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November 6, 1958


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

This is an action under Title 42 U.S.C.A. § 405(g), to review a final adverse decision of the Secretary of Health, Education and Welfare on the plaintiff's claim for a period of disability under the Social Security Act. The plaintiff claims that he was disabled within the meaning of Title 42 U.S.C.A. § 416(i), which provides:

    "* * * the term `disability' means (A) 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 *
  * *."

A period of disability is defined as a period of not less than six months during which the claimant was under a "disability" as defined above.

A hearing before a Referee was held on November 20, 1957, and in a written opinion dated January 17, 1958, the Referee held that the plaintiff was not so severely disabled as to qualify him for a disability freeze under the act, and further that his difficulties could be expected to terminate or lessen with proper therapy and that they would not be of long-continued and indefinite duration. This decision became the final decision of the Secretary on April 16, 1958, and on May 20, 1958, the plaintiff filed his complaint against Marion B. Folsom, then the Secretary, to reverse that decision. On November 4, 1958, Arthur Fleming, now Secretary of Health, Education and Welfare, was substituted as defendant by agreement of the parties.

The burden of proof is upon the plaintiff, and both the factual findings and the inferences drawn from the findings of the Referee must be accepted if there is any substantial evidence to support them. Fuller v. Folsom, D.C.Ark. 1957, 155 F. Supp. 348; Bostick v. Folsom, D.C.Ark. 1957, 157 F. Supp. 108. The Referee's conclusions of law, of course, are only persuasive, Fuller v. Folsom, supra, and his ultimate conclusions of fact or inferences drawn from the facts must have a rational connection with those facts. Wray v. Folsom, D.C. W.D.Ark. 1958, 166 F. Supp. 390; Boyd v. Folsom, 3 Cir., 1958, 257 F.2d 778.

The plaintiff's difficulties began in March 1950, when he suffered what is described as a "cerebral accident," or stroke. Prior to this time he had held a responsible job for many years as a wholesale salesman with the Berry Dry Goods Company of Fort Smith, Arkansas. His formal education was limited to the sixth grade, but just previous to his stroke he was earning from $12,000 to $16,000 a year in commissions.

Following his stroke the plaintiff was attended by Dr. L.A. Whittaker and Dr. J.E. Stevenson, and was sent by Dr. Stevenson to Dr. Pat Murphy of Little Rock. Dr. Murphy's report of April 1950 substantiated the finding of a stroke and added:

    "I have examined this man and find his neurological
  picture as described above, but I think he shows some
  improvement in that he feels pin prick lower down on
  his arm than the first day I examined him. I am not
  able to prove that this patient has a brain tumor nor
  has he had a vascular lesion, nor does he have a
  spinal cord disease or a peripheral nerve disease of
  an organic nature. The general picture as I see it
  now looks like we are dealing with a case of
  hysteria. The blood pressure is normal, urinalysis is
  normal. X-ray of chest shows some signs of
  bronchitis." (Tr. 83)

The plaintiff visited numerous physicians. His family physician in a report dated July 4, 1955, confirmed Dr. Murphy's diagnosis of hysteria and concluded that the plaintiff was "nervous physically, but mentally clear. Not able to follow his vocation as traveling salesman." The plaintiff visited Hot Springs, Arkansas, to take thermal baths in 1952, and at that time was seen by physicians at the Wade Clinic there. The Wade Clinic report of November 12, 1957, shows that in 1952 the plaintiff had only "about 25% sensation in right side of body and equilibrium has been bad. Urine has continued to show pus * * *. His chief complaint was weak spells."

Since 1954 the plaintiff was regularly attended by Dr. Ralph Kramer of Fort Smith, Arkansas. Dr. Kramer's report of November 18, 1957, summarizing his findings over that period, states:

    "He suffers from arteriosclerotic hypertensive
  heart disease with blood pressure being 260/120, on
  occasions. He has frequent complaints of dizziness
  and unable to swallow any large object. He has
  episodes of nervous attacks, becomes very weak and
  trembly and is afraid to be out of bed at that time.
  He has a recurrent infection of the prostate which
  has been treated by

  Dr. Downs, Cooper Clinic and also by Wade Clinic in
  Hot Springs. He has pain in both shoulders and states
  that it is from a cervical disc for which he was
  treated several years ago. He has been under
  treatment with Reserpoid, etc., for the past eight or
  nine months. His blood pressure is under control as
  long as his activity is limited.
    "We have recommended to this patient that he do no
  work because of his anxiety state and his
  hypertension. We feel that he is totally disabled
  from performing any gainful operation at the present
  time." (Tr. 99)

Dr. Ralph A. Downs of the Cooper Clinic at Fort Smith reported in a letter of November 29, 1957, that prostatic surgery might be called for in the future, but stated that it would be delayed until definite evidence of necessity was found because of the plaintiff's general health.

The plaintiff also visited Dr. Charles S. Lane, Jr., of Fort Smith, a specialist in otolaryngology, on April 5, 1957. Dr. Lane found the pharynx and larynx completely normal except for a complete paralysis of the left true vocal cord. The right vocal cord appeared normal. This impairment seems to ...

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