MEMORANDUM
HIRAM CHURCH FORD, Senior District Judge (serving by designation).
The plaintiff (claimant) Oakie Murphy, of Phyllis, Pike County, Ky., filed his application on February 10, 1964, with the Social Security Administration seeking that he be determined entitled to a period of disability and to disability insurance benefits under the Social Security Act. On his application, claimant alleged that he became unable to work February 28, 1963, because of "back condition". (Tr. 87-90).
His application was denied initially (Tr. 93) and on reconsideration (Tr. 98) by the Divisions of Disability Operations of the Social Security Administration.
Upon request of claimant, a hearing was held at Pikeville, Ky., on February 17, 1965, before Hearing Examiner Herman Platt. (Tr. 23-83). Claimant, his wife Christine Murphy, and his sister Buna Hunt were present and testified. Vocational Consultant Ronald G. Hampton was also present and testified. Thereafter, on April 30, 1965, the Hearing Examiner filed his decision (Tr. 5-19) holding that the claimant was not entitled to a period of disability or to disability insurance benefits under the Social Security Act, as amended. The claimant filed a request for review, which was granted by the Appeals Council. On May 28, 1965, the Appeals Council filed its decision (Tr. 2) affirming the decision of the Hearing Examiner. The decision of the Appeals Council thus became the final decision of the defendant, Secretary of Health, Education and Welfare.
On July 12, 1965, plaintiff filed this civil action pursuant to § 205(g) of the Social Security Act, 42 U.S.C.A. § 405 (g), for Court review and reversal of the defendant's final decision.
A certified copy of the transcript of record, including the evidence upon which the findings and decision complained of are based, has been duly filed. It shows that the claimant met the special earnings requirements during the effective period of the application and continues to meet such requirements through September 30, 1968. (Tr. 6, 99).
In his decision, the Hearing Examiner summarized the claimant's background as follows:
"Claimant is a 36-year-old caucasian male, six feet two inches tall, weighing 190 pounds. He is married and lives with his wife and four children; he said he was not sure about their respective ages. Claimant is virtually illiterate, since he is able to write only his name, and cannot read. He had had no special training nor any rehabilitation indoctrination, and has never been in the military service. He grew up on a 200-acre farm, where he did plowing, fed and milked the cows and helped raise corn and vegetables. He has not worked with any farm machinery. At about age 16, having gone through the third grade in elementary school, he obtained his first job with a gas company, digging ditches for pipe lines; he used an air hammer in connection with his work. At age 18 he went to work for the Eastern Coal Company as a coal-loader. He then obtained a job with the Kentland-Elkhorn Coal Company, where he worked for 17 years until he was hurt in a slate fall. His experience in the mines was varied; he used an electric drill, did `shooting' (blasting), operated a mechanical Joy Loader, laid track, did timbering, spliced defective cables, helped put up the ventillating screens and bolted the roof. He said he had spent a total of 19 years in the mines, mostly in `high' coal (5 feet). The claimant was working on the Joy Loader when he was injured in a slate fall on February 28, 1963; he testified that he was struck on the head, knocked backwards, and then rocks fell across him. He was taken to the Pikeville Miners Memorial Hospital, where he remained for a month. He said that all he received there was `dope'; that he was not put in a cast, and was in bed all of the time, except when he had to go to the bathroom (on crutches). After his discharge he was required to return every two weeks. When the undersigned referred him to Exhibit 15, wherein was incorporated a statement that his fractures were well-healed, the claimant disagreed and said that his back was not well, although he conceded that his pubic bone did not hurt him. He testified he had made two attempts to go back to work and had put in a total of six shifts, but could not tolerate the effort entailed in walking.
"Mr. Murphy testified that he lived in a four-room frame house with an outdoor water supply, and that his wife and children carried in the water. He said he thought he could do it, but simply didn't. The house, according to him, is heated with coal; this is brought in by the children. He stated he was able to take care of his own personal needs, did a slight amount of walking, performed no household chores, and just `messed around' and `laid around' on the couch most of the time; that he belonged to no social organizations, no church, and spent half his time watching television. He said he had no special mattress to sleep on nor any special chair, and that he would sit on a couch where he could rest his back while watching TV. He said he was currently living on credit, and that he received no welfare assistance except commodities; that there was a small vegetable garden used for subsistence, although he did no work in it. When the undersigned pointed out to him that he seemed to have a very good recollection for past events, and that it was odd he could not recall the ages of his children, he replied that he just didn't keep up with them. He said he had no outdoor hobbies, that he had once had a driver's license, but was caught `drunk driving' in 1956, and that it was thereupon revoked. He stated, however, that he had not done any drinking for four years, but smoked some. He alleged that the chief obstacles to returning to work were his back and legs; that they hurt all the time, and that if he did any substantial walking during the day he was unable to sleep nights. He said the pain in his back and legs was very sharp at times, and traveled to the end of his toes. He said, however, that he was not taking any medication; that he had been told to exercise, and that he had, indeed, tried this, but had given up three or four months before, since it achieved nothing. He said he had begged the company to obtain surgery for him for his back, but that he had been rejected; that he could not afford to go to a doctor regularly at the present time, and that the hospital had given him medicine for his pain, although he could not tell that it helped any. He allegedly feels worse since he quit work, and expressed the opinion that he could not do any light bench work because he was in such pain. He also said he had made no attempt to find work as he did not know of anything which he could do. The undersigned suggested work in a service station, but the claimant rejected this since, he said, he would not be able to stand on his feet." (Tr. 6-7).
After reviewing the facts of claimant's background and other evidence in the case, the Hearing Examiner gave the following evaluation of the medical evidence:
"It it apparent that there are gross discrepancies in the findings and conclusions reached by the various physicians who have examined the claimant, most particularly with regard to the position taken by Drs. Hess and Sutherland on the one hand, and by the various doctors at the Miners Memorial Hospitals on the other. Resolution of such discrepancies is within the province of the Hearing Examiner Stobaugh v. Flemming, CCH, UIR, Fed.Para. 8769, (D.C.E.D.Ark., 11/23/59); Stoliaroff v. Ribicoff, 198 F.Supp. 587 (N.D.N.Y. 10/24/61); Talley v. Flemming, 195 F.Supp. 264 (D. of Nevada, 12/6/60).
"This Examiner was struck, not merely by the disagreement with respect to diagnoses, but also with the radical difference in interpretation of the various x-rays of the claimant's pelvis and back. Indeed, not only has there been disagreement among the physicians, but discrepant findings have been advanced by the physician who testified in connection with the claimant's hearing before the Workmen's Compensation Board. It is noted that this physician first testifeid that: `X-ray examination shows an old healed fracture of the right pubic bone * * *', then that `the x-rays of the pelvis show a fracture of the ischial and right acetabular junction with incomplete healing' and finally that it would take `probably approximately around 12 months for those fractures to heal completely'. (Emphasis ours). Although he specified 12 months from the time of the injury, it is noted that at the time of the hearing, 16 months had already elapsed since the accident itself.
"The observations, findings and conclusions made by the various physicians at the Miners Memorial Hospitals where claimant has been examined are extremely persuasive, because the reports entered by these institutions are consistent and have been made by individuals whose experience with coal miners would be very difficult to match. It is noted that pursuant to Exhibit 26, on November 1, 1963, the fracture of the right pubic bone was described as `old united fractures' and that this fracture was described as `well-healed' on March 13, 1964 (Exhibit 15), again on May 13, 1964 (Exhibit 17). The undersigned, therefore, cannot ascribe too much weight to
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