Full opinion text
WEICK, Circuit Judge. This appeal is from an order of the District Court granting summary judgment in favor of the Secretary in a proceeding to review the denial of disability benefits under the Social Security Act. 42 U.S.C. § 423. Appellant, Floyd, a truck driver for Armour & Co., who was 55 years of age, on November 3, 1964 filed his application for disability benefits, alleging that since June 8, 1964 he had been unable to engage in substantial gainful activity because of arthritis. His application was denied initially and again on reconsideration by the Social Security Administration. He was granted an evidentiary hearing before a hearing examiner, who adopted findings of fact and concluded that Floyd had failed to show by medical evidence that he was suffering from an impairment of such severity as would preclude him from engaging in substantial gainful activity. Floyd then requested review by the Appeals Council, and his attorney submitted a medical report which indicated arthritis and also a pulmonary condition by history, which had not been considered by the trial examiner. Two additional medical reports were procured by the Secretary: one from an internist, and the other from an orthopedic surgeon. The Appeals Council considered the evidence before the trial examiner and the new medical reports filed with it, and adopted findings of fact from the entire record. It concluded that Floyd had no pulmonary impairment; that his mild arthritic condition did not prevent him from engaging in substantial gainful activity; and affirmed the decision of the trial examiner. The District Court, in proceedings to review, found substantial evidence to support the factual findings of the Secretary and granted summary judgment. Judicial review of decisions of the Secretary is limited. His findings of fact, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g); Rose v. Cohen, 406 F.2d 753 (6th Cir. 1969). Courts are not permitted to try the cases de novo; Walters v. Gardner, 397 F.2d 89 (6th Cir. 1968). Courts may not resolve conflicts in the evidence or decide questions of credibility. Moon v. Celebrezze, 340 F.2d 926 (7th Cir. 1965). In order to be compensable under the 1967 Amendments to the Act, the impairment must result from abnormalities which are “demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d) (3) (1964 ed. Supp. III). These amendments are applicable to the present case as the decision has not become final. Walters v. Gardner, supra. The medical evidence submitted by the Secretary consisted of reports from Doctors Ray, Hoover, Horton, and Whittemore, and the testimony of Doctor Anderson. Claimant submitted hospital records from St. Joseph’s Hospital and reports from Doctors Kasselberg and Myhr. The medical evidence submitted by the Secretary was essentially that claimant had mild arthritis which would not prevent him from engaging in substantial gainful activity. It was also to the effect that his subjective symptoms were not supported by the clinical findings. Dr. Ray stated that his subjective symptoms were far out of proportion to the objective findings. Dr. Hoover gave evidence concerning movements and activities of claimant in the Doctor’s presence, which were inconsistent with the claim of back and neck impairment. He stated: “It is quite apparent that the patient reacts to light touch and gave quite active resistenee to movement when the examiner checked for range of motion. When attention is directed to the back and leg areas, the patient quite obviously gives false responses in straight leg raising and Patrick Hip tests examination. This is quite apparent from the fact that he did not show any limitation of motion or complaint when this area was being observed earlier in the examination without his knowledge.” He further stated: “This patient’s motivation to work is obviously extremely poor. Objective findings do not support the subjective symptoms.” Dr. Anderson in his testimony reviewed the medical findings and opinions and came to the conclusion that claimant did have mild arthritis in his back and neck but— “* * * [T]he use of his extremities and of his back should be satisfactory for anything except heavy lifting.” He gave his opinion that claimant could work a forty-hour week provided he was not required to lift objects weighing more than ten to twenty pounds. Dr. Whittemore found mild degenerative reaction in cervical and lumbar spine but “based on reasonable medical certainty that patient should be able to move about, handle objects and perform sustained activity requiring light exertion.” Dr. Horton found no pulmonary involvement. Claimant did have a cough and the doctor recommended that he abstain from smoking. Dr. Myhr, an internist, who gave a report for the claimant, found that he had “Pulmonary emphysema and fibrosis from history.” He did not relate this to any clinical findings but obtained it from claimant as history. Dr. Horton, who made clinical findings, determined that no such condition existed. Dr. Myhr also found that claimant had “(1) Cervical osteoarthritis, severe, (2) Cervical disc syndrome at C5 and C6, and C6 and C7, (3) Osteoarthritis of the lumbar spine.” He was of the opinion that claimant— “is unable to work at this time mainly because of his pulmonary disease and also because of his cervical disc syndrome which is causing him considerable neck pain, and also because of lumbar spine arthritis.” Dr. Kasselberg made reports concerning three examinations during hospitalization of claimant in St. Joseph’s Hospital in 1964. His first report was that the lumbar arthritic condition improved with medication. The second report indicated there was an excellent prognosis for improvement, and the third indicated that prognosis as to full recovery was limited but as to the immediate future it was satisfactory. Later, on November 11, 1964, he reported that claimant “was not able to return to work at present and I do not know if he will ever be able to return to his usual type of work.” His usual type of work was lifting heavy loads of meat, weighing as much as 229 pounds. The Secretary did not claim that he couid do this, but that he could engage in substantial activity. Claimant testified that he walks about eight blocks a day; that he mows his lawn with a power mower; that he walks to the grocery store for groceries; that he drives an automobile, the longest trip during the last twelve months being about 150 miles; that he spends most of his time (about three hours a day) in a small building, 10' x 10', in his back yard, cutting out spice racks from wood with a jig saw, which he does as a hobby; and that he also makes wooden chains. In view of the medical evidence that claimant’s subjective symptoms were not supportable, and the evidence of his false responses in one of the examinations, we cannot criticize the trial examiner for his questioning of claimant. The hearing examiner found that claimant could perform many sedentary occupations listed in the Dictionary of Occupational Titles, Volumes I and II, published by the Department of Labor. It was proper for the Secretary to take administrative notice that light work existed in the national economy. Breaux v. Finch, 421 F.2d 687 (5th Cir. 1970). The fact that the claimant receives from other sources about $223 per month in disability and retirement pension and insurance is irrelevant to our inquiry. In our opinion there was substantial evidence to support the factual findings of the Appeals Council. It is not our function to resolve conflicts in the evidence or determine issues of credibility of witnesses. This is solely the function of the Secretary. The law required the claimant to prove that his impairment was demonstrable by medically acceptable clinical and laboratory diagnostic techniques. We agree with the Secretary that claimant failed to do this. Affirmed. Judge McCREE concurs.
McALLISTER, Senior Circuit Judge (dissenting). The majority opinion states that the District Court “found substantial evidence to support the factual findings of the Secretary and granted summary judgment,” and that his “findings of fact, if supported by substantial evidence, are conclusive,” and sustained such judgment. 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. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, Mr. Justice Frankfurter declared: “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 directs 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 on them responsibility 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 decision 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 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. National Labor Relations Board, 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, 214 F.Supp. 209, 216, (D.C.) 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 majority opinion, therefore, it appeared that this opinion 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. It is now agreed by this Court that the evidence before the Hearing Examiner was not sufficient to support the findings of fact of the Secretary that the applicant was able to engage in substantial gainful employment. The only issue, therefore, is whether the additional evidence adduced before the Appeals Council, together with the entire record, can be considered affording substantial evidence to support the Secretary’s determination that the applicant was able to engage in substantial gainful employment. The controlling evidence in this case is, therefore, that adduced before the Appeals Council. That evidence consisted of a medical report by.Dr. Lamb B. Myhr; a medical report by Dr. Glen E. Horton, and a medical report by Dr. Wendell L. Whittemore. Dr. Myhr, as related more fully hereafter, reported: “[Claimant’s] physical examination at this time shows him to be a chronically ill man, and appears older than stated age. * * * There is tenderness over the cervical spine bilaterally with limitation of motion of his cervical spine and pain in his neck is made worse by flexion and extension of his cervical spine. * * * There is considerable tenderness over the lumbar spine with a positive straight leg raising bilaterally. No reflex changes are noted. He wears a lumbosacral belt because of his back pain. “X-rays of his cervical spine show marked spondylosis in the region of C5-C6 and also C6-C7. * * * “In summary, this man has (1) Cervical osteoarthritis severe, (2) Cervical disc syndrome at C5 and C6, and G7, Osteoarthritis of the lumbar spine * * * “In my opinion this man is unable to work at this time because * * * of his cervical disc syndrome, which is causing him considerable neck pain, and also because of lumbar spine arthritis.” In summation, Dr. Myhr’s examination and report are explicit in stating that the applicant was a chronically ill man, with tenderness over his cervical spine bilaterally with limitation of motion of his cervical spine, with pain in his neck made worse by flexion and extension of his cervical spine, and considerable tenderness over his lumbar spine, wearing a lumbo-sacral belt because of his neck pain, and with spondylosis of his cervical spine between C5-C6, and between C6 and C7; that applicant had severe cervical osteoarthritis, cervical disc syndrome at C5, C6 and C7, and osteoarthritis of the lumbar spine; and that Dr. Myhr’s opinion, from his examination of the applicant, was that he was unable to work at that time because of his cervical disc syndrome, which was causing considerable neck pain and because of his lumbar spine arthritis. This examination and report of Dr. Myhr, dated October 23, 1965, called for by the Appeals Council, was comprehensive and definite. It further substantiated the final report dated November 11, 1964, of applicant’s treating physician, Dr. Kasselberg, which was accompanied by his attached notes and summaries. If Dr. Myhr’s report is alone considered by the Appeals Council, together with the Hearing Examiner’s report, it could not afford substantial evidence for the Secretary’s decision, for the Hearing Examiner’s report was based upon an erroneous view of claimant’s so-called concessions. To support the Secretary’s decision, there must be further evidence adduced before the Appeals Council, then, that can be considered evidence to support the Secretary’s decision. The only evidence in addition to that of Dr. Myhr, adduced before the Appeals Council, was that of Dr. Glen E. Horton, and Dr. Wendell L. Whittemore, with a report attached to Dr. Horton’s report by Dr. Harry E. Davis. Dr. Davis’ report is concerned with graphs of arterial blood studies. It is not explained; and is irrelevant in view of no claim being made for ailments arising therefrom. We, thus, have, in addition to Dr. Myhr’s report, the reports of Dr. Horton and of Dr. Whittemore to consider as the additional evidence before the Appeals Council, with regard to applicant’s disability. Dr. Horton specializes in pulmonary diseases, and, apparently, it was for this reason alone that his views were sought by the Appeals Council. Inasmuch as there is no claim here for pulmonary disability, most of Dr. Horton’s evidence in this area can be excluded. Dr. Horton stated: “This patient has also been seen in Orthopedic Consultation follow up as well apparently on February 28, 1966.” Dr. Horton’s report was dated February 23, 1966, so he must have known at the time he made his report that Dr. Whittemore had examined applicant on February 28, 1966. Dr. Horton, the specialist in pulmonary diseases, sets forth in his report, referring to applicant, whom he examined: “His chief complaint is ‘arthritis in my hips, and spine and neck.’ “The patient relates that he has had back pain and neck pain, periodically since 1950 with hospitalization at the St. Joseph Hospital by his family physician, Dr. Lyman A. Kasselberg, and has also been seen in Orthopedic Consultation by Dr. Ted Galy and also in Neuro-surgical Consultation by Dr. Peter Wallace, when hospitalized at the St. Joseph Hospital in 1964, it was felt he had hypertrophic arthritis. The patient relates he sees Dr. Kasselberg approximately once every three weeks for an injection and he states, ‘My hips ache and hurt all the time. I have to change my position all the time. It seems like the bones just throb from my hips to my knees.’ “The patient also relates ‘my left arm stays asleep all the time and stings. When I turn my head to the right and back, the feeling comes back just like turning a light on. I have to wear this neck brace to hold my head up and it helps the numbness some in my arm, but it is always there and I also wear a steel back brace. My left leg is worse than my right * * “Other history indicates he has sweating arm pits and takes medication for nerves and arthritis * * * he has numbness and tingling in his hand particularly in his left hand * * *. “Patient is a 56 year old white male who is wearing a neck collar, but did not appear to have any abrasions from this. He apparently did not have his steel back brace on this day of examination, although examination was primarily an evaluation of his pulmonary status.” It seems curious that in a pulmonary examination, Dr. Horton did not know whether applicant was wearing his steel brace. However, Dr. Horton further reported : “He is somewhat thin and looks somewhat worn for the years. Actually his chief complaints are ‘My neck, my legs, and my back * * * ’ He is wearing a neck collar, and objective evaluation of movement of the neck is a little bit difficult as there appears to be some hyper-reaction although he states he gets referred pain to the left arm. However, I would defer to the Orthopedic consultant’s examination and finding. * * * From the orthopedic and arthritic standpoint, I will defer to the specialist to which he has been referred for this. There is considerable disportation between the apparent subjective complaints of the patient and the objective finding observed here, but here again I feel that further documentation from an orthopedic consultant should have first priority in this regard * * The principal point to be noted in the foregoing is that there were no objective orthopedic findings noted or mentioned by Dr. Horton. So, as far as the evidence of Dr. Horton goes, the orthopedic diagnosis of Dr. Myhr is unquestioned, and nothing appears to detract from Dr. Myhr’s view that applicant is unable to work because of cervical and lumbar spinal arthritis. We, then, have discussed two of the three persons producing evidence before the Appeals Council, Dr. Myhr and Dr. Horton. As the evidence before the Appeals Council now stands, then, the only orthopedic evidence—which is the basis of applicant’s claim—is the evidence of Dr. Myhr to the effect that applicant is unable to work because of his severe cervical osteoarthritis, his cervical disc syndrome at C5, C6, and C7, and his osteoarthritis of the lumbar spine. There remains now only the evidence of Dr. Wendell L. Whittemore to consider as being the basis on which the Appeals Council affirmed the decision of the Secretary. Dr. Whittemore was hired in this case by the Secretary. It is upon the evidence of Dr. Whittemore that the case of the Secretary rests, and to prove that case, the evidence of Dr. Whittemore must constitute substantial evidence that the applicant can, in the language of the statute, perform susbtantial gainful employment. Dr. Whittemore’s evidence is: “[Applicant] was discharged from the Army in 1946 with a 60% disability for arthritis and nerves. After that he worked as a truck driver for Armour and Company, and continued working for them until June 4, 1964, when he stopped because of back pain and blackouts. He was advised to retire by Armour and Company and by his family physician, Dr. Kasselberg. * * * He localizes his pain across the lower back essentially lumbosacral, sacroiliac, and gluteal in distribution. * * * Regarding the legs, his pain at times starts in the lower back and extends into the back of the hips and legs, sometimes to the heels, but most of the time it is above the knees. His pain is aggravated by activity, such as standing and sitting, if prolonged, bending and lifting, particularly when he is nervous. His pain is described as an ache, also a soreness. He usually does not have sharp, severe catches of pain. It does vary and to some extent varies with periods of rest, but generally, he is quite stiff and sore in the morning and seems to improve a little after he limbers up. In the mornings, he usually takes about four aspirins, and during the day, he takes about eight aspirins. He emphasizes that his pain is constant, that he has some pain all of the time. Regarding the neck, it has been hurting him for about three years. There has been no injury. It started getting stiff and sore. He began to notice pain when he turned his head. The pain extended into the base of the neck and into the left shoulder region, may go down to the shoulder but seldom into the arms. However, the arms have a tendency to go to sleep from the elbow down to the hand. The hand is worse and stays asleep almost constantly, described as almost a constant tingling in the hand. This is especially bad at night and frequently wakes up with the hand asleep. He has no complaints at all regarding the right arm. He has worn a collar for his neck about three years at the advice of Dr. Kasselberg. He wears it PRN when he has pain. It seems to help but does not give complete relief. He wears a corset. This was ordered for him when he was hospitalized at St. Joseph Hospital in June 1964, by Dr. Kasselberg. He was admitted at this time for evaluation regarding his back pain, and a myelogram was done by Dr. Walláce. He stayed in the hospital about one week. He was readmitted to St. Joseph Hospital in June 1964 and again in August 1964, staying 12 to 14 days respectively. Treatment consisted of physical therapy, traction, and a corset. He says the corset helps. It gives him some relief but does not relieve all of his pain. The patient had surgery in 1957. Part of his lung was removed because of his spitting up blood. In 1947, an epigastric hernia was repaired by Dr. Mc-Caughan. In 1951, his appendix was removed by Dr. Kasselberg. He had meningitis when he was 38 years old and was treated at the Isolation Hospital. “EXAMINATION: The patient is 56 years old, 5 ft. 9% in. tall, average weight 140 lbs. The patient is slender. The pelvis is level. He has relatively good standing posture. There is a large scar, right chest, consistent with chest surgery. The lumbar segmentation on movement is good, at least 3+ flexion. He does complain of pain on flexion, also recovery from flexion and backward bending. He flinches on hyperextension and on lateral bending. There is generalized soreness to palpation through the lower back, but no intrinsic muscle spasm is demonstrated. There is no paraspinal tightness. There is soreness to palpation in both sciatic notches, and left is worse. There is no thigh pain. There is no pain along the course of the sciatic nerve in the thigh. With the patient sitting, he flexes the lumbosacral well and with relatively little pain. There is no soreness to palpation about the hips and trochanteric regions. Range of motion of the hips is normal. Range of motion of the knees is normal, and there is no crepitation or effusion. Straight leg raising is full 90° without any definite sciatic pain, and deep tendon reflexes are normal. Leg lengths are 37 in. The right calf is 12½ in., left calf 12½ in. Both thighs are 16¾ in. Cervical spine range of motion is flex-ion 3+ with pain, extension 4+, lateral bending, left, 2+, guarded and painful. Right lateral bending is 2+, no pain. Left rotation is 4+ with pain, right rotation is 4+, no pain. Both shoulders have a normal range of motion, no pain, no atrophy, and no local tenderness. Deep tendon reflexes, upper extremities, are normal. Both arms measure 10% in, at the midbiceps. The patient moves about the room without a limp. He gets on and off the examining table with ease. He squats easily. He raises on the toes and heels without effort and without any trouble. Circulation is good. There is no evidence of any extensor weakness in the feet and ankles. “X-RAYS: Cervical Spine, AP Film: Essentially normal in appearance. Some degenerative reaction is noted. Lateral Film: Shows a degenerative reaction between C-4— C-5, between C-5-C-6, and between C-6 — C-7. C-5 and C-6. show considerable distortion from osteophytes anteriorly. The interspaces between C-5—C-6 and C-6—C-7 are very narrow. The cervical curve is flattened. There is no reversal. Lumbar Spine, AP Film: Shows five lumbar segments, spina bifida occulta S-l, contrast media noted. Lateral Film: Shows some mild degenerative reaction, L-2-3-4. Interspaces, however, are well maintained. “In regard to the cervical spine, the patient has a degenerative joint disease which is advanced and old. The lesions consist of discogenic degeneration, C-4-5-6 and 7. This condition is not necessarily painful. Lesions of this type are frequently seen in patients with no symptoms. However, a certain amount of vulnerability to stress is valid, and for this reason, activities requiring arduous exertion would be objectionable. “I believe that this patient could perform sustained physical activity requiring light exertion. “Concerning the lower back, there is some degree of degenerative joint disease which is mildly advanced. His pain appears localized in the lumbosacral area without any evidence of radicular nerve involvement or intrinsic reflex muscle spasm. “It is my opinion, based on a reasonable medical certainty, that the patient would not be able to carry out arduous physical exertion, but he should be able to move about, handle objects, and perform sustained activities requiring light exertion.” Now, what does this all mean in the light of a claim for disability benefits under the Social Security Act? It means that in this case, the evidence adduced before the Appeals Council, together with the evidence before the Hearing Examiner, must afford substantial evidence to support the Secretary’s determination that the applicant was able to perform substantial gainful work. We agree that the evidence before the Hearing Examiner alone, was not substantial evidence to support the determination of the Secretary. Did, then, the evidence adduced before the Appeals Council and based upon the entire record, support the determination of the Secretary? The answer to this question must be resolved by our conclusions as to the evidence of Dr. Whittemore, since the only other evidence before the Appeals Council was that of Dr. Myhr, whose evidence was to the effect that claimant was unable to work because of cervical osteoarthritis, cervical disc syndrome, and osteoarthritis of the lumbar spine. The evidence of Dr. Whittemore, then, had to afford substantial evidence in support of the Secretary’s determination that the applicant was able to perform substantial gainful employment. Did Dr. Whittemore’s evidence afford such support to the Secretary’s determination? In our opinion, it did not. He stated that it was his opinion that claimant would not be able to carry out arduous physical exertion, but he stated applicant should be able to move about. The fact that applicant could move about does not conform to the statutory standard that he be able to perform substantial gainful employment. Dr. Whittemore added to the ability of moving about, and handling objects, that applicant would be able to “perform sustained activities requiring light exertion.” This does not conform to the statutory standard of performing substantial gainful activity. “The activity in which the plaintiff must be able to engage must not only be ‘gainful’ but it must also be ‘substantial.’ ” Dunn v. Folsom, 166 F.Supp. 44, 49 (D.C.Ark.) And, now, this case in which so much research has been made, and about which so much has been written, comes down to the single crucial point: Dr. Whittemore’s view and evidence that the applicant should be able to perform sustained activity requiring light exertion, fails to meet the statutory standard that claimant can perform substantial gainful activity. On this point, it was held in the unanimous opinion of this court in Massey v. Celebrezze, 345 F.2d 146, 157 (C.A.6) that "in proving that an applicant is not precluded from performing substantial gainful employment, it is not enough to rely upon testimony that a claimant can do ‘light work.’ What that light work consists of must be specified.” (Emphasis supplied) In the instant ease, no type of “light work” was specified. Strange to say, there was no evidence of such type of work even from a Vocational Counselor; for it is a unique case, in this regard, since no Vocational Counselor was sworn as a witness. Our holding in Massey v. Celebrezze, supra, has never been reversed. It is in keeping also with other cases heretofore cited and relied upon by this court. In Clemochefsky v. Celebrezze, 222 F.Supp. 73, 78 (D.C.Pa.) the court said: “Once proper medical evidence, buttressed by subjective evidence from claimant, has shown a sufficiently severe impairment, it must be determined if such impairment, plus claimant’s educational and work status, preclude any subsantial, gainful activity. Blankenship v. Ribicoff, 206 F.Supp. 165 (S.D.W.Va.1962). In cases of this kind, where the claimant alleges inability to engage in substantial, gainful activity, and his personal physician, the man in whose charge claimant has entrusted his health, claims likewise, if examining physicians are to dispute this contention, they must give the medical basis for their opinions. It is not sufficient to say that a man suffers some form of physical impairment yet can do ‘light work.’ It must be shown medically that he can perform the physical activities certain jobs require without serious aggravation to present physical impairment or to general health. Otherwise, the Hearing Examiner’s findings would amount to pure speculation.” (Emphasis supplied.) From the foregoing, it seems obvious to the writer that the evidence adduced before the Appeals Council did not, when considered with the entire record, afford substantial evidence to support the Secretary’s determination. After a meticulous examination of the record, we are of the opinion that: (1) Appellant’s disability from performing substantial gainful employment was sustained by substantial evidence; (2) The determination of the Hearing Examiner that appellant, although disabled from returning to his former work, could engage in substantial gainful activity by performing many of the jobs listed in “The Dictionary of Occupational Titles,” concerning which no witness testified and no evidence was introduced, was not supported by substantial evidence; (3) The Hearing Examiner and the Appeals Council committed prejudicial, reversible error by failing to employ the proper legal standard in making their determination that appellant was not disabled through their application of the rule in Theberge v. United States, 2 Cir., 87 F.2d 697, 698, which this court has repeatedly held to be reversible error; (4) That the Hearing Examiner and the Appeals Council were guilty of reversible error in holding that Congress established a conservative program for the allowance of disability benefits, whereas the Act must be liberally construed to favor the granting of such benefits, and (5) The Hearing Examiner based his cross-examination of appellant on misstatements of the evidence to the disadvantage of applicant; the Hearing Examiner repeatedly badgered appellant because he was receiving veteran’s compensation, retirement pension, and payments for total disability as a result of his employer’s pension plan, on the ground that he was not looking for work, in spite of the fact that his doctor had advised against it, and both the employer’s physician and his own physician had found that he was permanently and totally disabled; and the Hearing Examiner by the manner of his cross-examination, caused appellant, who was nervous and was suffering from a chronic anxiety reaction (connected with his war service), to agree, because of his sudden indignation, that he could perform certain work, such as egg candling and other “light” occupations, without regard to the evidence that he was totally and permanently disabled, although his own evidence that he suffered pain continuously and could stand for only a short time, sit for a short time and that it was necessary to relieve his pain by lying down. As a result, the Hearing Examiner, who is required to hear applicants, or their attorneys, patiently, kindly, and courteously, displayed prejudicial bias in denying appellant’s application, and the decision of the Secretary based thereon should be reversed. Moreover, the Hearing Examiner committed error in dismissing the evidence of the practicing physician who had been treating appellant over a period of seventeen years on the erroneous ground that the physician did not know much about applicant; and the Hearing Examiner erroneously accepted and relied upon, in deciding the case, the evidence of physicians who were employed and paid by the Social Security Administration and had seen the applicant on only one occasion for a routine examination, as against the evidence of appellant’s physician who had treated him for those many years, as well as the evidence of another physician whose evidence was that appellant was permanently and totally disabled. Such a single examination by a physician, or physicians, for the Social Security Administration, contrasted with the evidence of the practicing physician who had been treating the applicant for a period of years, could not, under the adjudicated cases, be the basis of a finding supported by substantial evidence. As early as February 26, 1962, appellant was admitted to St. Joseph Hospital in Memphis, Tennessee, for treatment of his arthritis by Dr. Lyman A. Kasselberg, his attending physician. Appellant was discharged on March 10, 1962, with a diagnosis of cervical radiculitis and other arthritic conditions, and with a prognosis of “satisfactory.” Two years later, on June 8, 1964, appellant was admitted to the hospital as a result of a “black-out,” which he suffered while working at home on a sink. He also had back and neck pain which Dr. Kasselberg diagnosed as cervical and lumbar arthritis, stating he gradually improved on medication. While in the hospital, appellant had many X rays taken, and a complete series of tests. It appeared to be impossible to ascertain why he suffered the “black-out.” He, however, continued to undergo considerable suffering from arthritic neck and back pains, and he received “shots” from Dr. Kasselberg. All of the foregoing appears in the reports of Dr. Kasselberg and of Paul L. Lee, Claims Representative of the Social Security Administration. Mr. Lee has also reported that appellant, at the time of contact on November 3, 1964, among other matters, disclosed that he had an eighth-grade education; and at that time he was wearing a brace around his “mid-section.” Appellant informed Mr. Lee, during his interview, that he had been nervous and tense for many years, since the conclusion of his service in World War II, which will hereafter be more fully related. He had been granted, according to Mr. Lee, a veteran’s disability payment of 50%, of which 30% was awarded because of his nervous condition, which was service-connected. According to Mr. Lee, appellant’s fingers on both hands seemed slightly puffed, and he .appeared uncomfortable and rubbed his thighs. Mr. Lee noticed that when appellant rose to leave the interview, “he leaned forward on his knees and his back seemed to ‘catch’ when he rose to leave. * * * He seemed to wobble as if his legs would give way.” When appellant was hospitalized on June 8, 1964, it was the first day that he had missed a workday with Armour because of his arthritis, with the exception of twelve days’ hospitalization in 1962. Since 1964, following the instructions and prescription of Dr. Kasselberg, appellant has worn a steel back-brace, or corset, on his lower spine, and a surgical collar, made either of leather or of a stiffly-woven material, for his neck pain. On July 1, 1964, appellant was again admitted to the hospital for treatment of pain in his back, which Dr. Kasselberg found was aggravated and, at that time, there was considerable pain radiating down the course of both sciatic nerves. There was also tightness of the cervical and lumbar spine musculature with limitation of motion because of this tightness and pain. Pain in the cervical spine, according to Dr. Kasselberg, radiated to both shoulder girdles. Appellant was hospitalized for twelve days on this occasion. He was treated with traction and physiotherapy and cortisone preparations. He also had muscle relaxants and gradually improved. He was discharged as considerably improved and was to be followed on an out-patient basis, with an excellent prognosis. On August 27, 1964, appellant was again admitted to the hospital because of pain in his cervical spine and pain in the lumbar spine. He had previously responded “to physical therapy and muscle relaxants, tractions, etc.” but, as Dr. Kasselberg stated, “lately has gotten progressively worse and is admitted for further definitive studies. * * * There is considerable amount of tenderness over the lumbar spine and considerable amount of limitation of motion of the lumbar spine because of muscle tightness and pain, with radiation of this pain down both sciatic nerves. * * * Straight leg-raising is painful.” Appellant was discharged from the hospital on September 6, 1964, at which time he was treated with Butisolidine Alka, an anti-inflammatory medicine; and he was fitted with a lumbosacral support. His response at that time was quite satisfactory as the treatment resulted in his being “ambulatory,” without any difficulty walking up and down steps, and the sciatic nerve pain had almost disappeared. Dr. Kasselberg’s diagnosis at this time was: “Hypertrophic arthritis of the lumbar spine with radiculitis,” and the prognosis was: “As to full recovery, is limited; as to the immediate future, seems to be quite satisfactory.” On November 11, 1964, Dr. Kasselberg reported: “Since being discharged from the hospital, Mr. Floyd has continued under my care and his recovery has not been too satisfactory. He is not able to return to work at present and I do not know if he will ever be able to return to his usual type work.” Later, Dr. Kasselberg stated that appellant would never be able to return to work because of his back condition; and it was when he came to this conclusion that he took the matter up with the physician representing appellant’s employer; and the two physicians, as well as the employer, and the two insurance companies concerned, granted appellant a pension for permanent and total disability. Dr. Kasselberg told appellant not to work at all —that he was not “supposed to do anything. The doctor told me not to do anything. * * * The doctor told me not to do any kind of work.” Following the hearing before the Hearing Examiner on August 31, 1965, the Appeals Council granted review of the Hearing Examiner’s decision. This review was secured through the efforts of appellant’s counsel, thereafter retained, who procured the additional information in the form of a medical report, which was dated October 23, 1965, signed by Lamb B. Myhr, M. D., a member of the Department of Internal Medicine at the Jackson Clinic of Jackson, Tennessee, and submitted to the Appeals Council. In the report, Dr. Myhr stated that he had examined appellant; that appellant’s main complaint was neck pain and that this pain extended into the posterior surface of his scalp bilaterally; that he had considerable pain through both shoulders and into both arms; that he wore a Thomas collar (already described as a surgical collar of leather, plastic or thickly-woven material, to keep the vertebrae from impinging on the nerves in his neck). Dr. Myhr also stated that appellant complained of severe pain in his low back region and in both legs and hips. He also mentioned the examination and diagnosis by Dr. Kasselberg that appellant was suffering from cervical and lumbar arthritis. Appellant informed Dr. Myhr that he was unable to work because of the pain in his neck, pain in his hips, lumbar region, and legs. After appellant had been repeatedly hospitalized and his sick pay had been used to the maximum allowance to which he was entitled on the basis of his thirty years of service, Dr. Kasselberg directed appellant not to return to work, and consulted with the physician of Armour and Company, appellant’s employer. It was at this time, as previously stated, that Dr. Kasselberg and the employer’s physician went over the matter of appellant’s physical condition and, as a result, the company, arriving at the conclusion that appellant was permanently and totally disabled, filed for permanent and total disability of appellant under its pension plan. The two insurance companies concerned in the pension plan of Armour and Company agreed with the conclusion of the company, its physician, and appellant’s physician, and a pension for permanent and total disability was granted to appellant in the amount of $95.00 a month. For his thirty years of service, appellant also receives $52.00 monthly as retirement pay. The Personnel Manager of Armour and Company appeared as a witness on the hearing and afterward testified to the foregoing. He was asked by the Hearing Examiner whether appellant was a very good employee. He replied: “He was a very good employee.” Appellant’s earnings for the year before he stopped work on his doctor’s orders, amounted to $4,800. On the day he was removed to the hospital, appellant’s earnings were much higher than in 1948, as will hereafter appear. As late as the date of the hearing of his claim for disability benefits on August 31, 1965, appellant was seeing Dr. Kasselberg every three weeks. The Government conceded that appellant received tablets for arthritis, and injections continually for pain, at the time of his visits to Dr. Kasselberg; and the latter reported he had placed appellant on Bonine, a drug that remedies dizziness, and Butisolidine Alka, an anti-inflammatous drug. Dr. Myhr reported; “His physical examination at this time shows him to be a chronically ill man and appears older than stated age. * * * There is tenderness over the cervical spine bilaterally with limitation of motion of his cervical spine and pain in his neck. * * * There is considerable tenderness over the lumbar spine * * *. He wears a lumbosacral belt because of his back pain. “X-rays of his cervical spine show marked spondylosis in the region of C 5-C 6 and also C 6-C 7. There is a marked narrowing of the interspace between C 5 and C 6 and C 6 and C 7 with secondary arthritic changes. * * * * * * “In summary, this man has (1) Cervical osteoarthritis, severe, (2) Cervical disc syndrome at C 5 and C 6, and C 6 and C 7, (3) Osteoarthritis of the lumbar spine, (4) Pulmonary emphysema and fibrosis from history, (5) Chronic anxiety reaction (service connected). “It is my opinion this man is unable to work at this time mainly because of his pulmonary disease and also because of his cervical disc syndrome which is causing him considerable neck pain, and also because of lumbar spine arthritis. Lamb B. Myhr, M. D.” The Appeals Council was, however, not persuaded by Dr. Myhr’s evidence to vary its decision from that of the Hearing Examiner, to which it referred and upon which it relied in its conclusion that appellant was not disabled from substantial gainful activity. At this point, then, we have appellant, fifty-six years old at the time of the hearing, who had been engaged in heavy labor for more than thirty years for Armour and Company. He had become disabled during his service as a soldier in World War II, and since then has received 50% service-connected disability payments from the Veteran’s Administration, which amounts to $77.00 a month, a large share of which is for disability caused by arthritis from which he has been suffering since 1947. During the year prior to his application for disability benefits, he had fainted several times, and had been hospitalized as a result of syncope, and because of increasing pain of arthritis in his cervical and lumbar spine. Between June 8, 1964, and August 26, 1964, appellant had been hospitalized four different times for pain from his neck and back. Two doctors, one, his treating physician, agreed that he was permanently and totally disabled. The third physician, Dr. Myhr, giving evidence on appellant’s behalf, after a careful examination of him and after taking X rays and setting forth his interpretation of them with the reasons for his opinion, stated appellant was not able to work. His employer, and the two insurance companies involved, granted him his retirement pension and also a pension for permanent and total disability. This was the workingman, who was described by the Personnel Manager of Armour and Company as having been “a very good employee” during his thirty years of service; who had missed only twelve days of work because of arthritis, during the entire period of his employment; and who presented himself for the consideration of the Hearing Examiner and the Appeals Council wearing a steel back-brace and corset and a surgical collar around his neck, which had been prescribed by his physician to alleviate his lumbar and cervical pain. In this condition, and because of his pain and repeated hospitalizations, and supported by the opinions of three physicians that he could no longer work, he petitioned for the allowance of disability benefits out of the Social Security fund, to which he had contributed during all of his working years. To his petition, the answer was, “No.” In our view, this answer was entirely unjustified. Appellant’s proof of his inability to engage in substantial gainful activity was sustained by substantial evidence. The determination that appellant was not disabled from engaging in substantial gainful employment was not sustained by substantial evidence. The chief cause of appellant’s disability is pain. It is claimed by appellant and conceded by the Government that he suffers pain from cervical and lumbar osteoarthritis. Appellant’s evidence, and the evidence of his attending physician, as well as that of Dr. Lamb B. Myhr, is that appellant is unable to work because of cervical and lumbar pain. The medical evidence of the Government is, not that appellant does not suffer cervical and lumbar pain but that the pain is not severe enough to prevent him from “performing sustained activities requiring light exertion,”—without specifying what kind of work appellant could do. In fact, there is no evidence whatever in the case from any witness as to what work or jobs appellant could perform while suffering from the cervical and lumbar pain from which he, admittedly, suffers. Although it is conceded that appellant could not return to his former work because of his disability, no Vocational Counselor, or other witness, suggested any kind of lighter job he could do. The only discussion of such possible jobs was by the Hearing Examiner, who, admittedly, had no expertise, and who suggested jobs, such as egg candling, that appellant could do, and read into his findings extensively from “The Dictionary of Occupational Titles,” stating that appellant could perform hundreds of such jobs. Appellant himself testified on cross-examination by the Hearing Examiner: “Q. If the grocery man gave you 25 pounds of groceries, or a 25 pound sack of flour, could you carry it 2 blocks without any trouble, in your opinion ? A. When I pick it up a pain grabs me in each hip. Q. In other words, you don’t think you could carry 25 pounds 2 blocks ? A. I wouldn’t even pick up 25 pounds. * * * Q. Has your doctor told you that exercise would be good for you—bending or walking? A. He told me not to try to do anything. He told me—I told him about hurting trying to work. He says, ‘You ain’t supposed to do anything * * *.’ Q. Where does [your arthritis] affect you most—your back? A. Right between my hips and in the hips (indicating). Q. Your low back and hips? A. Yes, and my neck. Q. When did it start? A. It started in my neck * * * in my hips. When I went to the Army—in my hips when I went to the Army. * * * Q. Do you have arthritis in all your joints more or less? A. More or less in all my joints. Q. Where is it worse—in your back? A. In my back and my hips. Q. Where is the worst pain? A. In my back and my spine (indicating). Q. In your low back? A. Yes. Q. Are you taking any medicine of any kind? A. Four tablets a day and about four to eight aspirins a day. Q. Is that four tablets prescription medicine that the doctor gives you? A. Yes. Q. And about four aspirins ? A. Four to eight. Some days it’s worse. Q. Is it worse in damp weather—cold weather? A. A change of weather, you can tell it just as well. Q. Do you sleep pretty good? A. No, sir. Q. On an average how many hours do you sleep in 24 hours. That is a whole day and night put together. A. Not over six. Q. Do you ever take sleeping tablets ? A. No, sir. I can go to sleep all right. My arm wakes me up. Q. What happens to your arm? A. I turn on my left side and that nerve—and the arthritis will pinch the nerve in my arm and will put it to sleep from there down (indicating) and it hurts so bad it wakes me up. Q. In other words, it gets numb from your shoulder down? A. From my elbow down. It doesn’t bother me from my elbow up. From my elbow down it’s dead and it wakes me up. Q. How often do you see your doctor? A. Every three weeks.” In addition to the testimony of Mr. Floyd in support of his application for disability benefits, we repeat that Dr. L. A. Kasselberg had been appellant’s attending physician for a period of seventeen years, since 1947, when he first treated appellant for his arthritis by administering “shots” and prescribing pain-killing drugs for him, which continued even during the time of the hearing and during the careful examination by Dr. Myhr, who based his findings—not only upon X rays which he had taken, but on the bodily examination of appellant. We proceed then to the cross-examination of appellant by the Hearing Examiner and to the reports of physicians employed by the Social Security Administration. Briefly, at the beginning, it should be emphasized that each of the Social Security physicians saw appellant on only one occasion for a routine examination. Dr. R. Beverley Ray, who, appellant stated, never examined Mm, stated that he “saw” appellant; and his conclusions were: “This patient’s subjective symptoms are far out of proportion to the objective findings and I do not consider him sufficiently disabled to justify the granting of Social Security Benefits.” This physician apparently had no knowledge of what type of disability justified the granting of Social Security benefits. He did not intimate that appellant was able to engage in substantial gainful employment. Another physician employed by the Social Security Administration, Dr. Glenn E. Horton, stated with regard to the only real disability upon which appellant relied: “From the orthopedic and arthritic standpoint I will defer to the specialist to which he had been referred to for this.” Without taking any X rays of appellant’s neck or back—or even seeing any such X rays, he stated: “There is considerable disportation between the apparent subjective complaints of the patient and the objective finding observed here, but here again I feel that further documentation from an orthopedic consultant should have first priority in this regard with my efforts primarily as a specialist in Pulmonary diseases and evaluation of this particular system.” Dr. Horton was a specialist in pulmonary diseases. Another physician employed by the Social Security Administration was Dr. Wendell L. Whittemore, who, after a long history embodying what appellant told him and Dr. Kasselberg’s treatment of him, filed his report which appears in extenso on pages 80-82 ante. Dr. Hoover saw appellant only on this single occasion. He took no X rays of his neck or back. He did not know appellant. His findings, or impressions, were “by history,” or only by what he had learned from some other report or statement. His statements that the arthritis of the lumbar spine and arthritis of the cervical spine were “mild, by history, [and] relatively asymptomatic,” did not constitute anything but hearsay evidence. Dr. Hoover reported: “Treatment * * * has been given by Dr. L. A. Kasselberg who is seen every three weeks. * * * The patient was also seen by Dr. Ted Gal-yon, an orthopedist and Dr. Peter Wallace, a neurosurgeon. Mr. Floyd states that these doctors placed him on a total disability, and that the company doctor said that he could not work. * * Supposedly there is numbness and weakness of the left hand and arm from a cervical spine disc, and this is rather difficult to evaluate. * * * Presently, staying in one position for an hour or more is said to create extreme discomfort in the back with resulting deep, diffuse pain and marked stiffness. Standing for more than a few minutes is said to cause pain in the legs. This is not a sciatic-type pain, nor is it any radiation of pain from the back area, but seems to be pain that envelops the hips, thighs and loxver legs as that associated with muscle tenderness. Some tenderness of the muscles is present especially after sleeping in one position for any time. * * * The patient does state that he has numbness of the left arm and hand but his indication of areas of decreased sensation were totally unanatomical.” (Emphasis supplied.) Mr. Lee, the Social Security Administration’s Claims Representative, had previously reported that when appellant came to see him, several months before Dr. Hoover’s report, appellant’s hands and fingers seemed slightly puffed. Dr. Hoover also reported the veteran’s disability payments of 60% were stopped in 1950. The fact was the disability payments were not for 60% disability, but for 50%, and they were not stopped in 1950, but have continued ever since World War II. Dr. Hoover also reported appellant was “well developed, well nourished, * * * in no acute distress and who does not appear chronically ill.” Dr. Horton, another physician for the Social Security Administration, reported of appellant: “He is somewhat thin and looks somewhat worn for the years.” Three months before Dr. Hoover reported that appellant did not “appear chronically ill,” Dr. Myhr had reported of appellant: “His physical examination at this time shows him to be a chronically ill man and appears older than stated age.” In his report, Dr. Hoover is, therefore, opposed by the reports of Dr. Horton of the Social Security Administration, and by Dr. Myhr. Dr. Hoover concluded: “Examining the neck reveals the patient to overreact to light touch. * * * Musculoskeletal examination did not reveal any abnormality of the joints or muscles. It is quite apparent that the patient overreacts to light touch and gave quite active resistance to movement when the examiner checked for range of motion.” Dr. Hoover ended his report with a statement which we have noticed in other disability benefit cases which have been reversed, by reporting: “The patient’s motivation to work is obviously extremely poor.” This, without any X rays of his cervical and lumbar spine, and after a single examination. Appellant had said nothing to Dr. Hoover about working; but had reported to him only the opinions of four doctors that he could not work, the fact of his several hospitalizations, and that he was seeing Dr. Kasselberg every three weeks, who gave him tablets and injections for arthritis at such times. Of all the physicians who examined appellant, Dr. Hoover was the only one to state that appellant’s motivation to work was extremely poor. Before discussing the additional evidence submitted on behalf of the Secretary, and upon which the Hearing Examiner based his decision, it is to be remarked that appel