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March 24, 1960


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

This is an action in which the plaintiff, Albert J. Wray, seeks to establish "a period of disability" under provisions of the Social Security Act, 42 U.S.C.A. § 416. The action was filed in this court on June 24, 1958, after the plaintiff had exhausted all administrative procedures.

On September 25, 1958, plaintiff moved to remand the cause to the Secretary of Health, Education and Welfare for the receipt of additional evidence. Accordingly the case was remanded to the Secretary on October 15, 1958, for the receipt of additional medical evidence, together with any other evidence the Secretary might wish to receive. See Wray v. Folsom, D.C.W.D.Ark. 1958, 166 F. Supp. 390.

On November 3, 1958, Arthur Flemming, Secretary of Health, Education and Welfare was substituted as the party defendant by agreement of counsel.

Counsel for the plaintiff and for the Government have waived the filing of any additional briefs, and the case is now ready for disposition.

The basic facts established at the original hearing are not in serious dispute and are discussed in detail in the court's prior opinion reported in 166 F. Supp. 390. For present purposes it is sufficient to note that the plaintiff was born in 1905 and obtained a 4th-grade education. During most of his adult life he has been employed as a cross-country truck driver. In the summer of 1955 he experienced some difficulty with his health. In October 1955 the plaintiff's condition suddenly became worse, and he became dizzy and unable to stand. This condition interfered with his work as a truck driver. At that time he weighed approximately 375 pounds.

The medical evidence presented at the original hearing is discussed in detail in the original opinion.

The additional medical evidence offered by the plaintiff and included in the supplemental transcript is based on a series of tests and examinations conducted at the Holt-Krock Clinic at Fort Smith, Arkansas, on June 20, 1958. Examinations were conducted by Drs. Charles T. Chamberlain, E.A. Mendelsohn, and Carl L. Wilson. However, the principal reports were made by Dr. Chamberlain, and fully describe plaintiff's condition.

Dr. Chamberlain stated that on the basis of the findings, he diagnosed the claimant's condition as diabetes mellitus; obesity; arteriosclerosis with hypertension; hypertensive and arteriosclerotic heart disease; and angina pectoris. He added that in his opinion the claimant was permanently and totally disabled from performing any gainful activity for which he has been trained, namely, heavy manual labor.

In January 1959 the plaintiff was examined by Dr. Cecil F. Boulden of the Cooper Clinic in Fort Smith, Arkansas, at the request of the Appeals Council. In his report of January 22, 1959, Dr. Boulden recites the history given by the plaintiff which has been noted before. In the physical examination the plaintiff's height and weight were shown as 6 feet, 2 inches, 272 pounds.

In summarizing, Dr. Boulden indicated in his first report that on the basis of incomplete liver tests, it appeared from the first cephalin flocculation test that there was at least a moderate amount of liver damage. However, his supplemental report of January 29, 1959, corrected this finding as the subsequent complete liver profile failed to bear out the suspicion of liver disease previously reported. Despite a moderate amount of proteuria (protein in the urine), as represented by the pooled albumin, Dr. Boulden stated that the kidney function test was quite satisfactory. He diagnosed the claimant's condition as diabetes mellitus of the obesity type. Dr. Boulden concluded his report by stating:

    "It is a well-known fact that diabetes is
  ameliorated when the body weight is reduced by
  decreasing the caloric intake. Also the need for
  insulin increases remarkably with increasing body
  weight. It is a well-known observation that the obese
  diabetic is relatively resistant to insulin, and if
  insulin is administered to such patients, relatively
  large amounts are necessary to make much impression
  on the hyperglycemia. Therefore, the amount of
  insulin required to control diabetes is not an index
  of the severity. I would like to quote from Duncan's
  Diseases of Metabolism, third edition, page 636: `A
  diabetic state in an obese person must be mild, else
  he would not maintain his obesity.'
    "* * * His renal function test as indicated above
  is quite satisfactory, despite a moderate amount of
  proteuria. This latter finding may be the result of
  his hypertension and prolonged diabetes, which has
  been poorly controlled. It is difficult to make a
  statement as to the degree of disability that his
  diabetic status has incurred, as his main problem has
  been that of obesity, and certainly the diabetes, and
  likewise the disability would greatly improve if he
  were to lose weight. His prognosis of course will
  depend upon his future dietary control."

Dr. Boulden indicated that before dismissing the claimant, he gave him a diet prescription for a 1200 calorie diabetic diet, and advised him that maintaining the diet was extremely important if his diabetes was ever to improve. The claimant was told that eventually his insulin dosage would be reduced, and in all probability he would be able to do without insulin if he were ever to obtain an ideal weight, ranging between 179 to 196 pounds, requiring a weight loss ...

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