Fuller v. Folsom

• Decision Date: 26 October 1957
• Docket Number: No. 417.,417.
• Citation: 155 F. Supp. 348
• Parties: Sherman R. FULLER, Plaintiff, v. Marion B. FOLSOM, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Western District of Arkansas

155 F. Supp. 348

Sherman R. FULLER, Plaintiff, v. Marion B. FOLSOM, Secretary of Health, Education and Welfare, Defendant.

No. 417.

United States District Court W. D. Arkansas, Harrison Division.

October 26, 1957.

Robert W. Cummins, Harrison, Ark., for plaintiff.

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

JOHN E. MILLER, District Judge.

This is an action brought under 42 U.S.C.A. § 405(g), wherein the plaintiff seeks a review of an adverse decision of a Referee of the Office of Appeals Council, Social Security Administration, Department of Health, Education and Welfare, the decision of the Referee having been affirmed by the Secretary of Health, Education and Welfare.

In accordance with the statute the Secretary has filed a certified copy of the transcript of the record, including the evidence upon which the findings and decision complained of are based.

The jurisdictional statute, among other things, provides:

"* * * The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * *."

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, 99 L.Ed. 456; Shields v. Folsom, D.C.Pa., 153 F.Supp. 733, 734.

With these general rules of law in mind, the Court must consider the record in the instant case. On November 23, 1955, plaintiff filed an application under 42 U.S.C.A. § 416(i), seeking to establish a period of disability from May 1, 1946, and continuously thereafter up to and including the date of the application.

While that application was pending, on February 15, 1956, plaintiff filed an application for old-age insurance benefits payable under 42 U.S.C.A. § 402(a). His wife also filed application under 42 U.S.C.A. § 402(b) for "wife's insurance benefits" based on her husband's wage record. Plaintiff and his wife were awarded benefits, but the question of any possible period of disability was left open for determination.

On July 16, 1956, plaintiff was notified that his application for the establishment of a period of disability had been denied, and that his benefit rate would remain unchanged. Plaintiff requested a hearing before a Referee, and such hearing was held at Harrison, Arkansas, on March 19, 1957. Plaintiff was represented by counsel at the hearing.

The Referee issued his decision on April 15, 1957, holding that plaintiff was not entitled to a period of disability under 42 U.S.C.A. § 416(i). The Referee's decision was approved by the Appeals Council on June 11, 1957.

The question before this Court is whether there is substantial evidence in the record to support the Referee's findings.

The statute in question, 42 U.S.C.A. § 416(i), among other things, provides:

"(i) (1) Except for purposes of sections 402(d), 423 and 425 of this title, the term `disability' means (A) 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. * * *

"(2) The term `period of disability' means a continuous period of not less than six full calendar months (beginning and ending as hereinafter provided in this subsection) during which an individual was under a disability (as defined in paragraph (1) of this subsection). No such period shall begin as to any individual unless such individual, while under a disability, files an application for a disability determination with respect to such period; and no such period shall begin as to any individual after such individual attains the age of sixty-five. * * *"

Plaintiff makes no attack upon the findings of fact of the Referee, and since the Court is convinced that the Referee's findings of fact are supported by substantial evidence, the Court is adopting the Referee's findings of fact as those of the Court. The pertinent findings of fact of the Referee are as follows:

"The record discloses that the claimant was born on February 12, 1891. He filed application for old-age insurance benefits on February 15, 1956 under section 202(a) of the Social Security Act, as amended. His wife, Myrtle A. Fuller, who was born November 2, 1890, filed application for wife's insurance benefits under section 202(b) on that same date. On March 15, 1956 the claimant was awarded old-age insurance benefits of $81.10 per month and his wife was awarded wife's insurance benefits of $40.60 per month, both awards effective with the month of February 1956.

"In his disability application which he filed, the claimant stated that his education includes two years of college, that he had been employed as comptroller and treasurer for a publishing company, and that he first became unable to engage in substantial work at the age of 57 because of hypertension with the result that he cannot stand exertion of any kind because of shortness of breath. He further states that he was advised to quit work by his family doctor and that his present activities are limited to work around the house. His employer continued his salary for one year after he became disabled.

"The wage record shows continuous and substantial postings from the first quarter of 1939 through the last quarter of 1947; therefore, earnings requirements for disability purposes were met. He last met these requirements in the quarter ending September 30, 1949.

"A medical report submitted shows the claimant was treated in 1949 typographical error — should be 1945 for a malignant hypertension with blood pressure of 240/110. All other tests were negative but the hypertension persisted in spite of therapy at that time. The doctor adds that he advised the claimant to seek less strenuous employment. Reports from Dr. Owens show that he had attended the claimant for colds, etc., from 1946 to 1955. On November 18, 1955, he found the blood pressure to be 210/100. On December 5, 1955, a recheck showed the blood pressure to be 190/100. There was light pain in the parachordal pericardial area and he noted that he was very short of breath if he exerted himself to any extent. Examination has also shown slight cardiac enlargement and the doctor adds that the heart condition was not mentioned on the previous report and the enlargement was not excessive but it could be found on close examination. * * *

"Before the referee the claimant testified substantially as follows. He first began work with Montgomery Ward and Company, then worked for Sears Roebuck in Chicago beginning from July 7, 1913. In 1920 Sears opened a store in Philadelphia and he was transferred there as credit manager. About February 1935 he transferred back to Chicago as manager of Sears mortgage loan department. About August 15, 1939 he was made comptroller of a subsidiary (Encyclopedia Britannica) until 1943 when Sears gave this business to the University of Chicago. Claimant was retained by the University as comptroller and made treasurer of the company. He continued in such capacity until his retirement on May 1, 1946.

"The claimant further testified that he began suffering from disability in the spring of 1944 when he began getting rather severe headaches and finally had a checkup by the company's firm of doctors. His blood pressure was 240/150, dangerously high at that time. He then discussed his condition with the company president who suggested that he take a leave of absence. About July 1, 1944 the claimant began two months leave of absence, at which time he went to Hot Springs, Arkansas to take a series of baths to relieve tension and probably bring his blood pressure down. Thereafter, he began feeling pretty good. He returned to his home in Chicago and stayed at home for a while, and then returned to work feeling somewhat improved. He continued working until the spring of 1945 when he again felt bad and returned to a physician who gave him some blood pressure pills. In the spring of 1946 he began feeling really uncomfortable again and was suffering from bad headaches, but his health was fairly good otherwise. Claimant's family doctor returned from the war and the claimant went to see him about March 1, 1946. This physician recommended that the claimant retire and said he might not live to draw his full retirement from the firm when he attained age 65 unless he

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