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January 19, 1962


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 Secretary.

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 ...

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