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October 10, 1958


The opinion of the court was delivered by: John E. Miller, District Judge.

Plaintiff brought this action under Title 42 U.S.C.A. Sec. 405(g), to review an adverse final decision of the Secretary of Health, Education and Welfare, under the Social Security Act. By proper procedures the plaintiff sought an administrative determination that he was entitled to a "period of disability" and disability benefits under the Social Security Act, Title 42 U.S.C.A. Secs. 416 and 423. The Referee denied the relief sought. The plaintiff exhausted his administrative remedies, and the Referee's decision became the final decision of the Secretary.

This action to review that decision was filed on July 1, 1958, and on August 25, 1958, defendant filed his answer together with a certified copy of the transcript of the administrative record, including the evidence presented to the Referee and the Referee's written decision.

Jurisdiction of this court is conferred by Title 42, U.S.C.A. Sec. 405(g), which also provides that any administrative findings of fact are conclusive if supported by substantial evidence. The factual inferences and conclusions of the Referee are likewise binding if so supported, but the Referee's conclusions or interpretations of applicable law, while perhaps persuasive, are not in any way binding on review by this court. For a more complete exposition of these rules see Bostick v. Folsom, D.C.W.D.Ark. 1957, 157 F. Supp. 108; Fuller v. Folsom, D.C. W.D.Ark. 1957, 155 F. Supp. 348.

The plaintiff sought to establish a "period of disability" under Title 42 U.S.C.A. Sec. 416(i), in order to "freeze" his insured status under the Social Security Act, and also sought to obtain disability benefits under Title 42 U.S.C.A. Sec. 423(c) (2). Both sections define "disability" in identical terms, except that in regard to conditions not relevant here Sec. 416 is somewhat more liberal. "Disability" is defined as meaning:

    "* * * 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."

If the plaintiff was "disabled" as defined by the act, he was otherwise qualified for disability benefits and for the establishment of a "period of disability", but the burden of proving disability was upon the plaintiff. Bostick v. Folsom, supra; Fuller v. Folsom, supra.

The Referee, who heard the matter on January 7, 1958, and who also received into evidence subsequent medical reports, concluded that no disability existed, and in any event that any disability was not of indefinite duration as required by the act. The Referee, in reviewing the evidence, stated:

    "The claimant alleged in his application to
  establish a period of disability that he had become
  unable to engage in substantial work in December
  1952, at age 54. His former employment was as a
  boiler fireman, he had a fourth grade elementary
  education. He further alleged that he had stopped
  work because of an ankle injury on December 12, 1952,
  was in a cast for about two weeks and then on advice
  of his doctor went back to work. The injured area
  became infected and pus formed in his ankle and
  afterwards the knee, from which condition he cannot
  stand or sit in any position very long. His only
  listed current activity was walking a little around
  the house. (TR.9)
    "The claimant testified before the referee that his
  employment from December 1952 to October 16, 1953,
  was intermittent and that at the time of his injury
  in December 1952, was employed as a boiler fireman at

  which work he had been engaged for some nine years.
  The claimant further stated that this work had been
  consistent to the date of his injury in 1952. In
  specific reference to the injury the claimant stated
  he had broken his ankle on December 12, 1952, and
  that the injured member was in a cast for two weeks
  and four days and that when he tried to resume work
  he had re-broken his ankle which incident was about
  eight or nine weeks after the cast was removed. He
  described an operation in 1955 wherein an incision of
  some fourteen inches had been made to the front of
  his knee and an additional incision at the back of
  the knee which operation incurred some five weeks
  hospitalization. He further advised that Dr. R.V.
  Bennett had recommended an additional operation which
  would involve the use of a brace and that he would be
  unable to work; could just get around the house; and
  that the limb would be stiff. He also had been
  advised that the operation was for the purpose of
  stopping the pain which he had continuously at this
  time. He described present difficulties with his
  knee, ankle, and hip involving swelling, particularly
  in the ankle occasioned by walking, and that his
  present condition prevented him from doing anything
  other than just sitting around the house or reclining
  on his bed. He further stated that he can walk only
  some three to four city blocks but had been advised
  by his doctor to exercise, particularly in walking,
  to keep his joints from becoming stiff. The claimant
  stated that he took capsules for pain and that he has
  difficulty in sleeping and `just worries himself to
  sleep at night.'
    "The medical reports in the file at the time of the
  hearing in this case were by Dr. Thomas M. Durham,
  Jr. These reports, two in number, reflect a history
  of the injury referred to by the claimant and
  intermittent treatment by several physicians since
  that time and chronic synovitis and later post
  traumatic arthritis of the right subastragalar joint.
  Dr. Durham's findings consisted of a one-half inch
  enlargement of the right knee with definite
  intra-articular reaction and a large Baker's cyst
  posteriorly; moderate quadriceps atrophy, but good
  range of knee motion with minimal limitation due to
  swelling only. The doctor further stated that the
  right ankle is improving and shows no enlargement as
  compared with the left, but there is still
  approximately fifty percent restriction in
  subastragalar motion. There was x-ray evidence of
  post traumatic arthritis of the subastragalar joint
  with osteoarthritis changes, mild in degree in the
  right knee. A biopsy report of the right ankle
  revealed a nonspecific synovitis. The doctor, by
  comment, stated his conclusion that the claimant has
  been disabled under the present episode since
  February 1955, because of post traumatic arthritis of
  the right subastragalar joint and osteoarthritis of
  the right knee. The last report of this doctor dated
  March 12, 1957, reported additional findings of post
  traumatic arthritis of the right subastragalar joint
  with a chronic tenosynovitis of the posterior tibial
  tendon on the right confirmed by surgery. He also has
  a recurrent villonodular synovitis of the right knee
  which has recurred after synovectomy of the knee."

The Referee did not make any findings of fact as such, and his written decision is cast in the form of a review of the testimony and exhibits. While none of the testimony or exhibits are contradicted on any matter of fact and, therefore, must be accepted not only by the Referee but also by this court, the failure to make findings of fact rather than mere summaries of testimony would make a decision by a reviewing court impossible where any facts or inferences are in dispute.

The Referee concluded:

    "In the letter accompanying the above referenced
  report Dr. Bennett stated that he had advised a
  primary compression arthrodesis of the knee. The
  stated object of this operation was to give the
  claimant a `painless stable leg on which to work'.
  The present disability of the extremity was estimated
  by the doctor to be about eighty percent. It was his
  feeling that there would be approximately forty-five
  percent disability after the operation.
    "From a careful review of the evidence in this case
  it is apparent that claimant's condition has not been
  such as to affect more than one extremity and such
  condition in the absence of an involvement of other
  physical impairments is not sufficient to constitute
  a disability of such severity as to qualify the
  claimant under his applications. While the claimant
  suffered reverses in the attempts of his doctors to
  effect a cure it appears that his condition was such
  that might be expected to respond to proper treatment
  and surgery. Claimant's condition, then, has not
  been, nor is it now, one of indefinite duration. The
  report of Dr. Bennett substantiates this finding. It
  is demonstrated that a substantial improvement in
  claimant's condition can be effected by an operation
  without danger to claimant's health and that claimant
  is willing to submit to the operation. While it
  cannot be said that claimant's condition is of such
  severity as to warrant a finding of disability under
  the Social Security Act even at this time, the fact
  that the proposed operation may be reasonably
  anticipated to give claimant `a painless stable leg
  on ...

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