Bagwell v. Celebrezze, Civ. A. No. 4183.
Decision Date | 22 August 1964 |
Docket Number | Civ. A. No. 4183. |
Citation | 232 F. Supp. 989 |
Parties | Julian H. BAGWELL, Sr., Plaintiff, v. Anthony CELEBREZZE, Secretary of Health, Education and Welfare, Defendant. |
Court | U.S. District Court — District of South Carolina |
John C. Williams, U. S. Atty., for Western Dist. of South Carolina, for defendant.
This action was brought by the claimant, Julian H. Bagwell, Sr., against the Secretary of Health, Education, and Welfare, pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405 (g), to obtain judicial review of a final decision of the Secretary denying his application for disability insurance benefits under sections 216(i) and 223 of the Act, 42 U.S.C. §§ 416(i) and 423.
The Court is not empowered to try the case de novo, but by the same token, it must not abdicate its traditional function to determine whether the "record as a whole" supports the conclusion of the Secretary. If the findings are supported by substantial evidence, they shall be considered conclusive. The substantiality of the evidence to support the Secretary's finding is the basic issue before the Court. Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964).
The plaintiff last met the special earnings requirement for disability purposes on September 30, 1957. Thus, in order for him to have qualified for benefits, the evidence must have established that he was prevented continuously from doing substantial gainful work since on or before September 30, 1957. The hearing examiner concluded that the plaintiff had failed to meet this burden of proof.
The record reveals plaintiff was born in 1921. He stated initially that he had a seventh grade education, but later testified he had only completed the third grade and could only read and write ". timber, 42 feet long. He thought he had suffered a "dropped stitch", but this turned out to be a "slipped disc". Plaintiff has not worked since this employment in the lumber yard. He served in the Navy during World War II from 1944 to 1945, and after being discharged he went to a G.I. cabinet-making school for twelve or fourteen months. He testified; however, that he had never made a cabinet.
At the hearing on April 24, 1962, plaintiff testified that he had his first black out spell or seizure in 1944 when he was on Guadalcanal, but that as the years progressed they had become of increasing longer duration and more frequent. In the last part of 1953 or 1954 he indicated that he had three or four spells a day. His most recent spell had occurred one week prior to the hearing. During one of these seizures in 1952, plaintiff testified that he had fallen and injured his right arm, breaking it in three places. The hearing examiner questioned him about this arm:
Claimant's counsel examined his client and the following colloquy is disclosed in the record:
The medical evidence is voluminous, and sometimes conflicting, but there can be no doubt that plaintiff had severe disability of his right arm in September, 1957. Witness the following statement of Dr. N. H. Prentiss, of the Veterans Administration Hospital, dated November 29, 1957:
It is important to note that the surgery referred to above was performed on August 28, 1957, over a month before plaintiff's "inclusion" period expired.
Plaintiff testified at great length about his epileptic seizures and "black outs". He stated that it was not possible to predict the frequency or duration, and he had little or no forewarning of an impending episode.
All of the doctors mention, in one way or another, these "black outs"; all saying that the cause is idiopathic (unknown).
Dr. B. B. Bagby, Jr., Chief, Physical Rehabilitation Service, Veterans Administration Hospital, Oteen, N. C., stated that plaintiff has been unable to work since 1954.
Dr. B. C. McLawhorn of Greenville, S. C., stated that plaintiff had been "unable to work because of weakness of right arm and epilepsy". He indicated further that claimant is "seen by me frequently —sometimes daily for black-out spells and nausea".
Dr. E. G. McMillan of Greenville, S. C....
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