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HARMON v. RIBICOFF

April 10, 1961

AMIL A. HARMON, PLAINTIFF,
v.
ABRAHAM A. RIBICOFF, 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, Amil A. Harmon, to review a final decision of the defendant Secretary, denying the plaintiff's application for a period of disability and disability benefits, as authorized by the Social Security Act, as amended, 42 U.S.C.A. §§ 416(i), 423. This court has jurisdiction of the action pursuant to Sec. 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g). The applicable section of the statute provides:

    "* * * The court shall have power to enter, upon
  the pleadings and transcript of the record, a
  judgment affirming, modifying, or reversing the
  decision of the Secretary, with or without remanding
  the cause for a rehearing. The findings of the
  Secretary as to any fact, if supported by substantial
  evidence, shall be conclusive, * * *."

On October 1, 1957, the plaintiff filed his applications to establish disability and for disability insurance benefits. The applications were subsequently denied, and the plaintiff thereafter requested a hearing before a Referee. The hearing was conducted on May 5, 1959, and on October 21, 1959, the hearing examiner filed his decision denying the plaintiff's claims. The plaintiff requested the Appeals Council to review the Referee's decision, and on March 17, 1960, a hearing was held before the Appeals Council. The decision of the Appeals Council was filed May 5, 1960, affirming the decision of the hearing examiner. Plaintiff filed the instant action in this court on July 5, 1960, and in due time the defendant filed his answer. The case is now before the court on defendant's motion for summary judgment. Briefs have been received from each side in support of their respective contentions and have been considered by the court.

The plaintiff was born in Johnson County, Arkansas, on July 27, 1901. His formal education consisted of completion of the 7th grade in a rural school. Since leaving school, he acquired no special skills or training. He has spent most of his life working in and around sawmills or as a farm laborer. At the present time he lives with his wife on a 25acre farm in Johnson County, Arkansas. Prior to the spring of 1956 he had been employed at the Ozark Hardwood Company in Clarksville, Arkansas, for three or four years.

In May 1956 the plaintiff quit his employment to enter a hospital where he underwent surgery for the removal of his gall bladder. He was hospitalized for a period of 72 days, undergoing a total of three operations. The plaintiff had complained of stomach trouble for a year prior to his operations. Following his period of hospitalization, Harmon was confined to his home most of the time. He complains of constant pain in his stomach, is unable to keep his food down, and has, therefore, lost much of his strength. His activities around the house are primarily limited to lying in bed, sitting in chairs, and occasional short walks for exercise. He does not assist with the housework in any way, and does not drive an automobile. Harmon also complains of almost a total loss of sight in one eye due to a cataract, headaches, a double hernia, kidney ailments, a heart condition, and arthritis.

Plaintiff has submitted medical reports from doctors who treated him during his illness. The report of Dr. Robert H. Manley of Clarksville, dated October 1, 1957, reflects that the plaintiff had a ruptured peptic ulcer and that he had been operated on three times in an effort to correct this condition, but that only fair results had been obtained; that he has trouble retaining food and has suffered a marked loss of weight and physical weakness. At that time Dr. Manley noted that there was no improvement in sight for the plaintiff, that there was no surgery indicated that would help, and that he would never be able to work because his stomach would not retain enough food to maintain his strength. A report from Dr. George L. Hardgrave of Clarksville, Arkansas, also dated October 1, 1957, likewise reflects the plaintiff's stomach condition. In this report Dr. Hardgrave also notes a heart condition. However, this was not noted in a subsequent joint medical report of Drs. Hardgrave and Manley. Dr. Hardgrave in his October 1, 1957, report states: "This man is totally and permanently disabled to work."

A subsequent joint medical report from Drs. Hardgrave and Manley, dated April 28, 1958, again reflects that the plaintiff has a severe ulcerated stomach, and that in their opinion he "is not and never will be able to do any kind of work."

A letter report from Dr. John D. Olson of the Holt-Krock Clinic of Fort Smith, Arkansas, dated May 27, 1958, discusses the various operations which the plaintiff has undergone, and reflects that the plaintiff is still suffering from a duodenal ulcer, and that unless medical therapy does not heal this ulcer, that further surgery should be considered.

On March 9, 1959, Dr. James M. Kolb of Little Rock submitted a confidential medical report to the Arkansas Department of Public Welfare. This report was apparently made at the request of the State Welfare Agency. Dr. Kolb diagnosed the plaintiff's condition as (1) bilateral hernia inguinal, complete reduceable; (2) defective vision in left eye, light perception in right eye only; (3) VHD, mitral insufficiency with decompensation and hypotension; and (4) gastro-enterostomy (history). Dr. Kolb advised that the following physical capacities of the plaintiff should be limited or avoided: stooping, kneeling, lifting, reaching, pushing, pulling, and other.

Following the hearing before the Referee, the Social Security Administration arranged for the plaintiff to be examined by Dr. Jerome S. Levy of Little Rock. Dr. Levy's report concluded with the following:

    "Conclusions: The x-ray examination of the chest
  does not show any cardiac enlargement, and does not
  show any evidence of intrathoracic pathology. The
  heart appears to be normal in its size and contours,
  and the lung fields do not show any evidence of
  infiltrative, exudative or neoplastic disease.
    "The KUB was essentially negative, showing
  hypertrophic changes in the bodies of the lumbar
  vertebrae.
    "The barium enema x-ray examination also failed to
  show any evidence of organic disease involving the
  colon. On both the KUB film and the barium enema
  study, there was a suggestion of enlargement of the
  liver.
    "The x-ray examination of the upper
  gastro-intestinal tract showed the retained residual
  gastric secretions, markedly and constantly deformed
  duodenal cap which was irritable, tender and ...

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