Joki v. Flemming

• Decision Date: 30 November 1960
• Docket Number: Civ. No. 231.
• Citation: 189 F. Supp. 365
• Parties: Jake O. JOKI, Plaintiff, v. Arthur S. FLEMMING, Secretary of Health, Education, and Welfare, Defendant.
• Court: U.S. District Court — District of Montana

189 F. Supp. 365

Jake O. JOKI, Plaintiff, v. Arthur S. FLEMMING, Secretary of Health, Education, and Welfare, Defendant.

Civ. No. 231.

United States District Court D. Montana, Billings Division.

November 30, 1960.

Jones, Olsen, Dowlin & Pease, Billings, Mont., for the plaintiff.

Krest Cyr, U. S. Atty., Butte, Mont., and John F. Blackwood, Asst. U. S. Atty., Billings, Mont., for defendant.

JAMESON, District Judge.

This is an action under section 205(g) of the Social Security Act, as amended, 42 U.S.C.A. § 405(g), to obtain a judicial review of a final administrative determination by the Secretary of Health, Education, and Welfare that plaintiff is not entitled to have a "period of disability" established under section 216(i) of the Act, 42 U.S.C.A. § 416(i).¹

Defendant has moved for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, 28 U.S. C.A. The motion is based on the pleadings and the transcript of proceedings before the Social Security Administrator.²

On February 28, 1956, plaintiff applied to the Social Security Administration, Bureau of Old Age and Survivors Insurance, for the establishment of a period of disability from July 1, 1953, claiming to be disabled under the Act by reason of coronary insufficiency or a weak heart. On October 24, 1956, the Secretary determined that plaintiff was "not under a disability of sufficient severity to qualify for disability freeze".³ Plaintiff filed a request for reconsideration, which was denied. A hearing before a referee of the Department of Health, Education, and Welfare was had on August 20, 1958.

The decision of the referee, dated September 29, 1958, finding that plaintiff was not entitled to a period of disability, was made final by a denial on June 22, 1959, by the appeals council of the Department, of plaintiff's request for review.⁴

Under section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, * * *."

The pertinent portions of plaintiff's testimony before the referee may be summarized as follows:

He had a seventh grade education and was employed from 1942 to 1951 as an electrician. In 1951, while on vacation in the Big Horn Canyon near Hardin, Montana, he was suddenly taken ill and subsequently hospitalized at Hardin, for a heart attack or pneumonia.⁵ As soon as he felt he could be moved he went to Spokane, where he was confined in St. Luke's Hospital for a period of forty days.⁶ He has suffered from a heart condition since August 15, 1951, (when he was 49 years of age) which has prevented him from engaging in any employment whatsoever. In February, 1952, he was brought from Spokane to Red Lodge, Montana, by his brother-in-law who was to take care of him. He was treated by doctors several times but was not hospitalized again until October, 1957. During that interval, for the most part, he lived by himself, cooked his own meals and did his own housekeeping. He was able to drive a standard shift automobile, a 1952 Plymouth. He had gone fishing for three or four hours in a day on occasion, but is no longer able to do so. He went deer hunting in 1952 and 1956, but in 1956 was gone only twenty minutes, and his cousin Jacob Paavola helped him carry the deer that he shot.

With regard to a deer hunting expedition in 1957 plaintiff testified, "Well, I felt a little better a year ago last fall there. I went deer hunting and I didn't tramp around in the woods like you would think a deer hunter would do but I drove the car up down there where I could sit in the brush and wait until somebody drove a deer up to me. I probably was out there six hours or so but I didn't walk over two miles on the whole day. I just sat around there and I got a deer and I dragged that thing to the car and took care of it and that was too much." As a result of this hunting activity he suffered a second heart attack which necessitated hospitalization.

At present he is required to spend from twelve to fourteen hours a day in bed and would not be able to engage in sedentary type of work requiring sitting up for eight or ten hours, and mental concentration and even talking for substantial periods wear him down. He can do minor electrical work around the house like replacing a light switch, fuses, etc., and would be glad to do such work for his relatives, but there isn't much of that type of work to do.⁷

Jacob Paavola, plaintiff's cousin and life-long friend, and Mrs. Lina Elizabeth Hertin, his sister, both corroborated in part plaintiff's own testimony regarding his condition and activities.

As summarized in the referee's decision, the medical evidence of record consists of the following:

"A statement from the Big Horn County Community Hospital of Hardin, Montana, dated April 8, 1957 and signed by Ursula E. Zelka, R. N., Supertindent (sic.) (Exhibit No. 19) shows the claimant was hospitalized there from August 15 to August 31, 1951, and that the claimant was treated by Dr. R. O. Yeatts with a diagnosis of Muscle strain-thoracic portion of spine and possible coronary occlusion.

"An Abstract of Hospital Record of St. Luke's Hospital, Spokane, Washington, to Jacob Joki dated April 18, 1957 (Exhibit No. 18) states the claimant was hospitalized there from September 3 to October 12, 1951. This abstract shows the following complaint and history: Pain, L. chest radiating to L. arm; dyspnea; onset about two weeks before admission; hospitalized in Montana at the time. X-ray Diagnosis: 9/4/51: Cardiac enlargement, with L. ventricular hypertrophy: pneumonitis, prob. secondary to bronchiectasis, R. Base; thickened pleura, R. side. Electrocardiogram, September 3, 1951: Anterior wall infarction. Electrocardiogram, September 17, 1951; Healing infarct. The final diagnosis was anterior myocardial infarction; complicated by pneumonitis, R. base.

"A medical report from Dr. James J. Kane, Red Lodge, Montana, dated March 2, 1956 (Exhibit No. 4) states that he first saw the claimant November 11, 1952, and continued seeing the claimant approximately every 6 months until March 2, 1956, the date of the last examination. The history contained in this report indicates a coronary occlusion in 1951, that the applicant became unable to work on August 15, 1951, and that there is no previous history of this illness. The present condition shows substernal chest pain on exertion to any extent, electrocardiogram changes consistent with coronary insufficiency and old myocardial infarct and patient is ambulatory. Blood pressure is shown as 142/90; functional cardiac capacity is Class 3 with marked limitation; no dyspnea or edema, but claimant gets angina on exertion. Claimant on metomine tablets after meals and at bedtime. Diagnosis: Coronary Sclerosis, old coronary infarct.

"A letter from Dr. Milton H. Coutu of Red Lodge, Montana, dated January 9, 1957, addressed To Whom It May Concern (Exhibit No. 9) certifies that he attended the claimant on February 6, 1952, May 12, 1952 and July 16, 1952 and that on these dates he was suffering from a coronary occlusion and was totally disabled and unable to perform any work whatsoever for an indefinite period.

"An additional letter from Dr. Coutu to the Social Security Administration dated March 28, 1957 (Exhibit No. 20) confirms the information given in the letter dated January 9, 1957 (Exhibit No. 9) and further states the doctor saw the claimant on August 29, 1952, September 4, 1953 and September 10, 1954, for insurance purposes and on those dates the claimant was still totally disabled and unable to perform any work whatsoever and for an indefinite period.

"A medical report from Dr. G. R. Brosius of Billings, Montana, dated December 19, 1956 (Exhibit No. 10) shows no previous history of the illness but that it occurred in August 1951 at which time the applicant became unable to work. This physician states he saw the patient only once, on December 19, 1956, but that the claimant was seen in 1952 by another doctor who has since expired. The present condition, as stated on this report, shows the claimant to be ambulatory, with symptoms of weakness, palpitation and some probable angina. Electrocardiogram shows extensive old anterior myocardial infarction. The heart is not enlarged. The diagnosis is given as arteriosclerotic heart disease with old myocardial infarction and probable angina pectoris, anxiety state and also an irritable colon. The report states the condition is apparently static with no improvement expected. The cardiac functional capacity is listed as Class 3 with marked limitation; blood pressure 128/80; no edema but dyspnea on moderate exertion. The doctor advised the claimant should not engage in strenuous work and further stated: `This man is emotionally unable to work — He has heart disease that limits his activities and the emotional problem limits what he could do even more.'

"A statement by Dr. Fred E. Harvey of Spokane, Washington, dated January 11, 1952 and furnished to the Pacific Mutual Life Insurance Company (Exhibit Number 15) shows that the claimant was totally disabled and continuously prevented from engaging in any occupation on August 15, 1951, because of a coronary occlusion and pneumonia, that this physician had not previously attended the claimant but did treat him in St. Luke's Hospital from September 3 to October 12, 1951, after which date the claimant was confined to his house. He stated the total disability would continue until six months from date of onset (which was August 15, 1951).

"A statement by a Billings, Montana physician, dated October 7, 1952, and furnished to the Pacific Mutual Life Insurance Company (Exhibit Number 16) shows this doctor saw the claimant on September 29 and 30, 1952, in his office, at which time the patient was confined to his house. Patient gave a history of hospitalization in Hardin for 16 days in August of 1951, out for 4 days and then hospitalized again for

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