Park v. Celebrezze

• Decision Date: 18 February 1963
• Docket Number: Civ. A. No. 1668.
• Citation: 214 F. Supp. 153
• Parties: Robert F. PARK, Plaintiff, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Western District of Arkansas

214 F. Supp. 153

Robert F. PARK, Plaintiff, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Defendant.

Civ. A. No. 1668.

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

February 18, 1963.

Robert E. Irwin, Russellville, Ark., for plaintiff.

Charles M. Conway, 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, Robert F. Park, 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) (1), 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).

On September 27, 1960, plaintiff filed his application to establish a period of disability and his application for receipt of disability insurance benefits. The applications were subsequently denied, and the plaintiff thereafter requested a reconsideration of said denial. Upon reconsideration the Bureau of Old-Age and Survivors Insurance affirmed the denial of the applications, and the plaintiff thereafter requested a hearing before a hearing examiner. The hearing was conducted on October 17, 1961, and on December 28, 1961, the hearing examiner filed his decision denying the plaintiff's claim. Thereafter the plaintiff requested the Appeals Council to review the hearing examiner's decision, and on July 2, 1962, the Appeals Council denied plaintiff's request for review. The decision of the hearing examiner therefore became the final decision of the defendant Secretary.

The plaintiff filed the instant action on August 29, 1962, and in due time the defendant filed his answer. The case is now before the court on cross motions for summary judgment. Briefs have been received from both sides in support of their respective contentions and have been considered by the court.

The pertinent facts in this case are not in dispute. The plaintiff was born May 4, 1928, at Clarksville, Arkansas. His formal education consisted of completion of the ninth grade. He was first employed when he was 19 years old by the Ozark Hardwood Company as a laborer in the log yard for a period of eight months. He next worked in the hardwood flooring plant of the Galloway Lumber Company as an end matcher and operator of a knot saw for a period of six months. He was next employed by the Sparton Aircraft Company at Tulsa, Oklahoma, where he worked in the woodworking department as an operator of saws and moulding machines. He left this employment in September 1951 and went to Dodge City, Kansas, where he was employed by the Fairmont Food Company as a route salesman. After two years he quit his job with Fairmont and went to work for the Western Light and Telephone Company in the appliance service and electrical department. During his employment with Western, he received on-the-job training and acquired skill in the repair of electric stoves, refrigerators and other electrical appliances. On July 8, 1954, while employed by Western he suffered a back injury when he fell down some steps while helping to carry a washing machine. As a result of this accident he suffered two herniated discs located in the fourth and fifth lumbar region. After this injury the plaintiff continued to work for Western as often as he was able, but he was bothered with increasing pain in his lower back which radiated into his left leg, causing extreme discomfort and loss of control of his left leg. On July 7, 1955, he underwent an operation in which two discs were removed and three vertebrae were fused in the same lumbar region of his back.

In 1956 he returned to Arkansas and opened a small electrical shop where he worked on appliances of all sizes. Even though the work was not strenuous, he had difficulty in bending over and lifting even small objects and could not sit at his work bench for any length of time. He had to close his shop a year later for lack of business, since he could not make service calls to repair larger electrical appliances which could not be easily removed to his shop. He then tried to do some farming in the summers of 1958 and 1959, but this sort of work proved to be much too strenuous and left him immobilized for days at a time.

In March 1960 he went to work for the Clarksville Machine Works in Clarksville, Arkansas, which employment he had obtained through his acquaintance with the manager and owner. The production foreman of the Machine Works also suffered from a back condition, and knowing of the plaintiff's similar condition, he made a special effort to work out an arrangement whereby the plaintiff could work as a machine operator without experiencing pain and difficulty. During a four to five months period, plaintiff was assigned to various machines, the operation of which required either standing or sitting or a combination of both. Even though the production foreman found the plaintiff to be mentally alert and capable of learning quickly any given assignment, it was not possible to retain him because plaintiff could not remain in any one position for more than an hour or two, and often he would have to lie down or oven go home during the work day in order to relieve pain and discomfort which he experienced while operating any of the machines for more than an hour or two.

Plaintiff's present condition is summarized by the hearing examiner as follows:

"He received 90 percent disability from the Kansas Workmen's Compensation Commission, amounting to $11,620. He has no income at present. His wife works in the Circuit Clerk's office. They have six children, ages from 13 to 3 years old. He drives the car but testified that he has to stop often. At times he experiences difficulty in walking, although he can sometimes walk 2 or 3 blocks. At present he does not have to take anything for pain. On an average day he gets up at approximately 6:00 in the morning, eats breakfast, and just loafs around until he gets tired of it. He testified that he just piddles around home and town; that he quit hunting and fishing a year and a half ago; that he cannot watch television because of pain on sitting. He stated that he reads quite a bit in bed, lying on his back. He testified that normally his appetite is good if he is able to move around. He experiences some back pain at all times."

The medical report of Dr. Charles Rombold, dated December 29, 1960, indicates that the plaintiff was first seen in 1954 after he complained of a back injury suffered in July 1954. Dr. Rombold performed a spinal fusion on July 7, 1955, and he last examined the plaintiff on January 23, 1957. At that time plaintiff still complained of pain in his lower back and left leg, but no abnormal physical findings were made at that time. The X-ray report stated as follows: "The fusion series demonstrates no motion at either level of the fusion. The fusion mass posterior appears quite solid." The diagnosis was that the plaintiff had suffered a herniated nucleus pulposus which had been treated by the spinal fusion.

In a medical report dated March 17, 1961, Dr. W. E. Knight of the Holt-Krock Clinic, Fort Smith, Arkansas, indicated that he had examined the plaintiff on September 23, 1957, at the clinic. At that time the plaintiff was found to stand erect without any list to the right or left. He had no evidence of any atrophy of any of the muscles in either leg, and he was able to squat without any difficulty, sitting with his buttocks on his heels. With the plaintiff lying down, his straight leg raising was restricted bilaterally at about 45 degrees, which seemed to be due to "hamstring tightness," and not due to true sciatic irritation, the sciatic stretch signs being negative. At this time the plaintiff complained of pain at the lumbo-sacral junction on pressure, and there was some limitation of flexion of the lumbar spine. The report further indicates that the plaintiff could stand and bend over forward and touch his toes without bending his knees, but he did this by flexing at the hips and held his lumbar spine fairly rigid. Dr. Knight concluded the report by stating that he found no evidence of subsequent herniated disc, but that the plaintiff's complaints were due to lumbosacral instability. He recommended a low-back support and, if necessary, a lumbosacral fusion should be attempted again.

Dr. Guy Shrigley of Clarksville, Arkansas, is the plaintiff's family physician. He has treated the plaintiff from February 14, 1957, to the present time. His first report to the defendant was submitted on September 29, 1960, in which he recited the plaintiff's medical history, and diagnosed his condition as: "herniated intervertebral disc, lumbar (operated); lumbo-sacral instability." The subjective symptoms consisted of pain in the low back, with radiation down left leg; unable to perform any gainful operation due to extreme difficulty. The objective findings consisted of muscle spasm; a well healed scar in midline, lower back; and restricting in straight leg raising, tenderness in lumbosacral junction. The treatment consisted of injections, salicylates, physiotheraphy, heat application, and wearing of a lumbo-sacral support. As to specific restrictions on the plaintiff's activity, Dr. Shrigley stated as follows: "Patient is unable to be on his feet for any length of time in any sort of gainful employment; has attempted to work as an electrician and machinist." Dr. Shrigley submitted an additional report on December 13, 1960, which gives essentially the same information concerning the plaintiff's back besides an account of treatment of a bruised knee.

On March 15, 1961, plaintiff was examined by Dr. Hoyt Kirkpatrick of the Holt-Krock Clinic of Fort Smith, Arkansas. In his report dated March 20, 1961, Dr. Kirkpatrick indicates the same sort of findings of the previous medical reports with the...