Peck v. Ribicoff

• Decision Date: 14 April 1961
• Docket Number: Civ. A. No. 732.
• Citation: 193 F. Supp. 450
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Robert M. PECK, Plaintiff, v. Abraham RIBICOFF, Secretary of Health, Education and Welfare, Defendant.

193 F. Supp. 450

Robert M. PECK, Plaintiff, v. Abraham RIBICOFF, Secretary of Health, Education and Welfare, Defendant.

Civ. A. No. 732.

United States District Court E. D. Virginia, Newport News Division.

April 14, 1961.

T. Howard Spainhour, Norfolk, Va., for plaintiff.

Joseph S. Bambacus, U. S. Atty., Richmond, Va., Roger T. Williams, Asst. U. S. Atty., Norfolk, Va., for defendant.

WALTER E. HOFFMAN, District Judge.

By this proceeding plaintiff seeks a review of a final decision of the Secretary of Health, Education and Welfare, 42 U.S.C.A. § 405(g), denying his application for disability benefits as defined in 42 U.S.C.A. § 423(c) (2), the latter section providing as follows:

"The term `disability' means inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration. An individual shall not be considered to be under a disability unless he furnishes such proof of the existence thereof as may be required."

It is freely acknowledged that the findings of the Secretary as to any fact, if supported by substantial evidence, is conclusive. Such is the mandate of the statute. 42 U.S.C.A. § 405(g). As said by Chief Justice Hughes in Consolidated Edison Co. of New York v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126:

"Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

Plaintiff is now 55 years of age. He completed three years of high school. In 1922, at the age of 16, he commenced working for the Norfolk National Bank which, of more recent years, has been known as the National Bank of Commerce following several mergers and consolidations. For a period of 35 years, until September 20, 1957, he was continuously employed by this banking institution. At least during the latter years his particular function was that of a silver counting teller, operating a coin counting and wrapping machine. Physically the work did not require much exertion, although he was required to lift coin bags weighing from 22 to 40 pounds. For the major portion of the time he remained seated at the machine.

On September 20, 1957, plaintiff was admitted to the Norfolk General Hospital for treatment of a condition initially diagnosed as ulcerated colitis. He was discharged after one week as "not improved." He subsequently applied to the Veterans Administration and was sent to Cherry Point, North Carolina, in October 1957, where he remained for two or three weeks at the hospital in that locality. Plaintiff was then transferred to the Veterans Administration Center at Kecoughtan, Hampon, Virginia, where he was admitted to the hospital on November 21, 1957, and remained there until February 28, 1958, at which time he was transferred to the Domiciliary, adjacent to and operated as a part of the Veterans Administration facility.

The record in no respect reflects that plaintiff is feigning his condition. When first admitted to a hospital the medical record indicates that he was bleeding frequently from the rectum in association with symptoms of a severe colitis. The medical diagnosis was "Idiopathic Ulcerative Colitis in its hemorrhagic phase" with the following comment: "This disease is a very intractable one and with his age period and the extreme weight loss I felt that a protracted rest, preferably in a hospital, was indicated." In May, 1958, the Chief of the Domiciliary Medical Service at Kecoughtan made this diagnosis: (1) inactive chronic ulcerative colitis, (2) pulmonary emphysema, (3) pernicious anemia, (4) tuberculosis, minimal, inactive. In the same report the physician stated: "It is anticipated that he will probably remain a Domiciliary member indefinitely," and in response to an inquiry as to when employment might be resumed, he noted "indefinite."

On May 21, 1958, plaintiff was again moved to the hospital at Kecoughtan where he remained until December 18, 1958. He filed his application for benefits by reason of disability on May 1, 1958.

A medical report dated July 29, 1958, marked plaintiff's condition, among other factors, as follows: "Loss of weight, diarrhea, fatigue," and in answer to certain questions, stated:

"Q. Is condition static? A. Yes.

"Q. If not, what optimum improvement can be expected, if any?

A. None.

"Q. Have you advised applicant not to work? A. Yes."

By letter dated November 24, 1958, plaintiff was notified that his application for disability benefits had been denied. On the same date, the Ward Physician at Kecoughtan reported:

"Our thinking concerning his diagnosis has changed since the report Dr. Buckley furnished you report of May 14, 1958. We now believe his chief difficulty to be pernicious anemia * * *. We believe his colon malfunction which consisted in diarrhea with passage of much mucous, but no blood, to be on a neurologic basis, secondary to combined system disease * * *. This patient is gaining weight, and the function of his colon has improved since he has been on Vitamin B-12."

When plaintiff was discharged from the hospital on December 18, 1958, at which time he was again transferred to the Domiciliary, the discharge report contained the following comment:

"At the present time his stools have been reduced to about 5-6 per day, but on his worse episodes he will pass 3 in the daytime and 8-10 at night with continual leaking of mucous from his rectum, especially when he is sitting or lying. Apparently it is not so bad when he stands up * * *. Another complaint which this man has is a numbness and tingling of his fingers which is worse in the morning when he gets up but as the day goes on and he uses his hands counting silver money, this numbness goes away. His left leg seems to be somewhat numb but this does not bother him very much * * *. It is expected that this patient will show slow improvement as far as neurological findings are concerned. His mucoid colitis does not seem to bother the patient very much * * *.

"* * * His rectal condition has gotten worse and he comes in for more intensive studies."

Dr. Buckley, the Chief of the Domiciliary Medical Service, again reported on January 8, 1959, that pernicious anemia constituted the primary diagnosis, and further said:

"Since being discharged December 18, 1958 to the Domiciliary, vitamins and a bland, low residue diet have been prescribed for him. At present he has a constructive assignment from 9-11 A.M., Monday through Friday. It is anticipated that he will probably remain in a Domiciliary indefinitely."

In answer to an inquiry as to when employment may be resumed, Dr. Buckley noted, "indefinite."

At the time of a re-examination on June 9, 1959, plaintiff was reported as being "symptomatically better" with his "medical problems per se under temporary control." On October 10, 1959, Dr. Buckley reported:

"Medical management of this veteran on the equivalent of an outpatient basis continues to present quite a problem due to the necessity for continued close observation and treatment, as is to be expected and no definite improvement in his condition over that at the present time can be expected. Primary treatment as recommended upon his discharge from the hospital in December 1958 continues and will continue indefinitely.

"This veteran's constructive assignment in the Domiciliary is of very light nature requiring little physical effort in the sense of

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