Jarvis v. Ribicoff

• Decision Date: 04 February 1963
• Docket Number: No. 14904.,14904.
• Citation: 312 F.2d 707
• Parties: Odist JARVIS, Plaintiff-Appellant, v. Abraham A. RIBICOFF, Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

312 F.2d 707 (1963)

Odist JARVIS, Plaintiff-Appellant, v. Abraham A. RIBICOFF, Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 14904.

United States Court of Appeals Sixth Circuit.

February 4, 1963.

W. L. Steele, Ashland, Ky., for appellant.

Stanley M. Kolber, Dept. of Justice, Washington, D. C. (William H. Orrick, Jr., Asst. Atty. Gen., Alan S. Rosenthal, Attys., Dept. of Justice, Washington, D. C., Bernard T. Moynahan, U. S. Atty., Lexington, Ky., on the brief), for appellee.

Before McALLISTER and WEICK, Circuit Judges, and BOYD, District Judge.

McALLISTER, Circuit Judge.

On May 2, 1958, at the age of 54, appellant became unable to work because of a ruptured disc, separated vertebra, and a painful hip. He subsequently filed application for disability benefits under Sections 216(i) and 223 of the Social Security Act (42 U.S.C.A. 416(i) and 42 U.S.C.A. 423). Appellant's application was denied, and his request for reconsideration was also denied. Thereafter, a hearing was held, and upon denial of the claim by the Hearing Examiner, request for review was denied, making the Hearing Examiner's decision the final declaration of the Secretary of Health, Education and Welfare. Appellant then filed his complaint in the United States District Court, which found substantial evidence to support the decision of the Secretary, and dismissed the complaint.

Is there sufficient evidence to support the Secretary's determination? This is the sole question in the case.

All of the doctors examining appellant agreed that he was suffering from "intervertebral disc damage" between L5 and S1 zone. Dr. Harry J. Stone submitted three reports concerning appellant, and all of these reports were to the effect that appellant was unable to work because he was suffering from a progressive degenerative spondylo-arthrosis. Dr. Stone, in his second report of January 20, 1959, further stated that appellant was suffering from the same degenerative disease, which was accompanied by severe back pain, nausea, vomiting, and nervousness, and stated that in his opinion appellant was 100% disabled. Dr. Stone, on September 12, 1959, in a further report, repeated his diagnosis, declaring that appellant was unable to work due to the progressive degenerative disease.

Dr. R. G. Culley examined appellant first in 1943 and periodically thereafter until 1958. On February 20, 1959, he found nervous, sluggish reflexes, pain on pressure, intervertebral disc damage, spondylo-arthrosis of the second, third and fifth lumbar bodies, muscle spasm, and hypertrophic osteo-arthritis of the right zygapophyseal joints.

Dr. L. D. Urban examined appellant at the request of Dr. Culley on February 7, 1959. His report is as follows:

"Examination of this lumbar spine and upper pelvis shows a loss of the anterior lumbar curve.

"The third lumbar body shows a large hyperostosis formation at the anterior articulating disk margin. To a lesser degree this is present in the second lumbar body at the inferior anterior aspect.

"There is a minimal amount of hyperostosis formation at the fourth lumbar body both at the superior and inferior aspects of the disk margins.

"The intervertebral disk space between the fifth lumbar body and the first sacral segment is markedly narrowed and shows osteo-condensation bone changes at each respective disk margin.

"Oblique studies shows some irregularity between the lumbo-sacral facet on the right side and the facet between the fourth and the fifth on this right side.

"The right and left sacro-iliac joints are not remarkable.

"IMPRESSION: This examination of the lumbar spine and upper pelvis shows changes in the lumbo-sacral joint space indicating a marked narrowing usually representative of intervertebral disk degeneration.

"The changes observed in the third lumbar body at the anterior aspect is usually produced by an old intrusion of the nucleous pulposous herniating into the margin of this structure.

"There is a minimal amount of degenerative spondylo-arthrosis of the second, third and fifth lumbar bodies. There is also a true hypertrophic osteo-arthritis of the right zygapophyseal joints. The loss of the anterior lumbar curve is usually attributable to reflex muscle spasm."

Appellant testified that Dr. Stone had stated that, in his opinion, surgery would not help the degenerative disease.

On June 16, 1959, Dr. William C. Roland examined appellant for the Bureau of Rehabilitation Services, in a Social Security Disability examination. His report, upon which the government relies, is as follows:

"Mr. Jarvis related that he has had trouble with his back for twelve to fourteen years following an injury at Armco lifting shell stock during the manufacture of shell cases, during or immediately after World War II. He was off work eleven months, and was in bed about six months during this attack with `lumbago.\' He has been treated by his family doctor, Doctor H. J. Stone, principally, and has also been examined by Doctor R. G. Cully, has had recent x-rays by Doctor L. D. Urban, and has been seen from time to time by Doctor W. H. Rice, the Armco plant physician. He quit work in 1958, under a physical retirement plan. He states he was never completely disabled between 1945 and 1958, but `had to watch myself.\'

"At the present time, he complains of: (1) Back pain, which lasted from its original onset to the present date. (2) Leg pain, extending down the leg with onset in 1958. (3) Weakness of the left leg. (4) Limping on the left leg when in pain. (5) Numbness, tingling, pins and needles, or paresthesias, in the left leg. (6) Coldness of the left leg and this, he says, `goes to sleep\' and `becomes dead.\' (7) Pain in the left low back and leg when sitting or standing for prolonged periods, particularly with weight on the left leg or buttock. (8) Pain on coughing or sneezing in the left lumbar region.

"Physical Examination: Age fifty-five, weight one hundred forty-six pounds, height five feet six inches. The point of maximum tenderness is in the left lumbar level at about the level of the fifth lumbar vertebral segment. Percussion over the lower lumbar spine causes wincing pain. There is a slight tilt to the right, forward flexion is accomplished to sixty to seventy degrees, backward bending is zero, the patient is unable to walk on his heels due to weakness of the left lower extremity. Gluteal tone is essentially normal on the left as compared with the right. Straight leg raising in the sitting position is positive bilaterally. The deep tendon reflexes show slight diminution of the left ankle jerk, and there is an L-5, S-1 zone sensory hypesthesia.

"X-ray examination

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