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
"* * * 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.
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,
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
"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
"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
"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 ...