Rayborn v. Weinberger

• Decision Date: 14 April 1975
• Docket Number: No. H 74-80.,H 74-80.
• Citation: 398 F. Supp. 1303
• Parties: Dewey RAYBORN, Plaintiff, v. Caspar WEINBERGER, Secretary, Department of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Northern District of Indiana

398 F. Supp. 1303

Dewey RAYBORN, Plaintiff, v. Caspar WEINBERGER, Secretary, Department of Health, Education and Welfare, Defendant.

No. H 74-80.

United States District Court, N. D. Indiana, Hammond Division.

April 14, 1975.

COPYRIGHT MATERIAL OMITTED

David P. Matsey, Legal Aid Society, Gary, Ind., for plaintiff.

John R. Wilks, U. S. Atty., Fort Wayne, Ind., for defendant.

MEMORANDUM AND ORDER

ALLEN SHARP, District Judge.

This is an action brought pursuant to Section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), for a review of a final decision of the United States Secretary of Health, Education and Welfare that the plaintiff was not entitled to a period of disability or to disability insurance benefits under Sections 216 (i) and 223(d)(1), 42 U.S.C.A. §§ 416 (i)(1) and 423(d)(1).

The plaintiff filed his application for disability benefits on December 9, 1971, wherein he claims that he became unable to work commencing September 18, 1971. His application was initially denied on May 2, 1972. His request for reconsideration was denied on February 27, 1973. He then requested and was granted a hearing before an Administrative Law Judge, which hearing was held in Chicago, Illinois on August 20, 1973. The Administrative Law Judge entered his finding and decision on August 30, 1973 that the claimant was not entitled to a period of disability or to disability insurance benefits under §§ 216(i) and 223 respectively of the Social Security Act. A request for a review by the Appeals Council was filed by the claimant on September 7, 1973 and the request was denied by the Appeals Council on January 3, 1974. The plaintiff, by counsel, sought and was granted a first extension of time to commence a civil action for judicial review. A second extension of time to commence civil action was granted by the Appeals Council. All final administrative remedies having been exhausted, the claimant then filed this action for judicial review on October 12, 1973. This case is now before the Court on cross-motions for summary judgment.

The issue before the Court is whether or not the final decision of the Secretary is supported by substantial evidence.

The plaintiff was born in Humbolt, Kansas, on September 19, 1928. He weighs about 180-190 pounds and is 5 feet 6 inches tall. He is married and lives with his disabled wife and four year old child at 4401 Central Avenue, East Gary, Indiana. The record shows that he has an 8th grade education. Numerous medical reports are contained in the record. The claimant and his mother-in-law, Pauline Wilson, testified at the administrative hearing.

Dr. Crise reported that he first saw the claimant on November 18, 1967 for an ulceration on the opening of Wharton's duct. The remainder of the observations were within normal ranges. On November 20, 1967 the duct was reported as okay. He was seen on March 11, 1969 at Mercy Hospital and was treated for injuries from an automobile accident. A skull X-ray was taken and he was released. His blood pressure was 130/88. On March 14, 1969 he reported he was feeling better. He was seen again on December 27, 1969 with a swollen ankle and a lump and was put on medication. There was much less inflammation revealed on January 2, 1970. The lesion was excised from the top of the left foot and a specimen was sent to lab for a biopsy. Healing appeared okay on January 23, 1970. Fluid in the operative area was revealed on February 6, 1970. He was seen on February 20, 1970 and still had "quite a fibrous nodule". The pathology report of the foot tissue specimen indicated nonspecific chronic inflammation, slight, with nodular fibrosis. An X-ray taken on November 17, 1967 revealed an essentially normal chest.

Dr. Crise diagnosed the claimant's condition on March 29, 1972 as irritation, depression and poor coordination. He found no evidence of cervical or lumbar nerve root compression or paravertebral muscle spasm.

Dr. Kilgore conducted a psychological examination on November 27, 1972. He found that the claimant's full scale I.Q. was 103. The Bender Gestalt Z score results indicated that the claimant was badly in need of psychiatric help. Line drawing tremors suggested pent up aggression. He found fairly conclusive evidence of cortical deficits. He found little ego strength, easily spotted as indication of extremely ill individuals in poor contact. The Rorschach showed the existence of anxiety affectional needs. It showed a weakness in reality testing representing a structural index to the degree of his self disintegration. There was a suggestion of an inability to perceive accurately as found in persons with schizophrenia or excessive neurosis. It further showed lack of central control. He found that the claimant was so preoccupied with illness that he virtually excludes other interests. He said this indicates severe psychosomatic stress. There was evidence of paranoid thinking. He reported that the claimant was unable to work at this time because of emotional maladjustment. He diagnosed his condition as schizophrenia, paranoid type and hysterical personality.

Dr. Crise reported on October 24, 1972 that the claimant was mentally retarded with a mental age estimated at 6-7th grade level. He thought there may be minimal cerebral palsy.

The claimant was examined for the Administration by Dr. Bernard, a neurologist. The neurological examination revealed a satisfactory physical status, though somewhat obese. He had no pathological reflexes and his cranial nerves were relatively intact. He said his responses to quick commands were rather slow. Psychometric testing, he felt, would reveal this. He added that the claimant has a mental impairment with reduced mental faculties but no organic or physical impairment of his nervous system. An EEG report was normal. Dr. Bernard concluded that at his age and mental status, the claimant would not be hired for any but the most menial jobs.

A lengthy consultative examination was conducted for the Administration by Dr. Hogle on January 12, 1973. He found the claimant to be quite obese with a female type fat distribution. He appeared to be overly friendly, fawning, and constantly apologetic. He spoke with a high pitched, squeaky voice. His facial grimacing and gestures were similar to those with cerebral palsy. Dr. Hogle observed that the claimant's stance and posture were crude and lacked fine and smooth coordination. He found Mr. Rayborn's condition as very confusing. The clinical reports and interviews revealed borderline intelligence, or low average at best. However, tests indicated a 103 I.Q. The clinical evidence showed impaired muscular and neurological coordination, yet a neurologist was unable to report positive findings of neurological deficits. He found from a clinical viewpoint and despite neurological and psychological tests to the contrary that his condition was non-psychotic organic brain syndrome with fatal anoxemia and inadequate personality. He felt that under minimal stressful personal and family situations he could work somewhat successfully. However, he said that presently caring for his invalid wife and baby was too stressful to enable him to work. His present setting caused his work abilities to break down. He considered the claimant disabled from any gainful occupation. The claimant's estimated ability to relate to others was moderately impaired. His personal habits were moderately deteriorated. His interests were moderately severely constricted. He could only fairly comprehend and follow instructions, perform solitary, simple and repetitive tasks. His ability to work with others or perform complex or varied tasks was poor. He concluded that under his present family situation very little improvement could be expected.

Dr. Crise in the final report said the plaintiff was somewhat mentally retarded.

The claimant appeared at the hearing unrepresented by counsel. He was told he had a right to have a lawyer present but that it was not required. He testified that he was disabled as of September 18, 1971 by a back problem with coordination problems. He was born in Kansas in 1928 and left school at age 16 or 17 for academic reasons.

His first job was as a messenger boy for Western Union in Liberal, Kansas, a job which lasted about 2½ years. He left that job to work at a newspaper where his father was circulation manager. He worked there about nine years where he supervised the newsboys. He left the newspaper job because it became too big and complex for him to handle.

He was then employed in the printing trade from 1948 to 1957. He left by mutual agreement claiming difficulties with his fellow employees.

He moved to Gary, Indiana where his parents had now resided. He apparently spent six unsuccessful months looking for employment until he eventually found a job flagging trailers in Illinois. He worked a few months doing janitorial work in Kansas and expressed difficulty keeping up with the work. He tried returning to the printing trade but left because they were giving him a rough time.

Mr. Rayborn came back to Gary, Indiana in 1958 and through the rehabilitation division of the Indiana Employment Service obtained a job at Lakeside Laboratories in Gary delivering film. He drove a vehicle until he had a couple of accidents in 1970 delivering film in Chicago. He was taken off driving and put back to janitorial work. He said he was having difficulties with his boss and quit when he learned he could get severance pay. Because his presence was needed at home, he has not worked since.

Mr. Rayborn married his current wife on August 20, 1965. She was disabled at the time. They have one small child born on April 25, 1971. His wife is in a wheelchair and cannot get in and out of bed or go to the bathroom by herself.

He said his back started bothering him in the middle 1950's when he hurt it lifting some heavy objects. He added that he has had a coordination problem all his life. He drives an automobile and...