Strickland v. Califano, FS-76-86-C.
Decision Date | 22 March 1978 |
Docket Number | No. FS-76-86-C.,FS-76-86-C. |
Citation | 447 F. Supp. 410 |
Parties | Bennie E. STRICKLAND, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant. |
Court | U.S. District Court — Western District of Arkansas |
Stephen M. Sharum, Fort Smith, Ark., for plaintiff.
Larry R. McCord, U. S. Atty., Fort Smith, Ark., for defendant.
On January 2, 1974, plaintiff, Bennie E. Strickland, filed application for disability insurance benefits in which he alleged his disability as "back injuries and nerve damage from a myelogram done five years ago, effecting legs and hands". (Tr. 72-75). The application was initially denied on February 7, 1974. (Tr. 76-77). Reconsideration was denied on May 15, 1974 on the ground that the plaintiff was not under a disability.
Hearing was held in Mena, Arkansas, by Gene C. Smith, Administrative Law Judge, on August 6, 1975, who on October 10, 1975 held that plaintiff is not entitled to the establishment of a period of disability or to disability insurance benefits on the ground that plaintiff's physical impairments consisting of residuals of vertebral fracture are not of a level of severity as to preclude him from engaging in any substantial gainful activity. He further held that plaintiff "is unable to return to his previous heavy work as a construction worker, but he is and has been able to function normally otherwise."
On January 9, 1976, the Appeals Council approved the Administrative Law Judge's decision and May 14, 1976 the plaintiff filed his complaint, in which he alleged:
An answer of defendant to the complaint was filed September 15, 1976 and on September 24, 1976, Chief Judge, Paul X Williams, entered an order remanding the case to the Secretary "for a new hearing before an Administrative Law Judge at which plaintiff may present new and additional factual and medical evidence."
On December 14, 1976, a supplemental hearing was held at Fort Smith, Arkansas, by Denton D. Gossett, Administrative Law Judge, who filed his opinion on February 18, 1977, in which he held:
In discussion of the claim, the judge stated:
On May 17, 1977, the Appeals Council adopted said decision and found that the plaintiff was not entitled to a period of disability. The decision of the Appeals Council became the final decision of the Secretary.
On March 14, 1978, the Secretary filed his motion for summary judgment, supported by brief, on the ground that there is no issue of fact and the defendant is entitled to a judgment as a matter of law. On March 15, 1978, plaintiff filed his motion for summary judgment, supported by brief, on the ground that there is no issue of fact and plaintiff is entitled to a judgment as a matter of law.
It is undisputed that in 1965 plaintiff was involved in an automobile accident in which he received severe injuries to his right side, including the arm, shoulder, hip and leg. A myelogram was performed evidencing a lesion on his spine. Surgery was recommended but declined by plaintiff. The medical reports substantiated that the plaintiff's lesion was aggravated by the possible improper insertion of a needle during the myelogram x-ray examination. (Tr. 97).
The neurosurgeon later committed suicide.
To complicate matters, the plaintiff, in 1969, while working fell off of a ladder causing a compression fracture of the L-1 vertebrae. (Tr. 97).
On July 4, 1973, a third injury occurred when the plaintiff stepped off of a truck and in the fall, struck his back and tail bone on a blunt leg of a compressor causing severe pain and aggravation of pre-existing injuries. (Tr. 41 and 53).
Occasionally, plaintiff wears a brace which gives only partial relief from the injuries suffered by him. That he has continuous severe pain localized in his back lumbar region and entire right side of his body is admitted by all physicians, but it is contended that it is not sufficient to disable him.
Dr. Alfred B. Hathcock, of the HoltKrock Clinic of Fort Smith, Arkansas, on February 1, 1974, writing on behalf of the Orthopaedic-Neurological Professional Associates, advised Wayne G. Loftin, Director of Disability Determination of the Social Security Administration, as follows:
(Tr. 98).
Dr. Hathcock did not mention the fall of plaintiff on July 4, 1973 which caused severe pain and aggravated the prior injuries of 1965 and 1969.
In the opinion of the Administrative Law Judge, Gossett, of February 18, 1977, he evaluated the statements of the physicians as follows:
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...On the contrary, the administrative law judge cited a district court decision from the Western District of Arkansas, Strickland v. Califano, 477 447 F.Supp. 410 (1978), which quoted extensively from a Sixth Circuit Court of Appeals decision, Sayers v. Gardner, 380 F.2d 940 (1967), and offer......
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