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 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
"Diagnosis #1. Osteomalacia, with early degenerative
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, ...