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WRAY v. FOLSOM

October 15, 1958

ALBERT J. WRAY, PLAINTIFF,
v.
MARION B. FOLSOM, SECRETARY OF HEALTH, EDUCATION AND WELFARE, UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: 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. ...


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