The opinion of the court was delivered by: John E. Miller, Chief Judge.
This is an action by the plaintiff, Edward L. Blanscet, 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 February 4, 1960, 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 reconsideration of said denial. Upon
reconsideration, the Bureau of Old-Age and Survivors Insurance
affirmed the denial of the applications, and the plaintiff
thereafter requested a hearing before a hearing examiner. The
hearing was conducted on January 17, 1961, and on January 27,
1961, the hearing examiner filed his decision denying the
plaintiff's claim. Thereafter the plaintiff requested the
Appeals Council to review the hearing examiner's decision, and
on April 10, 1961, the Appeals Council denied plaintiff's
request for review. The decision of the hearing examiner,
therefore, became the final decision of the defendant
Plaintiff filed the instant action in this court on June 7,
1961, and in due time the defendant filed his answer. The case
is now before the court on cross motions for summary judgment.
Briefs have been received from each side in support of their
respective contentions and have been considered by the court.
The pertinent facts in this case are not in dispute. The
plaintiff was born August 5, 1905, at Ozark, Arkansas. His
formal education consisted of completion of the eighth grade,
and since leaving school he first worked on his parents' farm
until he was 21 years old, and then went to work as a coal
miner. During his work life he has been employed as a coal
miner by various companies, and the two years immediately
prior to his claimed date of disability, he worked in his own
coal mine, and besides working as a miner, he has also farmed.
While working in the mines, he worked underground. He was last
employed in working his own coal mine in January 1959. This
employment was terminated when he became unable to perform the
work due to his physical condition, consisting of a pain in
his low back radiating down his left leg. He first experienced
trouble with this condition in 1940, and he denies any injury.
Since that date the pain in his back and left leg reoccurred
at intervals lasting four to six weeks. However, the back and
leg pains, which afflicted him in January 1959, have not left
him as the prior attacks had done. He complains that he is in
pain all of the time, and the pain is increased whenever he
uses his left leg in walking, standing or lifting.
The earnings record reflects that the plaintiff last met the
earnings requirements under the provisions of the 1958
amendments to the Social Security Act through the calendar
quarter ending September 1959.
A medical report, dated February 6, 1960, and submitted by
Dr. T.M. King, a chiropractor, indicates that the plaintiff's
present illness began in 1945, and that plaintiff became
unable to work in December of 1958; that the subjective
symptoms were pain and distress across the lumbosacral region,
radiating into the left hip with pain and distress in the left
leg from the hip to the knee; that the bones in the leg ached
and muscles had lost normal sensation leaving a paralyzed
feeling. Objective findings showed vertebral subluxation of
lower lumbar vertebrae. There appeared to be a slight
enlargement of the bone structure of the left hip, and at
times there was considerable limitation of movement of the
left leg raise. Plaintiff was given a total of 22 chiropractic
treatments, the first treatment being in November of 1959 and
the last on February 5, 1960. The report indicates that the
plaintiff's response to the treatments was not very good. The
report further indicates that the plaintiff is making no
progress; that he is not able to work and is not to be on his
feet very long at a time without suffering from severe aches
and pains. On February 6, 1961, Dr. King certified that he
made an examination of the plaintiff on the same date and
found no noticeable change in his condition since the date of
the last report.
The medical report of February 9, 1960, was submitted by Dr.
David Gibbons of Ozark, Arkansas, which shows that the
plaintiff's present illness or injury occurred about 15 years
ago. Subjective symptoms again were shown to be pain in the
left leg and partial paralysis of the left leg. Objective
findings showed the left leg to be slightly smaller than the
right leg; reflexes were sluggish and sensory changes were
evident over the leg. The diagnosis made was sciatica. The
treatment was corticosteroid therapy, but there was poor
response. The report indicates that the specific restrictions
on the plaintiff's activities are walking and lifting.
A medical report, dated June 25, 1960, submitted by Dr.
Charles M. Smith, of Paris, Arkansas, shows substantially the
same information previously set forth with a further diagnosis
of a herniated disc.
On September 13, 1960, the plaintiff was examined by Dr.
William I. Porter of Little Rock, Arkansas, a neurosurgeon.
This special examination revealed that the plaintiff's blood
pressure was 130/60, and the heart tones were normal. The
neurological examination pertaining to the cranial nerves and
to both upper extremities was negative and noncontributory.
The plaintiff was observed to walk with a limp, favoring the
left leg. There was no actual muscle weakness found in either
lower extremity. The vertebral column was straight without any
list or muscle spasm. He was able to bend his back only an
estimated 50 percent of the normal range. Both patellar
reflexes were equally active. The left Achilles' reflex was
absent, while the right was normally active. There was no
actual loss or diminished area of sensory disturbance in
either leg. There was no measurable atrophy in either thigh or
calf muscle groups. There was no sign of lumbar nerve root
compression on Lasegue's straight-leg-raise test. The
diagnosis was that the plaintiff is
suffering from a so-called chronic recurrent disc protrusion,
probably at the lumbosacral interspace on the left side, and
there are confirmatory neurological signs to indicate this.
The report further indicates that a spinal myelogram would
clarify the diagnosis, and, if a sizable disc defect is
demonstrated on the myelogram, then in all probability the
plaintiff would benefit from surgery. This report does not
indicate in what manner the plaintiff's activities would be
restricted if the myelogram should demonstrate said sizable
disc defect, but at the time of the examination, the
plaintiff's activities were restricted to such an extent as to
prevent him from carrying out extremely heavy work or work
that would cause heavy strain to the lower back.
The burden of proof 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. Morris v.
Ribicoff, 194 F. Supp. 841 (W.D.Ark. 1961); Harmon v. Ribicoff,
192 F. Supp. 743 (W.D.Ark. 1961). The court's function in a
review of this nature was succinctly summarized in Lewis v.
Flemming, 176 F. Supp. 872, at page 874 (E.D.Ark. 1959), when
the court said:
"In an action of this kind, judicial review
should go no further than to determine whether
the findings made by the administrative fact
finder are supported by substantial evidence and
whether applicable principles of law have been
correctly applied to the facts. Arbitrary or
capricious action must be set aside, and, of
course, a finding or conclusion based upon an
erroneous view of the law cannot be sustained."
The meaning of the term "substantial evidence" and the
application of that term by the court is, of course, of
paramount importance in a determination of this case. The
meaning and application of the "substantial evidence" test in
Social Security cases have been subject to discussion in
several recent cases. In Aaron v. Fleming, 168 F. Supp. 291
(N.D.Ala. 1958), Circuit Judge Rives, sitting by assignment,
adopted Chief Justice Hughes' definition of substantial
evidence, as follows:
"Substantial evidence is more than a mere
scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to
support a conclusion."
In Corn v. Flemming, 184 F. Supp. 490 (S.D.Fla. 1960), Judge
Whitehurst adopted Judge Rives' definition of substantial
evidence in the ...