Blevins v. Fleming

• Decision Date: 29 January 1960
• Docket Number: Civ. A. No. 1508.
• Citation: 180 F. Supp. 287
• Parties: Bobbie L. BLEVINS, Plaintiff, v. Arthur S. FLEMING (Flemming), Secretary of Health, Education, and Welfare, United States of America, Defendant.
• Court: U.S. District Court — Western District of Arkansas

180 F. Supp. 287

Bobbie L. BLEVINS, Plaintiff, v. Arthur S. FLEMING (Flemming), Secretary of Health, Education, and Welfare, United States of America, Defendant.

Civ. A. No. 1508.

United States District Court W. D. Arkansas, Fort Smith Division.

January 29, 1960.

David O. Partain, Van Buren, for plaintiff.

Chas. W. Atkinson, U. S. Atty., Robert E. Johnson, Asst. U. S. Atty., Fort Smith, Ark., for defendant.

JOHN E. MILLER, Chief Judge.

This is an action brought by the plaintiff under Sec. 205(g) of the Social Security Act, as amended, 42 U.S.C.A. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare. The plaintiff seeks to establish her rights and claims for childhood disability benefits and to establish a period of disability as provided by Sec. 202(d) (1) et seq., of the Social Security Act, as amended, 42 U.S.C.A. § 402(d) (1).

The plaintiff filed her original application with the Bureau of Old-Age and Survivors Insurance, Social Security Administration, on October 22, 1956. Her claim was based on the wage record of her father, Troy D. Blevins, who was awarded old-age insurance benefits on November 22, 1954. On April 27, 1957, the Bureau informed the plaintiff that it had determined that the available evidence did not indicate that her impairment was so severe before she reached age 18 as to have prevented her from engaging in any substantial work. On July 15, 1957, plaintiff's father requested reconsideration, and on January 27, 1958, the Bureau informed the plaintiff that the initial determination was affirmed. Thereafter, on March 21, 1958, plaintiff's father filed a request for a hearing, and after due notice a hearing was held at Fort Smith, Arkansas, on February 20, 1959.

The plaintiff was not represented by counsel at the hearing, but the Referee aided her in developing her case and was very courteous to the plaintiff and her family. The hearing consisted of oral testimony by the plaintiff, her father, Troy D. Blevins, a sister, Mrs. Carl Brownlee, and a cousin, Mrs. Agnes Whitlock. In addition, the Referee had before him medical reports from three doctors.

On March 23, 1959, the Referee filed his decision denying the plaintiff's applications. The plaintiff has exhausted the administrative remedies, and the Referee's decision has become the final decision of the Secretary.

This action to review that decision was filed on October 16, 1959, and on December 16, 1959, defendant filed his answer together with a certified copy of the transcript of the administrative record, including the evidence presented at the hearing before the Referee and the Referee's written decision. The applicable statutory law in this case is contained in 42 U.S.C.A. § 402(d) (1), which provides:

"(d) (1) Every child (as defined in section 416(e) of this title) of an individual entitled to old-age insurance benefits, or of an individual who dies a fully or currently insured individual after 1939, if such child—

"(A) has filed application for child's insurance benefits,

"(B) at the time such application was filed was unmarried and either (i) had not attained the age of eighteen, or (ii) was under a disability as defined in section 423(c) of this title which began before he attained the age of eighteen, and

"(C) was dependent upon such individual at the time such application was filed, or, if such individual had died, was dependent upon such individual at the time of such individual's death,

shall be entitled to a child's insurance benefit for each month, beginning with the first month after August 1950 in which such child becomes so entitled to such insurance benefits and ending with the month preceding the first month in which any of the following occurs: such child dies, marries, is adopted (except for adoption by a stepparent, grandparent, aunt, or uncle subsequent to the death of such fully or currently insured individual), attains the age of eighteen and is not under a disability (as defined in section 423(c) of this title) which began before he attained such age, or ceases to be under a disability (as so defined) on or after the day on which he attains age eighteen."

Disability is defined in Sec. 423(c) (2) of Title 42, U.S.C.A., as:

"The 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. An individual shall not be considered to be under a disability unless he furnishes such proof of the existence thereof as may be required."

It is not seriously controverted that the plaintiff is dependent upon her father, Troy D. Blevins. The only question for determination by the Referee, therefore, was whether the plaintiff was under a disability which began before she attained the age of 18 and continued until she filed her claim. His determination of this question is the basis of this review. The general rules which must be followed by this court in the instant case are well established. In Fuller v. Folsom, D.C.W.D.Ark., 155 F. Supp. 348, 349, the general rules were stated as follows:

"The burden of proof, both before the Referee and in the instant proceeding, is upon the plaintiff. Thurston v. Hobby, D.C.Mo., 133 F.Supp. 205; Norment v. Hobby, D.C.Ala., 124 F.Supp. 489. Not only are the findings of fact made by the Referee, if supported by substantial evidence, conclusive, but a majority of courts also extend the finality of the Referee's findings to inferences and conclusions which he draws from the evidence, if there is a substantial basis for the conclusions. Rosewall v. Folsom, 7 Cir., 239 F.2d 724; United States v. LaLone, 9 Cir., 152 F.2d 43; Social Security Board v. Warren, 8 Cir., 142 F.2d 974; Walker v. Altmeyer, 2 Cir., 137 F.2d 531; McGrew v. Hobby, D.C. Kan., 129 F.Supp. 627; Hemmerle v. Hobby, D.C.N.J., 114 F.Supp. 16; Schmidt v. Ewing, D.C.Pa., 108 F. Supp. 505; Holland v. Altmeyer, D.C.Minn., 60 F.Supp. 954.

"The Referee's conclusions of law, however, are not binding upon the Court, although they are entitled to great weight. See, Miller v. Burger, 9 Cir., 161 F.2d 992; Carroll v. Social Security Board, 7 Cir., 128 F.2d 876; Ayers v. Hobby, D.C.Va., 123 F.Supp. 115; Ray v. Social Security Board, D.C.Ala., 73 F.Supp. 58.

"And in reviewing the decision of the Referee, the Court must not abdicate its conventional judicial function. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456; Shields v. Folsom, D.C.Pa., 153 F.Supp. 733, 734."

The Referee did not make any findings of fact as such, and his written decision is merely a summary of the individual testimony and exhibits. Fortunately, in this case the facts are not in dispute, and therefore must be accepted by the Referee and by the court.

The plaintiff was born February 21, 1928, and resides with her parents at Alma, Arkansas. When she was 9 years of age, she became afflicted with epilepsy of the grand mal type. She usually suffers the seizures at night; however, she has had several in the daytime. The attacks generally last from three to five minutes, and during that period her muscles tighten, her body becomes stiff, breathing is difficult, and it is necessary to put something in her mouth to prevent her biting her tongue and lips. Her kidneys act during every seizure, and following a seizure she sleeps for about 30 minutes before it is possible to awake her. When the plaintiff was about 17 years old and in the 11th grade, she suffered an attack at school and had to be brought home. She never returned to school. Following this, the plaintiff was employed by a cannery on two separate occasions. Apparently she was not able to perform the work because of her impairment, and she was compelled to cease work. While endeavoring to work, she had to be assisted home from the plant on several occasions. Since quitting the job at the cannery, her activity has been primarily confined to assisting her mother with household tasks.

In 1947 plaintiff suffered several attacks and apparently had a nervous breakdown. At this time she was placed on additional medication by her physician. One of the medications was apparently dilantin sodium, although it is generally referred to in the transcript of testimony and in the Referee's opinion only as "strong medicine." There was no testimony or finding by the Referee as to the number of seizures between 1948 and 1957. Apparently, however, the "strong medicine" was reasonably effective in reducing the paroxysmal seizures but not the symptomatic seizures during this period. The plaintiff experienced one attack in 1957, several attacks in 1958, and five attacks in 1959.

The testimony generally indicates that the plaintiff has difficulty remembering ordinary events, and that she requires close supervision in performing even menial tasks.

Representatives of the Arkansas State Rehabilitation Center have contacted the plaintiff and her family on several occasions relative to the plaintiff's admittance to the State Vocational Rehabilitation Center in Little Rock for training. The plaintiff has declined to seek admission to the Center. She testified that Dr. Chamberlain told her she simply could not go. (Tr. 49.) In this connection, the members of the plaintiff's family testified that it would not be safe to send her to the Center because she is not capable of taking care of herself.

Reports from three doctors are attached as exhibits to the record. Dr. C. T. Chamberlain of the Holt-Krock Clinic in Fort Smith, Arkansas, first examined the plaintiff in the spring of 1946, and last saw her in March 1958. Dr. Chamberlain reported that the plaintiff has suffered from grand mal epilepsy since age 9; is forced to maintain daily anti-convulsant therapy in order to avoid seizures; her condition is static; and that he considers the plaintiff totally disabled. H...