Chesney v. Flemming, Civ. A. No. 3916.

• Decision Date: 27 January 1960
• Docket Number: Civ. A. No. 3916.
• Citation: 180 F. Supp. 437
• Parties: Clarence J. CHESNEY v. Arthur S. FLEMMING, Secretary of Health, Education and Welfare, Social Security Administration.
• Court: U.S. District Court — Eastern District of Tennessee

180 F. Supp. 437

Clarence J. CHESNEY v. Arthur S. FLEMMING, Secretary of Health, Education and Welfare, Social Security Administration.

Civ. A. No. 3916.

United States District Court E. D. Tennessee, Northern Division.

January 27, 1960.

T. F. Chandler, Knoxville, Tenn., for plaintiff.

John C. Crawford, Jr., U. S. Atty., Knoxville, Tenn., for defendant.

TAYLOR, District Judge.

This action was instituted by Clarence J. Chesney against Arthur S. Flemming, Secretary, U. S. Department of Health, Education and Welfare, under Title 42, § 405(g), U.S.Code, commonly referred to as Part II of the Social Security Act, to review a final decision of the Secretary which denied insurance benefits to the plaintiff under 42 U.S.C. § 423, of the Act.

Plaintiff filed an application for insurance benefits with the Bureau of Old Age and Survivors Insurance of the Social Security Administration on October 29, 1956. The application was denied. A request was made for a hearing before the Referee. The request was granted and a hearing was held by Referee Jennings B. King, Knoxville, on December 5, 1958, at which plaintiff and his attorney, William E. Badgett, Esquire, were present. The Referee denied plaintiff's application for benefits. An appeal was taken by plaintiff to the Office of Appeals Council, and the Council refused to review the Referee's findings and conclusions.

Plaintiff filed his action in this court on August 3, 1959, to have reviewed and reversed the decision of the Referee, and for a judgment by this Court adjudging him entitled to the benefits provided for by the Social Security Act for disabled persons, or, in the alternative, to remand the case to the Administrator for a new hearing.

The Government has answered the complaint, and in its answer asks that the decision of the Referee be affirmed.

Plaintiff has filed a motion for a summary judgment under Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A., upon the ground that the record shows that he is entitled to a judgment as a matter of law.

The Government has also filed a motion for summary judgment under the same rule, on the ground that the pleadings and the transcript of the record on file show that it is entitled to a ruling from this Court affirming the decision of the Referee as a matter of law.

The Referee reviewed plaintiff's work record starting in 1945 as an employee of the Southern Railway Company and which lasted until December, 1955. Plaintiff's medical record shows that he sustained a back injury in 1947. His back was again injured in December, 1955 while working for the railroad and he was placed in St. Mary's Memorial Hospital in Knoxville where he was treated during the month of January, 1956 and a brief period in February, 1956. He was having abdominal pain while in the hospital. The examination made no mention of a back injury.

Doctor Thomas F. Stevens examined him on March 14, 19th, and May 5, 1956. His report of these examinations is dated November 9, 1956 and is to be found on page 58 of the transcript. His report shows that on his first examination plaintiff presented a history of sustaining an injury to his back in 1947 when he was working for the railroad; he was off from work for one month and 23 days at that time, and he stated that his back had hurt ever since; that in January, 1956 he again sustained an injury to his back and he has not worked since.

The medical examination showed a flattening of the lumbar spine. On hyperextension the lumbar muscles could be relaxed but upon flexion they had a tendency to tighten and there was indefinite spasm. The right and left lateral bending was slightly limited; straight leg raising was very mildly positive at 110 degrees, and there were no sensory changes. X-rays revealed "a very marked osteoarthritis, lumbosacral joint, with marked spurring between the 4th and 5th lumbar interspaces anteriorally, the spurs almost fused from the X-ray picture. This, I feel, is one of the largest ones I have seen. Osteoarthritis of the lumbar spine, particularly lumbosacral joint, and large spurring of the entire lumbar spine particularly between the 4th and 5th lumbar interspaces".

On May 5, 1956, Doctor Stevens advised plaintiff to wear a brace, and fitted him with a brace. At that time he was advised to return to his office within a month, but plaintiff never returned.

On July 28, 1958, Doctor Simmons, the personal physician of plaintiff, certified that he was suffering from osteoarthritis of the lumbar spine (severe), and that he was totally disabled. Doctor Simmons had given a statement on January 8, 1958 stating that plaintiff was not able to do heavy lifting or bending due to the condition of his spine. In this statement, the doctor used this language: "Mr. Chesney has no education and cannot do office work or find light work, which he could do to support himself and family."

It is to be noted from the foregoing statement that Dr. Simmons was of the opinion that Chesney could do light work in 1958.

In order for plaintiff to have come within the benefits of 42 U.S.C.A. § 423 (c), based on his application of October 29, 1956, it was necessary for him to have shown to the Referee that he became disabled June 30, 1956 and continued disabled from engaging in a substantial gainful activity up to the time he filed his application for benefits. The Referee held that plaintiff failed to show that he was suffering from an impairment or combination of impairments of sufficient consequence to render him unable to engage in any substantial gainful activity.

If there is substantial evidence to support the findings and conclusions of the Referee, this Court is without...