The opinion of the court was delivered by: John E. Miller, Chief Judge.
This is an action by the plaintiff, Lloyd G. Sebby, to
review a final decision of the Secretary of Health, Education
and Welfare denying his claim for a period of disability and
disability benefits as provided by the Social Security Act, as
amended, 42 U.S.C.A. § 301 et seq. The plaintiff filed his
original request for benefits on September 3, 1957. In due
course his claim was administratively denied, and at the
plaintiff's request a hearing was held on July 30, 1958, before
a Referee. The Referee filed his opinion on September 26, 1958,
denying the plaintiff's claim, and in due time this opinion
became the final decision of the defendant. It is this decision
the court is now called upon to review under the provisions of
42 U.S.C.A. § 405(g).
The plaintiff filed a motion for summary judgment on March
23, 1960. The defendant likewise filed a motion for summary
judgment on April 19, 1960. Briefs have been received from
each side and considered by the court, and the case is now
ready for disposition.
The basic facts are not in dispute. Plaintiff was born on a
farm in Illinois on November 25, 1900. He attended high school
through the 10th grade and lived and worked on the farm until
1935. He then worked for the Firestone Tire and Rubber Company
for about a year as recapper. In 1936 he accepted a position
with a livestock commission company as a yard man, and later
became a cattle salesman. Sebby followed his occupation the
rest of his active life, working primarily in the stockyards
at Omaha, Nebraska, and Sioux City, Iowa.
It is undisputed that plaintiff meets the earning
requirements of the Act through the quarter ending September
30, 1956. His disability must be determined, therefore, as of
that date and of the date of his application.
At the present time the plaintiff resides with his wife and
daughter on a 55-acre farm near Gillham, Arkansas. Some
attempt has been made to raise chickens on the farm but
apparently without success. The plaintiff's wife does most of
the work involved in the chicken business. A few head of
cattle are also allowed to graze on the farm. The plaintiff
attempts to do routine household tasks, such as mowing the
lawn, but is forced to quit after a short time. He has attacks
on the average of one per week with each attack lasting about
three hours. The plaintiff describes his attacks as having the
sensation of his heart "jumping out of its socket." He
experiences a shortness of breath, perspires profusely, and in
the more severe attacks loses consciousness. He was
hospitalized in July 1957 following one of his more severe
The plaintiff was referred to the Arkansas State Vocational
Rehabilitation Agency for possible rehabilitation training. On
September 23, 1957, the plaintiff's application was denied due
to his age.
Statements from various friends and neighbors were
introduced into evidence and describe his heart condition. The
persons making the statements all agreed that the plaintiff is
not physically able to work. The Board of Education of the
Gillham, Arkansas, public schools considered hiring the
plaintiff as a custodian, but did not do so due to his heart
Medical reports from two doctors were introduced by the
plaintiff. Dr. Pat Cmeyla of Sioux City, Iowa, treated the
plaintiff at various times between 1947 and 1957. According to
Dr. Cmeyla's report dated September 6, 1957, the plaintiff is
suffering from paroxysmal tachycardia, and as a result became
unable to work in 1955. He classifies the plaintiff's
functional capacity as class 3 (marked limitation). Dr. Cmeyla
notes that the attacks are increasing in frequency and in
severity, and that it is not known when optimum improvement
can be expected. He finally states that because of the nature
of the plaintiff's difficulty, he is totally incapacitated.
Dr. R.B. Dickinson of DeQueen, Arkansas, first examined the
plaintiff in July 1957. According to his report of September
4, 1957, the plaintiff is suffering from paroxysmal
tachycardia and that any improvement was indefinite. The
report states that the plaintiff is confined to his house at
frequent intervals, and that he has advised him not to work.
Dr. Dickinson classifies the plaintiff's functional capacity
as class 3 (marked limitation), and states that the plaintiff
became unable to work in December 1955. He states that in his
opinion the plaintiff is totally disabled.
In a subsequent letter report, dated November 22, 1957, Dr.
"Mr. Sebby has been under my care since July
1957. I have seen the patient frequently. He has
suffered from severe episodes of Paroxysmal
Tachycardia, which is uncontrolled by
barbiturates, pronestyl, quinidene and strict
limitation of activity.
"It is my opinion that he is in a cardiac
condition such as to render him 100% unable to