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SEBBY v. FLEMMING

May 7, 1960

LLOYD G. SEBBY, PLAINTIFF,
v.
ARTHUR S. FLEMMING, SECRETARY OF HEALTH, EDUCATION AND WELFARE, DEFENDANT.



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.

The plaintiff applied for a Social Security account in 1936 and came under coverage in 1937. He worked constantly thereafter for 69 consecutive quarters until March 1954. At that time the plaintiff was suffering from tachycardia and nervousness, so he quit his job and moved to a small farm in Minnesota. Sebby returned to the cattle buying business on a part-time basis about a year later, and continued this activity until December 1955 when he suffered a severe heart attack. Since that time he has not actively worked.

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 attacks.

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 condition.

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. Dickinson states:

    "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
  engage ...

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