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June 12, 1961


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

This is an action by the plaintiff, Jasper J. Morris, 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 January 7, 1959, plaintiff filed his application to establish a period of disability and his application for receipt of disability insurance benefits. The applications were subsequently denied, and the plaintiff thereafter requested a hearing before a hearing examiner. The hearing was conducted on April 7, 1960, and on April 28, 1960, the hearing examiner filed his decision denying the plaintiff's claims. Thereafter the plaintiff requested the Appeals Council to review the hearing examiner's decision, and on September 15, 1960, the Appeals Council denied plaintiff's request for review. The decision of the hearing examiner, therefore, became the final decision of the defendant Secretary.

Plaintiff filed the instant action in this court on November 12, 1960, and in due time the defendant filed his answer. The case is now before the court on defendant's motion for summary judgment. A brief has been received from the defendant Secretary in support of his contentions, but counsel for the plaintiff has failed to file a brief within the 30-day period allowed or within the 20-day extension. Therefore, the court must decide the case without benefit of a brief in support of the plaintiff's position.

For the past three years Morris has also experienced a heart condition which consists of shortness of breath, pain in the chest, radiating down the entire left arm. His doctor prescribed medication which he takes when he feels the pain coming on. In addition, he complains of chronic constipation. His diet consists mainly of milk, bread and light foods. His normal weight is 167 but presently he weighs only 158.

The plaintiff's appetite is fairly good but he does not sleep well. He experiences shortness of breath after exercise and his hands and ankles swell.

Morris lives on a small farm some 25 miles from Texarkana with his wife and four minor children. His wife cultivates a garden with the assistance of one of his sons. Morris helps in the garden when he is able. He is able to drive a standard transmission automobile, although he states it bothers him. He admits that he goes fishing once in a while, but spends most of his time sitting around the home reading his children's school books.

Several months before the hearing Morris tried to haul a load of wood for a neighbor, but was unable to complete the job when blood started seeping from an adhesion in his side. This was observed by the neighbor, W.L. Conley.

A medical report dated March 21, 1959, and submitted by Dr. Harry E. Murry of Texarkana, indicates that the plaintiff has had an illness off and on for the last fifteen years and that he became unable to work January 31, 1959. His symptoms were complaint of severe pain and indigestion, R.L., when he works. The report notes that the plaintiff was ambulatory. The diagnosis made was adhesions. The treatment was heat and analgesics. The progress was noted to vary. The heart was found to be good. The blood pressure was 140/80. The physical finding was old post-operative hernia with probable adhesions.

A medical report of August 18, 1959, submitted by plaintiff's personal physician, Dr. C.V. Bintliff of Texarkana, describes the plaintiff as being five feet, nine inches, and weighing 154 pounds, stating that the illness began in December of 1958. The subjective symptoms were pain in right abdomen, nausea and constipation. The objective findings were hernia, ventral and inguinal. Scar was noted on the right abdomen, with thin abdominal wall. It was noted that the claimant had surgery in June of 1959. Also, it was noted that Morris' condition was not static and that he should do no heavy work, and that, in the doctor's opinion, he was physically unable to do any work for which he is trained.

On November 17, 1959, and again on April 7, 1960, Dr. Bintliff reported that due to plaintiff's age, heart condition, and hernia, in his opinion the plaintiff was totally and permanently disabled. No further surgery was recommended, and limited activity was prescribed as the best treatment.

In January 1960 Morris was examined by Dr. Alastair D. Hall of Little Rock, at the request of the Social Security Administration. In reporting the results of his examination, Dr. Hall's report reflects that the plaintiff has suffered from constipation since 1932 and that he almost always has to take a laxative. He denied any chest pains, but stated that he had some shortness of breath. The physical examination showed the blood pressure to be 170/100, the pulse rate 76, respiration 20. The ENT examination was not remarkable. The pupils were found to react equally to 1 & a. The fundi was found to be normal. The heart was not enlarged to percussion, and there were no murmurs or thrills. A2 was slightly accentuated. The pulse was found to be regular and of good volume. The lungs were clear to percussion and auscultation. There was no edema or varicosities. The EKG showed changes of mild ischemia. The diagnosis was scars from previous surgery which appeared to be well healed. It was noted that there was considerable functional overlay in connection with previous surgery and bowel symptoms and mild hypertensive vascular disease. Dr. Hall placed the plaintiff in Class II, noting slight limitation of activity. He stated that he did not believe that Morris was disabled from engaging in gainful employment on the basis of hernia or cardio-vascular disease.

The burden of proof before the hearing examiner and in the instant proceeding is upon the plaintiff. Not only are the findings of fact made by the hearing examiner, if supported by substantial evidence, conclusive, but a majority of courts also extend the finality of the hearing examiner's findings to inferences and conclusions which he draws from the evidence if there is substantial basis for the conclusion. The hearing examiner's conclusions of law, however, are not binding upon the court, although they are entitled to great weight. In reviewing the decision of the hearing examiner, this court must not abdicate its conventional function. Blevins v. Fleming (Flemming), D.C.W.D.Ark. 1960, 180 F. Supp. 287, 289; Fuller v. Folsom, D.C.W.D. Ark. ...

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