Hamm v. Richardson

• Decision Date: 16 March 1971
• Docket Number: No. EC 7036-K.,EC 7036-K.
• Citation: 324 F. Supp. 328
• Parties: Edward Nelson HAMM, Plaintiff, v. Elliott RICHARDSON, Secretary of Health, Education and Welfare of the United States of America, Defendant.
• Court: U.S. District Court — Northern District of Mississippi

324 F. Supp. 328

Edward Nelson HAMM, Plaintiff, v. Elliott RICHARDSON, Secretary of Health, Education and Welfare of the United States of America, Defendant.

No. EC 7036-K.

United States District Court, N. D. Mississippi, E. D.

March 16, 1971.

John C. Ross, Jr., Corinth, Miss., for plaintiff.

Falton O. Mason, Jr., Asst. U. S. Atty., Oxford, Miss., for defendant.

MEMORANDUM OPINION

KEADY, Chief Judge.

Plaintiff brought this suit under 42 U.S.C. § 405(g) seeking judicial review of an administrative decision of the Secretary of Health, Education and Welfare (HEW) denying his claims for a period of disability under 42 U.S.C. § 416(i) and for disability insurance benefits under 42 U.S.C. § 423.¹ Plaintiff has fully exhausted his administrative remedies. Following disallowance of his original application by the Bureau of Disability Insurance, a hearing was held before a Hearing Examiner in Jackson, Mississippi, at which plaintiff was present and testified, but was not represented by counsel. After the Hearing Examiner had allowed his claim without entry of reasons for his decision, the Appeals Council of the Social Security Administration, on its own motion, reopened the case, reviewed the file and disallowed plaintiff's claim. The determination by the Appeals Council was a "final decision" reviewable by this court under § 405(g).

Both parties have moved for summary judgment based on the record made below, and following the submission of memorandum briefs the case is now before the court for decision. The principal issue is whether there was substantial evidence in the record to support the Secretary's finding that plaintiff was not disabled under §§ 416 and 423. If there was substantial evidence for the HEW finding, the law requires us to affirm.² Substantial evidence was defined by Mr. Justice Blackmun, then a Circuit Judge, in Easttam v. Secretary of HEW, 364 F.2d 509 (8 Cir. 1966), as follows:

"Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." (at p. 511). See Cohen v. Perales, 412 F.2d 44 (5 Cir. 1969).

The initial burden of proof in this case rests upon claimant, who must establish that he has a medically verifiable impairment which disables him from performing the type of work he has performed in the past. If he makes such a showing, the burden of proof then shifts to the Secretary to show that there are other categories of substantial gainful jobs which a person of his age and experience could perform.³

At the outset, we note that the Hearing Examiner found, and defendant admits, that plaintiff was eligible for benefits insofar as the special earnings requirement of 42 U.S.C. § 416(i) (3) is concerned, since he had employment coverage for at least 20 of the last 40 quarters immediately preceding the alleged disability. Although the record contains medical evidence and statements by plaintiff as to several ailments and injuries which have afflicted him in the past, the thrust of his disability claim appears to rest upon some form of arthritis, as he acknowledged.

Plaintiff is a 48 year-old white male who completed eight years of school, dropping out at age sixteen to work in the asphalt mines of Alabama for roughly two years. Drafted into the military service shortly thereafter, plaintiff served as a cook with the U. S. Air Force in Berlin, Germany, where he received no service-connected injuries other than a broken leg, which has no relation to the disabilities claimed here. Upon leaving military service, plaintiff farmed for a couple of years, operated a boat during the laying of a pipeline across the Tennessee River, served as a time checker of TVA equipment, and worked as a rod man on a surveying crew. Thereafter, he attended Bricklayer School at East Central Junior College in Decatur, Mississippi, completing the two-year course in one year, and worked from 1958 until the onset of his alleged disability as a self-employed, non-union bricklayer, also laying some block, stone and tile. According to the testimony of plaintiff and his wife, who were the only witnesses personally appearing before the Hearing Examiner, plaintiff worked as a bricklayer until about December 17, 1968, when pain in his hands, elbows and shoulders prevented him from gripping and lifting bricks and continuing his bricklaying work.

Except for lay testimony, all of the evidence concerning plaintiff's alleged disability was in the form of unsworn letters and medical records. There were four separate documents from plaintiff's personal physician, Dr. Harry Cosby, Jr., general practitioner of Iuka, Mississippi, asserting that plaintiff has been totally and permanently disabled at least since December 1968. The first document, a brief report prepared for submission to the Veterans Administration and dated May 22, 1968, stated that plaintiff had chronic rheumatoid arthritis with early deformity of arms, hands and elbows, concluding that he was then totally disabled. Dr. Cosby also submitted an HEW medical report form dated April 15, 1969, showing that he had treated plaintiff at irregular intervals from December 1968 to late February 1969 for pain, swelling, enlargement and deformity of the joints in plaintiff's back, hip, knees, ankles, arms and hands due to arthritis, for which he was given darvon, valium, indocin and other like drugs, with disappointing results. Dr. Cosby's report also showed that plaintiff's R.A. was positive and that the V. A. x-rays had shown early joint changes and osteoporosis. The diagnosis was chronic rheumatoid arthritis with early degenerative changes.

Dr. Cosby's third report, a one-sentence letter addressed "TO WHOM IT MAY CONCERN" and dated June 19, 1969, states the same basic conclusions, as does yet another letter, dated October 13, 1969, which added that plaintiff had not responded to the usual heat and cortisone treatments for arthritis, that he still had marked pain even without exercise, and that he was then unable to hold bricks in his hands. A further statement from Dr. Cosby to the same effect, dated January 24, 1970, was later considered by the Appeals Council, but was not before the Hearing Examiner.

Plaintiff also introduced into evidence a one-sentence letter dated October 13, 1969, from Dr. Bobby F. King, also a general practitioner of Iuka, Mississippi, certifying that he treated plaintiff for rheumatoid arthritis in May and June of 1966 with indocin, depomedrol and decogesic. Dr. King offered no conclusions as to the location, severity or duration of the ailment or its effect on plaintiff's ability to work.

A report from the Veterans Administration Hospital in Memphis, Tennessee dated April 8, 1969, and signed by Dr. A. J. Weber, III, was also admitted into evidence. That report showed that plaintiff first noted joint pain and swelling in his right knee more than fifteen years earlier, but recovered therefrom very quickly and had no recurrence until 1964, when he was admitted to the V. A. Hospital with pain and swelling in the right knee, diagnosed then as arthritis of undetermined etiology. The report further showed that in late 1968 plaintiff returned to the V. A. Hospital complaining of pain, swelling and tightness in both hands which prevented him from...