Hall v. Celebrezze, Civ. A. No. 1091.
| Decision Date | 04 December 1962 |
| Docket Number | Civ. A. No. 1091. |
| Citation | 210 F. Supp. 721 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | Albert HALL, Plaintiff, v. Anthony J. CELEBREZZE, Secretary of Health, Education, and Welfare, Defendant. |
Robert E. Lusk, Williamson, W. Va., Clay S. Crouse, Beckley, W. Va., for plaintiff.
Harry G. Camper, Jr., U. S. Atty., Huntington, W. Va., for defendant.
This is an action under 42 U. S.C. § 405(g) of the Social Security Act to review a final decision of the Secretary of Health, Education and Welfare. That decision disallowed plaintiff's claim for a period of disability under 42 U.S.C. § 416(i) and for disability insurance benefits under 42 U.S.C. § 423, and the jurisdiction of this court is limited to a determination of whether that decision was based on substantial evidence. 42 U.S.C. § 405(g). The court is precluded from having a hearing de novo. See Carpenter v. Flemming, D.C.N.D. W.Va., 178 F.Supp. 791.
The Act, 42 U.S.C. § 416(i) provides for eliminating from a person's earning record the period during which he was under a "disability" in computing his average monthly wage upon which the amount of his benefit is based. A discussion of the elements of this statutory disability is contained in Pruitt v. Flemming, S.D.W.Va., 182 F.Supp. 159. There is no dispute here concerning plaintiff's "insured status" under the Act, and it suffices to say that plaintiff met the requirements of this "insured status" through September 30, 1957.
On July 12, 1960, plaintiff filed an application for a period of disability and/or disability insurance benefits, alleging that he first became unable to work in November of 1953 because of arthritis and chest trouble (coughing). (Plaintiff had previously filed an application to establish a period of disability on May 31, 1956; however, after his administrative remedies had been exhausted, plaintiff did not seek judicial review of the Secretary's decision.) Following unfavorable administrative determinations, plaintiff requested and received a hearing by a hearing examiner. The hearing examiner took evidence and, on July 20, 1961, rendered a decision denying plaintiff's claim. On September 25, 1961, the Appeals Council declined plaintiff's request for review of the hearing examiner's decision. That decision thus became the final decision of the Secretary.
The issue in this case is whether there is substantial evidence in the record to support the Secretary's decision that plaintiff, having the burden of proof, did not show himself to be unable to engage in any substantial gainful activity as a direct result of a medically determinable physical impairment which was expected either to result in death or to be of long-continued and indefinite duration.
In his application of July 12, 1960, the plaintiff indicated that he was born on July 22, 1910, and that he had completed the fourth grade. In an earlier application, May 1956, he noted that he had completed the sixth grade.
At the hearing before the hearing examiner plaintiff testified that he was engaged in farming until 1941 or 1942; that he thereafter worked in the mines principally as a member of a track recovery crew (removing track); that he injured his hip and back in a mine accident in March, 1949; that in approximately September, 1950, he returned to the mines where he performed "light work" consisting of removing track bolts from rails which were to be carried off; that he considered this to be light work because he did not have to load the rails onto a car; that he continued doing this work until November, 1953, when he was "cut off" because of a general reduction in work forces at the mine; that he has never worked since this time; that he was recalled by his former employer in February, 1956, but could not pass the physical examination required for a full duty employee (that is, not doing exclusively the light work that he had performed between 1950 and 1953); and that at the time of his physical examination in 1956 he felt that he was still capable of performing his last job, the "light work" explained above. Plaintiff's wage record compiled for Social Security purposes reveals that he was credited with the maximum taxable earnings of $3600 in 1951 and 1953 and for $3412 in 1952, whereas in no other year is he shown to have earned as much as $3000. Plaintiff also testified that he had lost more time from work because of illness prior to 1949, the date of the mine accident, than thereafter.
A medical report from the Holden Hospital, dated July 25, 1960, reveals that prior to 1949 plaintiff had been treated for various minor complaints, such as colds and boils, without having been admitted to the hospital. The hospitalization following the 1949 mine accident was noted. The diagnosis of the injuries was fracture of the ischium and acetabulum, left (fracture of the lower-most segment of the left hip bone and of the cup-shaped segment above it which receives the head of the thigh bone).
In a subsequent report from the Holden Hospital, dated September 26, 1960, it was stated that plaintiff was given a work slip on January 17, 1950, and that he was treated as an outpatient on June 25, 1951, for an upper respiratory infection and was given a work slip on July 5, 1951.
In three reports prepared in 1949 for workmen's compensation purposes Dr. Chillag noted the accident and the injuries described above, that the fracture was healing without complication, that the plaintiff was disabled because of pain in the hip and leg, that traumatic arthritis was present, and that this disability could continue for approximately three months. The Compensation Commission granted the plaintiff a twenty per cent permanent partial disability carrying payments for eighty weeks.
In July, 1954, plaintiff was examined for public assistance purposes by Dr. Zando who reported that plaintiff's general appearance and gait were poor but that his senses, heart, and blood pressure were normal. He also found proliferative arthritis of the fifth lumbar and first sacral vertebrae and degenerative arthritic changes in the left hip joint. He recommended no...
To continue reading
Request your trial