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November 20, 1958


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

  The plaintiff filed this suit on June 7, 1958, to review an adverse decision of the Secretary of Health, Education and Welfare on the plaintiff's claim for a period of disability and disability benefits under the Social Security Act, Title 42 U.S.C.A. §§ 416(i) and 423. Jurisdiction is vested in the district courts for review of such decisions under Title 42 U.S.C.A. § 405(g).

On November 22, 1955, the plaintiff filed application to establish a period of disability, and in due course the application was denied by the Bureau of Old Age and Survivors Insurance. The record does not reflect an application for disability insurance benefits, but the Referee in his written opinion, which is a part of the record, recites that such an application was filed on the date of the hearing and the complaint asserts a claim for the cash disability benefits as well as for the establishment of a period of disability.

Following the adverse determination of the Bureau, the plaintiff requested a hearing before a Referee and, after proper notice, such a hearing was held on December 12, 1957. On February 28, 1958, the Referee rendered his written opinion in which he concluded that the plaintiff's impairments were not of such a severe nature as to have prevented him from engaging in substantial gainful activity. Accordingly the Referee denied the plaintiff's claims for both the period of disability and the disability insurance benefits. On April 8, 1958, that decision was accepted by the Secretary of Health, Education and Welfare as his final decision, and within the required period the plaintiff filed this suit for review.

The defendant answered in due course, attaching to his answer a transcript of the administrative record, and on October 1, 1958, filed his motion for summary judgment and his brief in support thereof. Under Local Rule 8, the plaintiff had 10 days in which to file his brief in opposition to the defendant's motion for summary judgment. No brief was filed within the time prescribed, but since that time the court has repeatedly requested a brief in opposition to the defendant's motion, and although over a month has elapsed since the plaintiff's brief was due, none has yet been filed. However, on October 27, 1958, the plaintiff filed his motion to take additional testimony. Title 42 U.S.C.A. § 405(g), authorizes a remand of the case to the Secretary for the purpose of admitting additional testimony where good cause is shown.

The Referee's findings of fact and reasonable inferences therefrom must stand if supported by any substantial evidence. 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. Secs. 416(i) and 423 are substantially identical, and a claim is established under those sections only by showing that the plaintiff has a medically determinable physical or mental impairment of such a nature that it can be expected to result in death or a disability of long-continued and indefinite duration which prevents the plaintiff from engaging in any substantial gainful activity. The burden of proof is upon the plaintiff to prove these conditions. Fuller v. Folsom, supra.

The plaintiff's testimony with respect to his disability is confined to a claim that he suffers from arthritis in his knee and hip and hardening of the arteries which prevent him from standing for any long period of time. During the war he served with the Seabees, and prior to that worked for approximately 12 years as a carpenter. Following his discharge he worked as a meat cutter in retail markets. In March of 1952 he gave up working altogether, complaining that he was unable to stand. He asserts that a walk of several blocks completely tires him and that he does nothing around his home except to mow the grass. He has sought no employment since March of 1952.

The medical evidence in the record consists of some five reports by the Veterans Administration released at the plaintiff's request and the reports of Dr. R.B. Drew and Dr. A.V. Adams. The reports of the Veterans Administration, made at various times beginning in September 1955, when the plaintiff was hospitalized in Veterans hospitals, are substantially similar. The most recent report was completed May 11, 1957, on the basis of examination of the plaintiff during his hospitalization for the preceding 30 days. The examining physicians made diagnoses as follows:

    "Diagnosis #1.  Osteomalacia, with early degenerative
                    arthritic crepitus,
                    knees, symptomatic on
                    left                                - treated, sl. improved.
                2.  Conversion reaction, chronic
                    manifested by persistent
                    physical complaints                 - treated,    unchanged.
3.  Malnutrition, chronic, mild         - treated,     improved.
4.  Varicose veins, lower extremities   - untreated,  unchanged.
                5.  Absence, ¾ distal phalanx,
                    left middle finger                  - untreated,  unchanged.
                6.  Spermatocele, small, left           - untreated,  ...

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