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
"* * * 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
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
The pertinent facts in this case are not in dispute. The
plaintiff was born August 18, 1902, at Paris, Texas. His formal
education consisted of completion of the fourth grade, and since
leaving school, he acquired skill as a carpenter.
During his work life, he has been employed as a carpenter by
various contractors, and at times has worked in that trade at
factories. He was last employed by the King Construction Company
of Texarkana, Arkansas, in December 1958. This employment was
terminated when he became unable to perform the work due to his
physical condition. During his lifetime Morris has undergone some
seven operations, primarily for a hernia and adhesions. He first
experienced trouble with a hernia in 1930 and was first operated
in 1933. A year after the operation the hernia broke through, and
in 1945 he underwent a second operation. Between 1933 and 1945
plaintiff wore a truss nearly all the time but continued working.
In June 1959 he underwent a third operation for the purpose of
relieving the adhesions and experienced some temporary relief,
but soon began having the same trouble. He wears a large
abdominal belt which eases his discomfort somewhat. He complains
that he is in pain all the time. Morris has applied for
unemployment compensation but his application was denied, the
agency holding that he was not physically able to work.
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
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. ...