Sam May v. John W. Gardner, Sec'y of Health, Educ. & Welfare, 362 F.2d 616 (6th Cir. 1966). · Go Syfert
Sam May v. John W. Gardner, Sec'y of Health, Educ. & Welfare, 362 F.2d 616 (6th Cir. 1966). Cases Citing This Book View Copy Cite
79 citation events (2 in the last 25 years) across 17 distinct courts.
Strongest positive: Ounesivixay v. Kijakazi (waed, 2022-05-03)
Treatment trajectory · 1966 → 2026 · click a year to view as-of
1966 1996 2026
Top citers, strongest first. 23 distinct citers. How cited ↗
discussed Cited as authority (rule) Ounesivixay v. Kijakazi
E.D. Wash. · 2022 · confidence medium
The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 15 The District Court Executive is directed to file this Order, provide copies to 16 counsel, and CLOSE THE FILE. 17 DATED May 3, 2022 . 18 s/Mary K.
cited Cited as authority (rule) Joe W. Parker v. Secretary of Health and Human Services
6th Cir. · 1991 · confidence medium
Cf. Atterberry v. Secretary of Health and Human Services, 871 F.2d 567, 569 (6th Cir.1989); May v. Gardner, 362 F.2d 616, 617-18 (6th Cir.1966).
cited Cited as authority (rule) Harry L. Maple v. Secretary of Health and Human Services
6th Cir. · 1991 · confidence medium
Cf. Atterberry v. Secretary of Health and Human Services, 871 F.2d 567, 569 (6th Cir.1989); May v. Gardner, 362 F.2d 616, 617-18 (6th Cir.1966).
discussed Cited as authority (rule) Velma R. SMITH, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee
6th Cir. · 1989 · confidence medium
The propriety of such a conclusion is strengthened by the fact that Smith bore the entire burden of proving her entitlement to disability benefits, May v. Gardner, 362 F.2d 616, 617 (6th Cir.1966), which includes the burden of showing that certain work experience is not past relevant work.
discussed Cited as authority (rule) Velma R. Smith v. Secretary of Health and Human Services
6th Cir. · 1989 · confidence medium
The propriety of such a conclusion is strengthened by the fact that Smith bore the entire burden of proving her entitlement to disability benefits, May v. Gardner, 362 F.2d 616, 617 (6th Cir.1966), a burden that includes the burden of showing that certain work experience is not relevant past work. 13 We therefore conclude that, however the ALJ analyzed the question whether Smith's experience at Hall Lamp constituted relevant past work, he had ample record evidence to support his conclusion that it did. 14 Smith's second contention is that, once the ALJ concluded that her residual functional ca…
cited Cited as authority (rule) Gross v. Weinberger
E.D. Ky. · 1975 · confidence medium
Halsey v. Richardson, 441 F.2d 1230, 1236 (6th Cir. 1971); May v. Gardner, 362 F.2d 616, 617 (6th Cir. 1966).
cited Cited as authority (rule) John G. Myers v. Elliot L. Richardson, Secretary of Health, Education and Welfare
6th Cir. · 1972 · confidence medium
Section 205(g) of the Act, 42 U.S.C. § 405 (g); May v. Gardner, 362 F.2d 616, 618 (CA 6, 1966) ; King v. Celebrezze, 341 F.2d 108, 109 (CA 6, 1965).
discussed Cited as authority (rule) Harley O. Garrett v. Robert H. Finch, Secretary of Health, Education & Welfare (2×)
6th Cir. · 1970 · confidence medium
May v. Gardner, 362 F.2d 616, 617 (6th Cir. 1966); Erickson v. Ribicoff, 305 F.2d 638, 640 (6th Cir. 1962).
examined Cited as authority (rule) Irene C. Jenkins v. John W. Gardner, Secretary of Health, Education and Welfare (16×)
6th Cir. · 1970 · confidence medium
Millis, O.D., dated at Lenoir City, Tennessee, Mrs. Jenkins’ place of residence, advising of an examination of Mrs. Jenkins on May 4, 1967 .
cited Cited as authority (rule) Jackson v. Secretary of Health, Education & Welfare
N.D. Ohio · 1970 · confidence medium
May v. Gardner, 362 F.2d 616, 617 (6th Cir. 1966).
discussed Cited as authority (rule) Patterson v. Finch
N.D. Ohio · 1970 · confidence medium
On April 30, 1967, he was admitted by Dr. Hoyt to Akron City Hospital “with possible herniated disc.” On May 4, 1967 , he was discharged after “conservative treatment some partial relief of symptoms, may continue with brace and recheck by me in 3 wks.
discussed Cited as authority (rule) Ragan v. Finch
E.D. Tenn. · 1969 · confidence medium
May v. Gardner, C.A. 6th (1966), 362 F.2d 616, 618 [2], The possibility that two inconsistent conclusions may be drawn from the evidence does not prevent findings of an administrative agency from being supported by substantial evidence.
cited Cited as authority (rule) Stravakis v. Gardner
D.C. Cir. · 1969 · confidence medium
May v. Gardner, 362 F.2d 616, 617 (6 cir. 1966)
cited Cited as authority (rule) Stravakis v. Gardner
D.C. Cir. · 1969 · confidence medium
May v. Gardner, 362 F.2d 616, 617 (6 Cir. 1966).
discussed Cited as authority (rule) Brown v. Gardner
E.D. Mich. · 1968 · confidence medium
In such situations, where the Secretary relies upon the claim that the claimant is capable of doing lighter work than previously, “it is his burden to establish that there are job opportunities reasonably available to the applicant * * * which the applicant could perform with his limited capacities.” Nelson v. Gardner, 386 F.2d 92, 94-95 (6th Cir. 1967); May v. Gardner, 362 F.2d 616, 618 (6th Cir. 1966); Carden v. Gardner, 352 F.2d 51 (6th Cir. 1965).
cited Cited as authority (rule) Troy Whitt v. John W. Gardner, Secretary of Health, Education and Welfare
6th Cir. · 1968 · confidence medium
May v. Gardner, 362 F.2d 616, 618 (CA 6, 1966); Massey v. Celebrezze, 345 F.2d 146, 154 (CA 6, 1965).” Nelson v. Gardner, supra, 386 F.2d at 94-95 .
cited Cited as authority (rule) Robert Nelson v. John W. Gardner, Secretary of Health, Education and Welfare
6th Cir. · 1967 · confidence medium
May v. Gardner, 362 F.2d 616, 618 (CA 6, 1966); Massey v. Celebrezze, 345 F.2d 146,154 (CA 6,1965).
cited Cited as authority (rule) Johns v. Celebrezze
M.D. Tenn. · 1967 · confidence medium
Massey v. Celebrezze, 345 F.2d 146, 154 (6th Cir. 1965); May v. Gardner, 362 F.2d 616, 618 (6th Cir. 1966).
examined Cited as authority (rule) James E. Lane v. John W. Gardner, Successor to Anthony J. Celebrezze, Secretary of Health, Education and Welfare (6×)
6th Cir. · 1967 · confidence medium
May v. Gardner, 362 F.2d 616, 618 (CA 6, 1966); Slone v. Gardner, 355 F.2d 485, 486, 487 (CA 6, 1966).
cited Cited as authority (rule) Amos P. Collins v. John W. Gardner, Secretary of Health, Education and Welfare
6th Cir. · 1967 · confidence medium
See Massey v. Celebrezze, supra at 154 ; Miracle v. Celebrezze, 351 F.2d 361, 381-382 (C.A.6, 1965); May v. Gardner, 362 F.2d 616, 618 (C.A.6, 1966).
cited Cited "see" Miles v. Secretary of Health, Education & Welfare
W.D. Tenn. · 1971 · signal: see · confidence high
See May v. Gardner, 362 F.2d 616 (CA 6, 1966).
discussed Cited "see" Thomas P. Osborne v. Wilbur Cohen, Secretary of Health, Education and Welfare (2×)
6th Cir. · 1969 · signal: see · confidence high
He argues that since he established his inability to work at his usual occupations, the burden was on the Secretary to adduce evidence that the claimant was able to do other work of a substantial gainful nature and that such job opportunities existed in the national economy. 42 U.S.C. § 423 (d) (2) (A), as amended; see May v. Gardner, 362 F.2d 616 (6th Cir. 1966).
cited Cited "see, e.g." Pedro Reyes Robles v. Robert H. Finch, Secretary of Health, Education and Welfare
1st Cir. · 1969 · signal: see also · confidence medium
See also May v. Gardner, 362 F.2d 616, 618 (6th Cir. 1966); Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965); 42 U.S.C. § 423 (d) (2) (1969 Supp.).
Retrieving the full opinion text from the archive…
Sam MAY, Plaintiff-Appellee,
v.
John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellant
16629_1.
Court of Appeals for the Sixth Circuit.
Jun 30, 1966.
362 F.2d 616
C. A. Noble, Jr., Hazard, Ky., H. B. Noble, Hazard, Ky., on brief, for appellant., Allen S. Rosenthal, Department of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., Walter H. Fleischer, Attorneys, Department of Justice, Washington, D. C., George I. Cline, U. S. Atty., Lexington, Ky., on brief, for appellee.
O'Sullivan, Edwards, Mathes.
Cited by 53 opinions  |  Published
MATHES, Senior District Judge:

This case is here upon the appeal of the Secretary of Health, Education and Welfare from the judgment of the District Court reversing the Secretary’s denial of appellee’s application for a period of disability and disability benefits under §§ 205(g), 216(i), as amended, and § 223 of the Social Security Act. [42 U.S.C. §§ 405(g), 416(i) and 423.]

In order to be entitled to disability benefits under the Act as it existed prior to the 1965 amendments [79 Stat. 366 et seq. (1965)], the claimant was required to establish “disability” as of the time of filing of the application for such benefits. [42 U.S.C. § 423(a) (1) (D).] The application before us was filed on June 25, 1962, alleging appellee’s impairments to be “loss of left hand, broken left leg, right arm hurt.”

At the time of filing appellee’s application, § 223(c) (2) of the Act declared that:

“[T]he term ‘disability’ means 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 to be of long-continued and indefinite duration.” [42 U.S.C. § 423(c) (2); see 42 U.S.C. § 416(i) (1) (A).]

The evidence adduced before the hearing examiner disclosed that in 1948, at the age of 38, appellee lost his left forearm below the elbow in a coal mine accident; and that, from the time of this injury until the mine shut down in 1953, appellee worked as a dispatcher in the mine. As a dispatcher, appellee was required to sit at a desk, answer telephone calls, and use a loud speaker to direct traffic, so that the cars entering and leaving the mine would not collide. This dispatcher job was the last “substantial gainful activity” of a continuous nature in which appellee has engaged. However, he has done “odd jobs” intermittently since the mine closed in 1953.

The hearing examiner found that ap-pellee’s last former'occupation was as a dispatcher for a coal mine, and that “he has the capabilities of performing work of the type he last performed in the mines.” Upon this finding, based upon the record made before the hearing examiner, the Secretary denied appellee’s application for disability insurance benefits under the Act. The ensuing action in the District Court under 205(g) of the Act [42 U.S.C. § 405(g)] to reverse the Secretary’s decision resulted in a judgment in appellee’s favor, remanding the case to the Secretary with directions that appellee be granted “a period of disability and disability insurance benefits in accordance with the Social Security Act, as amended.”

It is settled that the burden of proof rested upon appellee to establish his entitlement to disability benefits under the Act. [§§ 216(i) (1) and 223(c) (2), 42 U.S.C. §§ 416(i) (1) and 423(c) (2); Erickson v. Ribicoff, 305 F.2d 638, 640 (6th Cir. 1962); see: Justice v. Gardner, 360 F.2d 998 (6th Cir., May 27, 1966); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965); Cyrus v. Celebrezze, 341 F.2d 192, 195 (4th Cir. 1965); Cele-[*618] brezze v. Bolas, 816 F.2d 498-500 (8th Cir. 1963); Kerner v. Flemming, 283 F.2d 916, 921-922 (2nd Cir. 1960).] Moreover, the Act plainly directs that: “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * [§ 205(g), 42 U.S.C. § 405(g).] And it is equally clear that the same finality extends as well to such inferences and conclusions as the Secretary may reasonably draw from the evidence. [McMullen v. Celebrezze, 335 F.2d 811, 816 (9th Cir. 1964), cert. denied, 382 U.S. 854, 86 S.Ct. 106, 15 L.Ed. 2d 92 (1966).]

Our examination of the record discloses that the decision of the Secretary that appellee has failed to establish, in support of his application, that he is disabled from following his usual occupation as dispatcher in the mines, is supported by substantial evidence on the whole record. [Consolo v. Federal Maritime Commission, 383 U.S. 607, 86 S.Ct. 1018, 16 L.Ed.2d 131 (March 22, 1966); Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964).]

But appellee asserts that there is no available work as a dispatcher in the mines; that he is unable to find any "substantial gainful activity” at or near his home in Kodak, Kentucky. Counsel for appellee pressed upon us with convincing eloquence the plight of appellee and other persons similarly situated who do not wish to leave their homes in the Kentucky mountains and seek work elsewhere; yet are unable to find employment at home.

We have consistently held that, once a claimant establishes that he is unable to work at his usual occupation, the Secretary must, in order to sustain a denial of disability benefits under the Act, adduce evidence to show: (1) that the claimant is able to engage in some other kind of “substantial gainful activity”, and (2) that such job opportunities are reasonably available under normal conditions in the general area in which the claimant lives. [See: Slone v. Gardner, 355 F.2d 485 (6th Cir. 1966); Carden v. Gardner, 352 F.2d 51, 52 (6th Cir. 1965); Massey v. Celebrezze, 345 F.2d 146 (6th Cir. 1965); Thompson v. Celebrezze, 334 F.2d 412 (6th Cir. 1964); Jones v. Cele-brezze, 321 F.2d 192 (6th Cir. 1963); Rice v. Celebrezze, 315 F.2d 7 (6th Cir. 1963); cf. Webb v. Railroad Retirement Board, 358 F.2d 451, 455 (6th Cir. 1966).]

We have also consistently held that, once the Secretary finds from substantial evidence that the claimant is able to engage in a former trade or occupation, such a determination “precludes the necessity of an administrative showing of gainful work which the appellant was capable of doing and the availability of any such work.” [Ward v. Ribicoff, 309 F.2d 157, 158 (6th Cir. 1962); accord, McMullen v. Celebrezze, supra, 335 F.2d at 816.]

The rule cannot be otherwise, unless we are to “order unemployment insurance under the guise of disability insurance.” [Hicks v. Flemming, 302 F.2d 470, 473 (5th Cir. 1962).] The injustice of our so doing is at once apparent, if we suppose for the moment that there were two dispatchers at the mine where appellee worked, and the one other than appellee had not lost part of one arm. Both would be unemployed as dispatchers, but under such an extension of previous holdings as we are here asked to make, only appel-lee would be entitled to “disability” benefits under the Social Security Act.

The judgment of the District Court is reversed, with directions to enter judgment upholding the findings and conclusions of the Secretary.