Aaron v. Fleming

• Decision Date: 18 December 1958
• Docket Number: Civ. A. No. 453-E.
• Citation: 168 F. Supp. 291
• Parties: James P. AARON, Plaintiff, v. Arthur S. FLEMING, Secretary of Health, Education and Welfare for the United States of America, Defendant.
• Court: U.S. District Court — Middle District of Alabama

168 F. Supp. 291

James P. AARON, Plaintiff, v. Arthur S. FLEMING, Secretary of Health, Education and Welfare for the United States of America, Defendant.

Civ. A. No. 453-E.

United States District Court M. D. Alabama, E. D.

December 18, 1958.

Godbold, Hobbs & Copeland, Montgomery, Ala., for plaintiff.

Hartwell Davis, U. S. Atty., and Paul L. Millirons, Asst. U. S. Atty., Montgomery, Ala., for defendant.

RIVES, Circuit Judge.

This action is brought pursuant to 42 U.S.C.A. § 405(g) to review a decision by the defendant which held that plaintiff is not entitled to the benefits of the disability freeze provision of the Social Security Act. That provision, 42 U.S.C.A. § 416(i)(1), defines "disability" as an "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," and Section 416(i) (2) states that a "period of disability" must be "a continuous period of not less than six full calendar months * * * during which an individual was under a disability * * *." This period of low or zero income will be eliminated from the wage earner's records, increasing his "average monthly wage" and consequently the amount of future old age benefits.

The defendant's referee found that the plaintiff had not been so disabled since September 1, 1953, as claimed, and this decision was affirmed by defendant's Office of Appeals Council. This Court must determine whether or not there is substantial evidence to support the defendant's findings that the plaintiff has failed to establish that his condition precludes him from engaging in any substantial gainful activity.

The plaintiff is sixty-three years of age and has been gainfully employed most of his adult life as a traveling salesman. Allegedly, since September 1, 1953, until the date of his claim, January 5, 1956, "he has been unable to work in any field and has been forced to refuse several attractive job offers because of his health." In the Application to Establish a Period of Disability, the plaintiff answered certain questions.

"8. Describe your daily activities (this includes such activities as walking, driving, hobbies, working for someone else or yourself, working around the house, etc.).

"I walk, a little and drive my car some but I do very little. I have found out by experience that if I make any effort my heart gets to running very fast."

"10. How does your injury or illness prevent you from working?

"I am just not able. I get out of wind. If I drive my car my prostrate (sic) trouble begins to cause me pain."

"10. (a) What is the nature of your injury or illness?

"Heart Trouble—Spastic Colon, Prostate—Arthritis—Foot Trouble —Back Trouble.

"(b) How does it prevent you from working at the present time?

"I am not able to do any type work. I get very nervious (sic) in crowds, I have weak, fainting spells and cannot get any type of work.

"(c) How did it first cause you to stop working?

"Doctors told me that if I wanted to live longer I would have to stop work, that instead of working I belonged in a hospital."

The evidence presented to the referee consisted of the following: diagnosis by several physicians, accurately summarized in the plaintiff's brief;¹ testimony from the claimant, from Mr. W. Newell Reaves who had been his employer, and from Mr. Lester Stewart, a close personal friend, all favorable toward a finding of total disability; numerous certificates and other documentary evidence, all of which supported the allegation of disability; and proof that the plaintiff was entitled to disability payments from Prudential Insurance Company from October 1, 1954.

The referee takes the alleged illnesses —"heart trouble—spastic colon—prostate —arthritis—foot trouble—back trouble" —and attempts to show that they do not render the plaintiff disabled, concluding:

"* * * An examination by the Veterans Administration in 1954 failed to disclose any heart abnormality * * *. The Referee is unable to conclude, therefore, on the basis of the evidence of record, that the claimant was ever unable to work because of a severe heart ailment. * * * the history of a spastic colon, which apparently required no serious medical procedures and which was amenable to control by dietary discretion, cannot * * * here serve as the basis for a finding of disability. * * *

* * * * * *

"* * * On the basis of the evidence of record, the Referee cannot avoid the conclusion that the irritability and nervousness of the claimant, during the last year of his employment and thereafter, was a temporary condition stemming from his refusal to accept sound medical advice for an operation of the prostate, and the Referee must so find. * * *

* * * * * *

"As to the claimant's `arthritis,' `foot trouble,' and `back trouble,' it is only too apparent from the medical record, the claimant's activities, and the Referee's personal observations * * * that he is apparently capable of the light work and sedentary activity which would be suitable to the average person of his age, education, and vocational background."

The referee summarized:

"For the reasons stated above, the Referee is constrained to find that the claimant was not, during the period from September 1, 1953, through January 5, 1956, or any portion thereof, unable to engage in substantial gainful activity by reason of a medically determinable physical or mental impairment which could be expected to result in death or to be of long-continued or indefinite duration."

After carefully reading and studying the record, I must disagree. I think there is no substantial evidence to support such a holding. There is no substantial evidence, medical or otherwise, which does not tend to corroborate plaintiff's claim. It appears that the referee based his decision largely upon a disability determination by the Department of Health, Education, and Welfare made pursuant to plaintiff's claim, wherein the report states:

"Medical information provided by the VAH revealing EKG within normal limits, forward and backward motion of spine 75% of normal and no muscular spasticity, is evidence to judge the applicant is able to engage in some type of gainful occupation."

This report was made on May 23, 1956, and it had as its basis a medical examination from the Veterans' Administration Hospital. The doctor making the disability determination did not have any part in the VAH report which adjudged the claimant physically entitled to non-service pension benefits. This cannot constitute the substantial evidence required to support the referee's findings in view of the fact that all the other evidence is to the contrary.²

The referee, no doubt, in defining "disability," placed upon the phrase "any substantial gainful activity" an objective test, although he uses language to the contrary.³ But surely the test must be subjective — surely our ever-enlarging bureaucracy has not yet reached the stage of "expertise" that it can depersonalize a person's illnesses. Subjectiveness must be the test, and, as stated in Jacobson v. Folsom, D.C.S.D. N.Y.1957, 158 F.Supp. 281, 286:

"Implicit in this criterion (of ability to engage in substantial gainful activity) is that the gainful work be commensurate with plaintiff's educational attainments, his training and experience. * * * For a man engaged in active and high pressure selling all of his adult life a transition at this late stage in life to a `white collar' job under close supervision might be unrealistic and irreconcilable with his training and experience. Furthermore, his ability to obtain such employment, in view of his selling background, might be doubtful."

It is further...