Dunn v. Folsom, 755.

• Decision Date: 10 October 1958
• Docket Number: No. 755.,755.
• Citation: 166 F. Supp. 44
• Parties: Charlie P. DUNN, Plaintiff, v. Marion B. FOLSOM, Secretary, Department of Health, Education and Welfare, Social Security Administration, United States of America, Defendant.
• Court: U.S. District Court — Western District of Arkansas

166 F. Supp. 44

Charlie P. DUNN, Plaintiff, v. Marion B. FOLSOM, Secretary, Department of Health, Education and Welfare, Social Security Administration, United States of America, Defendant.

No. 755.

United States District Court W. D. Arkansas, Hot Springs Division.

October 10, 1958.

Phillips & Wright, Hot Springs, Ark., for plaintiff.

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

JOHN E. MILLER, District Judge.

Plaintiff brought this action under Title 42 U.S.C.A. Sec. 405(g), to review an adverse final decision of the Secretary of Health, Education and Welfare, under the Social Security Act. By proper procedures the plaintiff sought an administrative determination that he was entitled to a "period of disability" and disability benefits under the Social Security Act, Title 42 U.S.C.A. Secs. 416 and 423. The Referee denied the relief sought. The plaintiff exhausted his administrative remedies, and the Referee's decision became the final decision of the Secretary.

This action to review that decision was filed on July 1, 1958, and on August 25, 1958, defendant filed his answer together with a certified copy of the transcript of the administrative record, including the evidence presented to the Referee and the Referee's written decision.

Jurisdiction of this court is conferred by Title 42, U.S.C.A. Sec. 405(g), which also provides that any administrative findings of fact are conclusive if supported by substantial evidence. The factual inferences and conclusions of the Referee are likewise binding if so supported, but the Referee's conclusions or interpretations of applicable law, while perhaps persuasive, are not in any way binding on review by this court. For a more complete exposition of these rules see Bostick v. Folsom, D.C.W.D.Ark.1957, 157 F.Supp. 108; Fuller v. Folsom, D.C. W.D.Ark.1957, 155 F.Supp. 348.

The plaintiff sought to establish a "period of disability" under Title 42 U.S.C.A. Sec. 416(i), in order to "freeze" his insured status under the Social Security Act, and also sought to obtain disability benefits under Title 42 U.S. C.A. Sec. 423(c) (2). Both sections define "disability" in identical terms, except that in regard to conditions not relevant here Sec. 416 is somewhat more liberal. "Disability" is defined as meaning:

"* * * 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."

If the plaintiff was "disabled" as defined by the act, he was otherwise qualified for disability benefits and for the establishment of a "period of disability", but the burden of proving disability was upon the plaintiff. Bostick v. Folsom, supra; Fuller v. Folsom, supra.

The Referee, who heard the matter on January 7, 1958, and who also received into evidence subsequent medical reports, concluded that no disability existed, and in any event that any disability was not of indefinite duration as required by the act. The Referee, in reviewing the evidence, stated:

"The claimant alleged in his application to establish a period of disability that he had become unable to engage in substantial work in December 1952, at age 54. His former employment was as a boiler fireman, he had a fourth grade elementary education. He further alleged that he had stopped work because of an ankle injury on December 12, 1952, was in a cast for about two weeks and then on advice of his doctor went back to work. The injured area became infected and pus formed in his ankle and afterwards the knee, from which condition he cannot stand or sit in any position very long. His only listed current activity was walking a little around the house. (TR.9)

* * * * * *

"The claimant testified before the referee that his employment from December 1952 to October 16, 1953, was intermittent and that at the time of his injury in December 1952, was employed as a boiler fireman at which work he had been engaged for some nine years. The claimant further stated that this work had been consistent to the date of his injury in 1952. In specific reference to the injury the claimant stated he had broken his ankle on December 12, 1952, and that the injured member was in a cast for two weeks and four days and that when he tried to resume work he had re-broken his ankle which incident was about eight or nine weeks after the cast was removed. He described an operation in 1955 wherein an incision of some fourteen inches had been made to the front of his knee and an additional incision at the back of the knee which operation incurred some five weeks hospitalization. He further advised that Dr. R. V. Bennett had recommended an additional operation which would involve the use of a brace and that he would be unable to work; could just get around the house; and that the limb would be stiff. He also had been advised that the operation was for the purpose of stopping the pain which he had continuously at this time. He described present difficulties with his knee, ankle, and hip involving swelling, particularly in the ankle occasioned by walking, and that his present condition prevented him from doing anything other than just sitting around the house or reclining on his bed. He further stated that he can walk only some three to four city blocks but had been advised by his doctor to exercise, particularly in walking, to keep his joints from becoming stiff. The claimant stated that he took capsules for pain and that he has difficulty in sleeping and `just worries himself to sleep at night.'

"The medical reports in the file at the time of the hearing in this case were by Dr. Thomas M. Durham, Jr. These reports, two in number, reflect a history of the injury referred to by the claimant and intermittent treatment by several physicians since that time and chronic synovitis and later post traumatic arthritis of the right subastragalar joint. Dr. Durham's findings consisted of a one-half inch enlargement of the right knee with definite intra-articular reaction and a large Baker's cyst posteriorly; moderate quadriceps atrophy, but good range of knee motion with minimal limitation due to swelling only. The doctor further stated that the right ankle is improving and shows no enlargement as compared with the left, but there is still approximately fifty percent restriction in subastragalar motion. There was x-ray evidence of post traumatic arthritis of the subastragalar joint with osteoarthritis changes, mild in degree in the right knee. A biopsy report of the right ankle revealed a nonspecific synovitis. The doctor, by comment, stated his conclusion that the claimant has been disabled under the present episode since February 1955, because of post traumatic arthritis of the right subastragalar joint and osteoarthritis of the right knee. The last report of this doctor dated March 12, 1957, reported additional findings of post traumatic arthritis of the right subastragalar joint with a chronic tenosynovitis of the posterior tibial tendon on the right confirmed by surgery. He also has a recurrent villonodular synovitis of the right knee which has recurred after synovectomy of the knee." (TR.9-10)

The Referee did not make any findings of fact as such, and his written decision is cast in the form of a review of the testimony and exhibits. While none of the testimony or exhibits are contradicted on any matter of fact and, therefore, must be accepted not only by the Referee but also by this court, the failure to make findings of fact rather than mere summaries of testimony would make a decision by a reviewing court impossible where any facts or inferences are in dispute.

The Referee concluded:

"In the letter accompanying the above referenced report Dr. Bennett stated that he had advised a primary compression arthrodesis of the knee. The stated object of this operation was to give the claimant a `painless stable leg on which to work'. The present disability of the extremity was estimated by the doctor to be about eighty percent. It was his feeling that there would be approximately forty-five percent disability after the operation.

"From a careful review of the evidence in this case it is apparent that claimant's condition has not been such as to affect more than one extremity and such condition in the absence of an involvement of other physical impairments is not sufficient to constitute a disability of such severity as to qualify the claimant under his applications. While the claimant suffered

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