Wray v. Folsom, 1437.

• Decision Date: 15 October 1958
• Docket Number: No. 1437.,1437.
• Citation: 166 F. Supp. 390
• Parties: Albert J. WRAY, Plaintiff, v. Marion B. FOLSOM, Secretary of Health, Education and Welfare, United States of America, Defendant.
• Court: U.S. District Court — Western District of Arkansas

166 F. Supp. 390

Albert J. WRAY, Plaintiff, v. Marion B. FOLSOM, Secretary of Health, Education and Welfare, United States of America, Defendant.

No. 1437.

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

October 15, 1958.

Hardin, Barton, Hardin & Garner, Kimbrough & Westmoreland, Ft. Smith, Ark., for plaintiff.

Chas. W. Atkinson, U. S. Atty., Robert E. Johnson, Asst. U. S. Atty., Ft. Smith, Ark., for defendant.

JOHN E. MILLER, District Judge.

The plaintiff sought by proper administrative procedures to establish a "period of disability" under the Social Security Act, Title 42 U.S.C.A. § 416. Upon an adverse final decision of the Secretary of Health, Education and Welfare, he filed this action to review the Secretary's decision under the authority of Title 42 U.S.C.A. § 405(g). The defendant duly answered, attaching to his answer a certified copy of the transcript of the administrative record, including all exhibits, the testimony before the Referee, and the written decision of the Referee, which became the final decision of the Secretary.

The plaintiff's complaint seeks to reverse the Secretary's decision, but after filing the complaint the plaintiff moved to remand the case for the sole purpose of admitting additional evidence, and the question before the court at this time is whether such a remand is justified under all the circumstances of this case.

The governing section is Title 42 U.S. C.A. § 405(g), which provides:

"The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, and where a claim has been denied by the Secretary or a decision is rendered under subsection (b) of this section which is adverse to an individual who was a party to the hearing before the Secretary, because of failure of the claimant or such individual to submit proof in conformity with any regulation prescribed under subsection (a) of this section, the court shall review only the question of conformity with such regulations and the validity of such regulations. The court shall, on motion of the Secretary made before it files its answer, remand the case to the Secretary for further action by the Secretary, and may, at any time, on good cause shown, order additional evidence to be taken before the Secretary, and the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm its findings of fact or its decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which its action in modifying or affirming was based. Such additional or modified findings of fact and decision shall be reviewable only to the extent provided for review of the original findings of fact and decision. The judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions."

Thus the question to be determined is whether there is "good cause" to order additional evidence to be taken.

This case originated approximately three years ago when the plaintiff filed his undated application to establish a period of disability sometime in October or November of 1955. Following this application, a report of Dr. W. H. Bollinger of Charleston, Arkansas, dated December 7, 1955, was filed. No further action was taken until October 22, 1956, when the Bureau of Old Age and Survivors Insurance denied the period of disability. The plaintiff sought a reconsideration, and on December 19, 1956, the Bureau again denied his application.

The plaintiff requested a hearing before a Referee on December 26, 1956, and that hearing was held on November 21, 1957. Additional medical reports were filed by Dr. Bollinger and by Dr. Hal Dildy of Little Rock, Arkansas.

Prior to his impairment, the plaintiff was a truck driver. The undisputed evidence showed that for some months prior to his acute disability he had experienced some trouble, and on October 1, 1955, while performing his work, he suddenly became almost blind, dizzy and unable to stand, that sweat popped out on his face, and he was unable to make the "run" which he had been about to start. He went to Dr. Bollinger, who found a carbuncle "all over the back" of his head. He visited Dr. Bollinger twice each day for two weeks. Dr. Bollinger diagnosed diabetes, hypertension and overweight. No doctor examined him to determine the nature of his obesity or whether it was due to glandular trouble, but after going on a diet the plaintiff lost 117 pounds. Dr. Bollinger prescribed insulin in treating the diabetes. The plaintiff testified that "it all but knocks me out." (Tr. 26). The insulin does not produce convulsions or coma, but he does react with intense perspiration, headache, and extreme lassitude. He takes insulin daily, and the same reaction results each day. It also produces nausea and extreme weakness. He testified that he could walk a mile on occasion without rest and could cut grass in his yard a few minutes at a time.

The plaintiff's testimony was corroborated by his wife, his employer, and one J. C. Womack, who testified that the plaintiff was not able to hunt and fish as he had done previously.

The medical evidence consisted of reports of Dr. Bollinger, a report of Dr. Dildy dated May 8, 1957, and a Revised Disability Determination made by persons in the Bureau. The Revised Disability Determination is based upon the medical reports of Dr. Bollinger and after reviewing those reports states:

"* * * the applicant may have some disability, but the medical evidence fails to present ample support of an impairment that will be of long continued and indefinite duration." (Emphasis added.)

The same report concludes:

"Decision: Based on all the facts, the applicant is found not disabled, therefore, the claim is denied."

Aside from the fact that the determination by the Bureau in this report is based on an erroneous requirement of "ample" evidence of impairment, it cannot be considered as substantial evidence because it was not based on actual examination of the plaintiff or even a "consultive" examination, as was Dr. Dildy's. See Bostick v. Folsom, D.C. W.D.Ark.1957, 157 F.Supp. 108, 117-118.

Dr. Bollinger's reports indicated that the plaintiff was unable to work and that no improvement could be expected. He confirmed the diagnosis of diabetes and hypertension since October 1, 1955. His report dated January 1, 1958, also diagnoses arthritis, respiratory difficulties, and a heart condition.

Dr. Dildy's report, dated May 15, 1958, concurred in these diagnoses and indicated a further diagnosis of obesity. He concluded:

"He shows poor control of diabetes. At present his diabetes could be considered severe but could be improved with additional loss of weight. He needs to follow a diet more closely and to continue loss of weight. I think his hypertension is related to obesity and not related to a renal eitology. He shows hypertension on physical examination and left axis deviation by EKG without evidence of enlargement of the heart shadow. He has had no treatment other than weight loss for the hypertension." (Tr. 52)

Dr. Dildy indicated that he expected "optimum improvement" within six months.

Thus it will be seen that the only evidence in the record indicates a severe disability at the time of the hearing. Under this state of the evidence, the Referee concluded:

"In consideration of all the evidence in this case the referee finds that although the claimant has diabetes and a moderate heart condition and that both conditions are complicated by obesity, the fact that the claimant is showing a fair response to treatment for his diabetic condition and the functional capacity of Class II requires only a slight limitation, it cannot be said that his overall ability has been so severely affected that he is continuously unable to engage in some type of gainful activity. While it is true that he may not be able to return to his former job, it is apparent that he may, in the foreseeable future, be able to return to some type of gainful work. He is presently able to do some work involving moderate exertion and can walk some distance without serious difficulty. It accordingly appears that it may be reasonably expected that by following the prescribed diet, and by further reduction of weight, he could secure better control of his condition which will result in an increased capacity which will result in an ability to pursue gainful employment involving a lesser degree of exertion than that required as a truck driver." (Tr. 8)

The Referee's conclusion was not based upon a finding that the plaintiff had no impairment or that the impairment was not sufficient to prevent him from engaging in substantial activity. On the contrary, the Referee's finding was that the plaintiff's present impairment would not be of indefinite duration as required by the statute, and a period of disability was denied...