Harmon v. Ribicoff, Civ. A. No. 1542.

• Court: U.S. District Court — Western District of Arkansas
• Writing for the Court: JOHN E. MILLER
• Citation: Harmon v. Ribicoff, 192 F.Supp. 743 (W.D. Ark. 1961)
• Decision Date: 10 April 1961
• Docket Number: Civ. A. No. 1542.
• Parties: Amil A. HARMON, Plaintiff, v. Abraham A. RIBICOFF, Secretary of Health, Education and Welfare, Defendant.

192 F. Supp. 743

Amil A. HARMON, Plaintiff, v. Abraham A. RIBICOFF, Secretary of Health, Education and Welfare, Defendant.

Civ. A. No. 1542.

United States District Court W. D. Arkansas, Fort Smith Division.

April 10, 1961.

James Marvin Holman, Clarksville, Ark., for plaintiff.

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

JOHN E. MILLER, Chief Judge.

This is an action by the plaintiff, Amil A. Harmon, to review a final decision of the defendant Secretary, denying the plaintiff's application for a period of disability and disability benefits, as authorized by the Social Security Act, as amended, 42 U.S.C.A. §§ 416(i), 423. This court has jurisdiction of the action pursuant to Sec. 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g). The applicable section of the statute 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, * * *."

On October 1, 1957, the plaintiff filed his applications to establish disability and for disability insurance benefits. The applications were subsequently denied, and the plaintiff thereafter requested a hearing before a Referee. The hearing was conducted on May 5, 1959, and on October 21, 1959, the hearing examiner filed his decision denying the plaintiff's claims. The plaintiff requested the Appeals Council to review the Referee's decision, and on March 17, 1960, a hearing was held before the Appeals Council. The decision of the Appeals Council was filed May 5, 1960, affirming the decision of the hearing examiner. Plaintiff filed the instant action in this court on July 5, 1960, and in due time the defendant filed his answer. The case is now before the court on defendant's motion for summary judgment. Briefs have been received from each side in support of their respective contentions and have been considered by the court.

The plaintiff was born in Johnson County, Arkansas, on July 27, 1901. His formal education consisted of completion of the 7th grade in a rural school. Since leaving school, he acquired no special skills or training. He has spent most of his life working in and around sawmills or as a farm laborer. At the present time he lives with his wife on a 25acre farm in Johnson County, Arkansas. Prior to the spring of 1956 he had been employed at the Ozark Hardwood Company in Clarksville, Arkansas, for three or four years.

In May 1956 the plaintiff quit his employment to enter a hospital where he underwent surgery for the removal of his gall bladder. He was hospitalized for a period of 72 days, undergoing a total of three operations. The plaintiff had complained of stomach trouble for a year prior to his operations. Following his period of hospitalization, Harmon was confined to his home most of the time. He complains of constant pain in his stomach, is unable to keep his food down, and has, therefore, lost much of his strength. His activities around the house are primarily limited to lying in bed, sitting in chairs, and occasional short walks for exercise. He does not assist with the housework in any way, and does not drive an automobile. Harmon also complains of almost a total loss of sight in one eye due to a cataract, headaches, a double hernia, kidney ailments, a heart condition, and arthritis.

Plaintiff has submitted medical reports from doctors who treated him during his illness. The report of Dr. Robert H. Manley of Clarksville, dated October 1, 1957, reflects that the plaintiff had a ruptured peptic ulcer and that he had been operated on three times in an effort to correct this condition, but that only fair results had been obtained; that he has trouble retaining food and has suffered a marked loss of weight and physical weakness. At that time Dr. Manley noted that there was no improvement in sight for the plaintiff, that there was no surgery indicated that would help, and that he would never be able to work because his stomach would not retain enough food to maintain his strength. A report from Dr. George L. Hardgrave of Clarksville, Arkansas, also dated October 1, 1957, likewise reflects the plaintiff's stomach condition. In this report Dr. Hardgrave also notes a heart condition. However, this was not noted in a subsequent joint medical report of Drs. Hardgrave and Manley. Dr. Hardgrave in his October 1, 1957, report states: "This man is totally and permanently disabled to work."

A subsequent joint medical report from Drs. Hardgrave and Manley, dated April 28, 1958, again reflects that the plaintiff has a severe ulcerated stomach, and that in their opinion he "is not and never will be able to do any kind of work."

A letter report from Dr. John D. Olson of the Holt-Krock Clinic of Fort Smith, Arkansas, dated May 27, 1958, discusses the various operations which the plaintiff has undergone, and reflects that the plaintiff is still suffering from a duodenal ulcer, and that unless medical therapy does not heal this ulcer, that further surgery should be considered.

On March 9, 1959, Dr. James M. Kolb of Little Rock submitted a confidential medical report to the Arkansas Department of Public Welfare. This report was apparently made at the request of the State Welfare Agency. Dr. Kolb diagnosed the plaintiff's condition as (1) bilateral hernia inguinal, complete reduceable; (2) defective vision in left eye, light perception in right eye only; (3) VHD, mitral insufficiency with decompensation and hypotension; and (4) gastro-enterostomy (history). Dr. Kolb advised that the following physical capacities of the plaintiff should be limited or avoided: stooping, kneeling, lifting, reaching, pushing, pulling, and other.

Following the hearing before the Referee, the Social Security Administration arranged for the plaintiff to be examined by Dr. Jerome S. Levy of Little Rock. Dr. Levy's report concluded with the following:

"Conclusions: The x-ray examination of the chest does not show any cardiac enlargement, and does not show any evidence of intrathoracic pathology. The heart appears to be normal in its size and contours, and the lung fields do not show any evidence of infiltrative, exudative or neoplastic disease.

"The KUB was essentially negative, showing hypertrophic changes in the bodies of the lumbar vertebrae.

"The barium enema x-ray examination also failed to show any evidence of organic disease involving the colon. On both the KUB film and the barium enema study, there was a suggestion of enlargement of the liver.

"The x-ray examination of the upper gastro-intestinal tract showed the retained residual gastric secretions, markedly and constantly deformed duodenal cap which was irritable, tender and which contained a crater of an active ulcer."

In his decision the hearing examiner gave consideration to all of the ailments complained of by the plaintiff, and found that no one impairment or combination of impairments were of such severity as would preclude the plaintiff from engaging in all substantial gainful activity. A similar result was reached by the Appeals Council. However, they did not consider that the plaintiff was suffering from any heart condition in accordance with Dr. Levy's report. The Council also properly held that the cataract in the plaintiff's right eye, which developed subsequent to October 1957, could not serve as a basis for a favorable determination in this case.

The burden of proof before the Referee and in the instant proceeding is upon the plaintiff. 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 substantial basis for the conclusions. The Referee's conclusions of law, however, are not binding upon the court, although they are entitled to great weight. In reviewing the decision of the Referee, this court must not abdicate its conventional function. Blevins v. Fleming (Flemming), D.C.W.D.Ark.1960, 180 F.Supp. 287, 289; Fuller v. Folsom, D.C. W.D.Ark.1957, 155 F.Supp. 348, 349. The court's function in a review of this nature was succinctly summarized in Lewis v. Flemming, D.C.E.D.Ark.1959, 176 F.Supp. 872, at page 874, when the court said:

"In an action of this kind, judicial review should go no further than to determine whether the findings made by the administrative fact finder are supported by substantial evidence and whether applicable principles of law have been correctly applied to the facts. Arbitrary or capricious action must be set aside, and, of course, a finding or conclusion based upon an erroneous view of the law cannot be sustained."

The meaning of the term "substantial evidence" and the application of that term by the court is, of course, of paramount importance in a determination of this case. The meaning and application of the "substantial evidence" test in Social Security cases have been subject to discussion in several recent cases. In Aaron v. Flemming, D.C.N.D. Ala.1958, 168 F.Supp. 291, Circuit Judge Rives, sitting by assignment, adopted Chief Justice Hughes' definition of substantial evidence, as follows:

"`Substantial evidence' is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

In Corn v. Flemming, D.C.S.D.Fla. 1960, 184 F.Supp. 490, at page 493, Judge Whitehurst adopted Judge Rives' definition of substantial evidence in the Aaron case, supra, and added:

"* * * The reliance of the Referee upon isolated remarks in two or three of the many reports before him is not enough to meet the test." Of substantial evidence.

In Harrison v. Flemming, D.C.E.D. Ark., Docket No. LR-60-C-101,...