Lewis v. Flemming, Civ. No. LR 3690.

• Decision Date: 29 September 1959
• Docket Number: Civ. No. LR 3690.
• Citation: Lewis v. Flemming, 176 F.Supp. 872 (E.D. Ark. 1959)
• Parties: William O. LEWIS, Plaintiff, v. Arthur S. FLEMMING, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

176 F. Supp. 872

William O. LEWIS, Plaintiff, v. Arthur S. FLEMMING, Secretary of Health, Education and Welfare, Defendant.

Civ. No. LR 3690.

United States District Court E. D. Arkansas, W. D.

September 29, 1959.

Abner McGehee, of Cockrill, Laser & McGehee, Little Rock, Ark., for plaintiff.

Osro Cobb, U. S. Atty., and James W. Gallman, Asst. U. S. Atty., Little Rock, Ark., for defendant.

HENLEY, Chief Judge.

On the cross-motions of the parties for summary judgment.

This is an action brought by the plaintiff under Section 205(g) of the Social Security Act, as amended, 42 U.S.C.A. § 405(g), to secure a judicial review of a final administrative determination that he is not entitled to a "period of disability" or to the "disability benefits" provided by the Act. The plaintiff filed his original claim on August 30, 1957; the claim having been denied in the first instance, the plaintiff requested a hearing before a referee of the Office of Appeals Council of the Social Security Administration. A hearing was held, and the Referee found that the plaintiff was not entitled to a "period of disability" or to the payment of disability benefits; on February 4, 1959, the Office of Appeals Council declined to review the Referee's decision. That determination constituted a "final decision" of the defendant Secretary, and the plaintiff having exhausted his administrative remedies brought this action as authorized by the statute.

It was and is the theory of the plaintiff that he sustained an injury to his lower back or hip in July 1955, and that he has been totally disabled since that time. Thus, under the governing statutory provisions the burden was upon him to establish by a preponderance of credible evidence that he is unable "to engage in any substantial gainful activity by reason of (a) medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration." 42 U.S.C.A. §§ 416(i) and 423(c) (2).

In his opinion, the Referee reviewed the evidence in detail and found "that claimant's impairments, or any combination thereof, are not of such a degree of severity as to preclude claimant from engaging in some types of activities for which he is qualified by training and experience." It is this ultimate finding that the Court is called upon to review.

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. See Dunn v. Folsom, D.C.Ark., 166 F.Supp. 44; Bostick v. Folsom, D.C.Ark., 157 F.Supp. 108; Fuller v. Folsom, D.C.Ark., 155 F. Supp. 348; Aubrey v. Folsom, D.C.Cal., 151 F.Supp. 836.

While the Court recognizes that it was the peculiar function of the Referee to appraise the materials submitted to him, to weigh the plaintiff's testimony, and to draw inferences from the entire record before him, nevertheless, after a careful consideration of the record, the Court is convinced that the Referee's ultimate finding in this case is not supported by substantial evidence, and that the administrative determination adverse to the plaintiff cannot be upheld. The record before the Referee consisted of papers filed by the plaintiff in support of his claim, the testimony of the plaintiff, which was uncontradicted and unimpeached, and a number of medical reports hereinafter abstracted.

At the hearing before the Referee the plaintiff testified that he was born in January, 1897, that he has only a sixth-grade education, and that he has no trade or specialty. All of his active life has been spent in heavy physical labor, such as farming, carpentry and blacksmithing. He has also had some experience in welding and sheet metal work, both of which involve physical labor. He and his wife reside in the country in a house belonging to his son-in-law.

The plaintiff further testified that in July, 1955, while working about his farm his right leg collapsed under him, and that since that time he has been physically unable to do any kind of work; that he is in constant pain; that he has been treated by a number of physicians, and that all they have been able to do for him is to give him some sedation, which affords him some minor and temporary relief from his suffering. Due to his condition, he spends most of his time in a rocking chair with a pillow at his back to ease him. In 1956, he undertook to make a crop, but was unable to finish it, and it was necessary for his neighbors to come to his aid.

The plaintiff testified further that Dr. Edward L. Dunnaway, of Conway, Arkansas, first diagnosed his case as one of a ruptured intervertebral disc, and that it has since been determined that he has arthritic spurs on his spine which press into the flesh causing his pain, and that he has been advised that surgery in his case is not feasible. He also stated that Dr. Nixon, an orthopedic surgeon in Little Rock, Arkansas, has advised him not to lift anything heavier than a plate lunch.

It is plain from the Referee's opinion that he did not disbelieve the plaintiff or consider that he was malingerer. On the contrary, the Referee stated that he was "impressed with the sincere testimony of the claimant and he has no reason to doubt any of the material facts to which the claimant testified". Not only did the Referee not disbelieve the plaintiff's testimony, but that testimony is strongly corroborated by the medical materials in the record as well as by a letter from claimant's wife wherein she graphically describes her husband's sufferings and condition.

The report of Dr. Dunnaway reflects that the plaintiff is suffering from a generalized arthritic condition, involving his legs, back and other parts of the body; that he has prescribed sedation, that plaintiff's condition is not static, and that he has advised the plaintiff not to work. Dr. Dunnaway was also of the opinion that the plaintiff, due to his arthritis has a 50% disability in his right hip and an equal disability in his lumbar spine.

The report of Dr. B. F. Banister, also of Conway, is that the plaintiff is suffering from arthritis in the lumbo-sacral region of the back, that he suffers severe pain in that region,...