it? Explain just what— A. Well, my back — my back and legs would hurt me and they just would give down on me, and I fell two or three times over there, and I just couldn’t stand to stand up under it, and I couldn’t do the work. It was too much heavy lifting, and I just couldn’t do it.” Claimant testified that her job as a salad-maker — making different kinds of salad- — -required her to stand on her feet eight hours, “the whole time, we got thirty minutes for lunch.” She also stood in the line and served the salad. “Some of us stood in line and served it and kept the line going; and others would go back in the back and keep things — ” “Q. Did you have any other problems about doing your work other than your legs and your back? A. Well, no, nothing but through my arms and my shoulders. Well, they got, you know, with that bursitis and stuff and I couldn’t lift no pans or nothing up over my head; and we had to lift them and put them up in a box; and I couldn’t lift them up, had to have help on that.” Part of the claimant’s job was lifting the pans, putting them in the refrigerator ; and she could not lift her arms over her head. She didn’t have the strength to hold things without bracing her arms against her side; if she didn’t, she would drop them. At the time of the hearing, she had had that condition nearly a year. She had not had an operation, because she said they couldn’t operate on her because of her diabetes, because of “this sugar. * * * It won’t heal up.” She also had ulcers, according to her family physician, Dr. Shea. She had been in the hospital six times during the two years prior to the hearing, once for seventeen days, the other times, for eight or nine days, except the last time for five days. She was in the hospital for the arthritis, and then for her diabetes;, and, afterward, for ulcers and a few months before the hearing, for pneumonia. Her diabetes, she said, made her dizzy. She took 65 units of insulin every morning. Before insulin, which she had been taking for about six months, the disease had been fairly well controlled by pills— Orinase. She also was troubled with “smothering,” a difficulty in catching her breath, nervousness. There was no question that she had gall-bladder disease, and had gallstones for several years before the hearing. At the time of the hearing claimant testified she did the cooking for her husband and herself. She could not clean the house, or do sweeping; she had been hiring a woman to do that. Since the cleaning woman had been sick, claimant said she had been “pretending” to sweep and clean, but she couldn’t do it. She could not mop or wax. “It just kills me * * *. It just pulls my back in two.” Claimant’s husband testified that, in addition to his work as a truck driver for Union Carbide, he did the mopping and waxing when he got home at night; that he was worried about her trying to do any such housework because of her diabetes; that a few months before the hearing, he had found claimant on her bed, “blacked out”; “she couldn’t breathe, and I rushed her to the hospital.” He also testified that she had fallen at work on several occasions. First of all, it is to be emphasized that the Union Carbide Company, claimant’s employer at the cafeteria where she worked at Oak Ridge, Tennessee, awarded her retirement benefits for total disability, after her employment with the company for a period of twenty years and seven months. The disability payments from the company commenced in October 1966. At that time claimant was awarded a lump sum payment of $900.00 and payments on disability pension of $56.37 a month. In spite of a high absentee record, because of her numerous hospitalizations, and because of her doctor’s orders to remain at home during many of her painful and chronic illnesses —her last p,eriod of absence from work being for four full months, from June 1, 1966, to October 1, 1966 — the company continued to pay her full pay during that time. The reason claimant gave for the award of retirement benefits from the company for her disability was: “I wasn’t able to work and I wasn’t able to keep up my job and hold up my job * * * I just wasn’t able to do [the work]. I wasn’t able to stand on that concrete and do it. [Dr. Shea] took me off of it and wouldn’t let me go back on it. [He] is [my] family doctor. * * * my back and legs would hurt me and they would just give down on me, and I fell two or three times over there, and I just couldn’t stand to stand up under it, and I couldn’t do the work. It was too much heavy lifting, and I just couldn’t do it * * * my feet flew out from under me or something happened, and I fell and went back under the back. * * * I fell in the canteen hall there [another time] I fell on my back there * * * I got to where, you know, I couldn’t make it back over there.” We proceed, then, to discuss the medical evidence in the case. As has been remarked, in 1960, seven years before the hearing, claimant was admitted to the East Tennessee Baptist Hospital in Knoxville, where she was a patient for ten days, and where three physicians, in consultation, made a diagnosis that claimant was suffering from subdeltoid bursitis, right, and psychoneurosis, and Dr. Dan Davis reported a diagnosis of acute periarthritis, right shoulder, diabetes mellitus, mild, controlled (history), and anxiety reaction with conversion manifestations. On April 22, 1966, claimant was admitted to the Charles H. Bacon Hospital, in London, Tennessee, with an admitting diagnosis of purulent bronchitis, cervical myositis, and hemorrhoids, and a past history of diabetes mellitus, duodenal ulcer, recurrent cystitis, and rheumatoid arthritis. She had a cough and a low grade fever. Her response to antibiotics was poor, and her diabetes poorly controlled. Her doctor, as was stated in the hospital case history, was Walter C. Shea, Jr. Dr. Shea, in the hospital report at that time, stated that he had been treating claimant for two years for bronchitis, gastroenteritis, pyelitis, and that her last illness “has been for Puru-lant Bronchitis.” On an official “Report of Disability Interview” by William P. Merritt, on behalf of the Social Security Administration, on June 27, 1966, Mr. Merritt, after reciting what claimant stated about her complaints, went on to report: “She seemed to walk with difficulty. She had rather extreme difficulty in talking to the point, that at times she was incoherent. When she first sat down she seemed out of breath. Her left arm seemed to be stiff, and she appeared to have limited use of it. * * * She had trouble remembering, writing, responding and understanding questions. She also seemed very nervous. She certainly appeared to be in some noticeable physical distress.” On July 20, 1966, at the request of the Social Security Administration in Knoxville, Tennessee, Dr. Gino Zanolli examined claimant and rendered a general medical report. Dr. Zanolli is a specialist in occupational medicine and preventive medicine, and is Assistant Director of the Oak Ridge National Laboratories at Oak Ridge, Tennessee, which is in charge of periodic physical examinations of employees of the Union Carbide Company, for which claimant worked. Dr. Zanolli reported that claimant was found to be a diabetic in 1959, and that the disease had been controlled with diet and oral medication, but that as a result of a number of annual examinations, most observers felt that the control of her diabetes was only fair, at best; that she had upper gastrointestinal complaints which have been diagnosed as peptic ulcer, “and has had flare ups periodically on this basis. Was diagnosed many years ago as having possible gall bladder disease. * * *» j)r. Zanolli also reported to the Social Security Administration that claimant “has had musculoskeletal complaints of a chronic nature and intermittent back complaints. Several multiple episodes of bursitis, particularly affecting left shoulder and lower extremity joints. She has also had intermittent GU (genito urinary) complaints, presumably on a recurrent cystitis basis. * * * She has had some evidence of peripheral arteriosclerosis, likely associated with her diabetes. She has been overweight most of her work period, ranging from a few pounds to as much as 40 lbs, and has a high absentee record.” Dr. Zanolli’s diagnosis was: Diabetes mellitus, controlled with diet and medication since 1959 but, as he had previously noted, most of the medical observers in “periodic examinations on an annual basis” for the seven years prior to his examination, felt that such control was “fair at best.” Dr. Zanolli diagnosed claimant as also suffering from chronic upper gastrointestinal complaints compatible with peptic ulcer syndrome; multiple joint complaints, low grade, possibly indicative of low grade rheumatoid arthritis; obesity, varying from mild to considerable; borderline high blood pressure; possible chronic gall bladder disease, and sporadic episodes of cystitis. Under the heading of “Physical Findings” appearing on the official approved form of the Department of Health, Education and Welfare, provided by the Social Security Administration for Dr. Zanolli’s report, Dr. Zanolli listed the findings of the “Last complete periodic examination * * * done on 4-13-65, performed by Dr. A. Seaton Garrett, Jr., ORNL (Oak Ridge National Laboratory) Health Division Staff Physician. Specific findings on that occasion were: “(1) Diabetes mellitus (2) Hypertension (BP [Blood Pressure] within normal limits today) (3) Duodenal ulcer (minor symptoms at present) (4) Cholelithiasis with recent episode of cholecystitis (5) Obesity (6) Post-menopausal vaginal bleeding, etiology undetermined.” (Emphasis supplied) Cholelithiasis is defined as: “The production of, or condition of being affected with, biliary calculi, or gallstones.” Cholecystitis is defined as: “Inflammation of the gall bladder.” Webster’s New International Dictionary. On December 5, 1966, Dr. Walter C. Shea, Jr. wrote a letter to claimant’s attorney, which was a part of the evidence before the Hearing Examiner, in which Dr. Shea stated: “The information we have sent to Social Security is completely inadequate for evaluation of her disability for Social Security. “Her condition at this time is that she is a Diabetic on Insulin for some six (6) months, prior to this she was fairly well controlled on oral medication. “She has had two episodes of Duodenal Ulcer with partial obstruction and has had recurrent urinary tract infection with one episode of Pyelitis. She has recurrent Bursitis and Tendonitis of the shoulders. At this time she has a restriction of motion of left shoulder due to Fibrosis secondary to acute Bursitis left shoulder. She has a chronic pulmonary disease, Chronic Bronchitis with numerous episodes of upper respiratory infection. She has Osteo-arthritic changes of the spine. She has a labile hypertension. She has Diabetes which becomes out of control. “At times she is ambulatory with limitation of employment due to chronic and persistent illness. “She is unable to hold down any job which requires much physical labor for any prolonged period of time.” In response to the Hearing Examiner’s request for a more recent statement, Dr. Shea, on May 17, 1967, reported the following which was filed and made a part of the evidence: “Mrs. Jenkins was hospitalized in January 1965, for recurrent flare-ups of her ulcer. She was hospitalized for ten days. At this time, she had Myo-sitis of the left shoulder, her Diabetes was out of control. She returned to work on February 15, 1965. “She was out of work again on March 1, 1965, with chronic backache and peripheral edema. “In October, 1965, she had a flare-up of her ulcer but was not hospitalized. “In November, 1965, she had an acute flare-up of Arthritis with low back strain. “In December, 1965, she had an acute Bronchitis. “In February, 1966, she had an acute purlant Bronchitis. “In April, 1966, she had an acute pur-lant Bronchitis which persisted during the month of April with her Diabetes out of control. She was hospitalized April 22, 1966, and was discharged May 4, 1966. At this time, she was placed on Insulin for her Diabetes. “Through May, 1966, her blood sugar remained elevated even on Insulin. “In June, 1966, she had an acute low back strain and developed an acute Myositis of the left shoulder. This developed into Fibrositis aggravated by Cervical Arthritis. She was out of work the month of June and was hospitalized June 23, 1966, and was discharged on July 2, 1966. She remains out of work all of this time due to shoulder trouble, through September, 1966. “In October she had a laceration of the left hand. “In November, 1966, she had an acute flare-up of her Cervical Arthritis. “In February, 1967, she was hospitalized for an acute Bronchitis. She was hospitalized for six days. “At this time [May 17, 1967] her Diabetes is still uncontrolled. “Due to multiplicity of complaints I believe Mrs. Jenkins has shown over the past two years I believe her absenteeism is rather marked and she is an unreliable employee. “I believe she can be gainfully employed for short periods of time if she can find employment under these circumstances.” In addition, then, to the reports and diagnoses of Doctors Davis, Inge, Willien, and Crumley, in 1960 (which were made while claimant was confined in the East Tennessee Baptist Hospital), we here repeat and group together in outline form, for greater clarity, the treatment and diagnoses of Dr. Shea, Dr. Zanolli and Dr. Garrett to emphasize the musculo-skeletal afflictions of claimant. Dr. Shea had treated and diagnosed claimant’s illnesses and afflictions from July 11, 1961, to May 17, 1967, and, in addition to twenty-nine office calls in a little over three years, from July 11, 1961, to November 11, 1964, had treated her as his patient during hospitalization for (1) duodenal ulcer; (2) diabetes mellitus; (3) myositis of the left shoulder in January 1965, and chronic backache and peripheral edema (disabling claimant for work on March 1, 1965); (4) acute flareup of arthritis with low back strain in November 1965; (5) acute low back strain and acute myositis of the left shoulder, developing into fibrositis aggravated by cervical arthritis in June 1966 (claimant, as a result of shoulder and low back trouble, was hospitalized on June 23, 1966, discharged on July 2, 1966, and remained out of work all of this time from June through September 1966 because of pain resulting therefrom) ; (6) on July 20, 1966, Dr. Zanolli diagnosed claimant as suffering from multiple joint complaints, low grade, possibly indicative of low grade rheumatoid arthritis. Dr. Zanolli, in an official Medical Report of the Department of Health, Education and Welfare, further stated: (7) “Mrs. Irene C. Jenkins has been an employee of Union Carbide for the past 21 years. She has had a number of different medical entities in this time, and has had a number of periodic examinations on an annual basis in this time [twenty-one years]. * * * She has had musculoskeletal complaints of a chronic nature and intermittent back complaints. (8) Several multiple episodes of bursitis, particularly affecting left shoulder and lower extremity joints.” (Emphasis supplied.) (9) In November 1966, Dr. Shea diagnosed claimant as suffering from acute flare-up of cervical arthritis. None of the foregoing acute, painful, chronic conditions are doubted or questioned by anyone. For more than six years, claimant, although suffering almost continual pain from bursitis, peri-arthritis, acute myositis of the left shoulder, chronic backache, acute low back strain, cervical arthritis and other musculoskeletal afflictions, kept on with her work, as well as trained new personnel, in spite of being hospitalized many times; and, in spite of a high absentee record — because of her afflictions and as a result of doctor’s orders — increased her earnings to the point that, as the Hearing Examiner remarked, she had an “excellent earnings record. She hadn’t missed a single quarter of earning social security credits up through March 31st, 1966, and her earnings in some of those years were * * * at least the maximum that is subject to social security taxes.” However, the finding of fact of the Hearing Examiner, sustained by the Appeals Council and the Secretary, that the recurrent episodes of “musculoskeletal complaints were associated with claimant’s failure to follow the regime for diet and medical control for her diabetes” is without any support in the evidence, either in the medical reports filed in evidence, or in the testimony of any of the witnesses; and, in this regard, we refer to the medical witnesses employed by the Government. Two physicians were retained by the Social Security Administration to examine the applicant: one, Dr. I. R. Coll-mann, referred to by the Hearing Examiner as a specialist in gastroenterology, and the other, Dr. R. A. Obenour, referred to as a specialist in pulmonary diseases. Dr. Collmann and Dr. Obenour saw claimant on only one occasion. In Dr. Collmann’s Medical Evaluation of Claimant he has this to say under the heading “Musculoskeletal: Numerous musculoskeletal complaints not well localized but generally affecting all joints, including the back. I cannot get these categorized with any swelling or any significant visible arthropathy.” Under the heading of “Impression” in the Medical Evaluation, Dr. Collmann made no mention of musculoskeletal conditions. Under the heading “Recommendations,” Dr. Collmann stated: “We will evaluate the studies that have been ordered up to the present time, and make final recommendations following that report.” Under “Physical Examination,” Dr. Coll-mann, with regard to claimant’s muscu-loskeletal condition, stated: “Show minimal osteoarthropathy, nothing else.” Dr. Collmann had no X-rays taken, except for the chest and for gastrointestinal trouble; none for musculoskeletal conditions. In the “Recommendations” made following that report, Dr. Collmann in his final statement made no mention whatever of claimant’s musculoskeletal condition. Dr. Obenour, in his report, under the heading “Impression” did not mention anything whatever about claimant’s musculoskeletal condition; and under the heading “Discussion” he stated that claimant presented multiple complaints referable to the musculoskeletal system; but in his final discussion and report to the Social Security Administration, Dr. Obenour said nothing whatever about her musculoskeletal condition. All of the foregoing undisputed evidence clearly supports claimant’s own testimony that when she was ordered by her family physician, Dr. Shea, to enter