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November 21, 1962


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

This is an action by the plaintiff, Clarence L. Hawkins, 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)(1), 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).

On September 26, 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 November 16, 1961, and on November 30, 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 March 5, 1962, the Appeals Council denied plaintiff's request for review. The decision of the hearing examiner therefore became the final decision of the defendant Secretary.

The plaintiff filed the instant action on May 3, 1962, 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 both sides 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 February 16, 1921, at Fouke, Arkansas. His formal education consisted of completion of the eighth grade. During his work history he has received special training and acquired skill as a meat cutter. He was first employed on a farm until he was 17 or 18 years old. He then worked in a planer mill where he drove a truck, ran a planer and stacked lumber for a period of about 18 months. In 1942 he was inducted into the U.S. Army, and he pursued this military career until 1951. During this time he received special training as a butcher in an Army meat-cutting school, and he was taught to cook and bake in an Army food-service school. Upon separation from the military, he was employed as a truck driver and route salesman for the Myers Bakery Company for about three or four months. During the following 30 months, plaintiff was employed by two meat-packing companies, the D & W Packing Company and the Wilson Packing Company. His job with these two employers consisted of cutting up wholesale meat and making casings for sausages. Following this period, the plaintiff was employed by the Iowa Manufacturing Company for ten or eleven months, and his job consisted of installing bearings on heavy road equipment. The following year plaintiff was employed at several locations at two of which he drove a truck as a route salesman, and at another he was employed as a tester for milk coolers. His last employment was by A.D. Snipper as a butcher preparing both wholesale and retail cuts of meat. He stopped work about July 15, 1959, with the announced purpose of going into the construction business with his brother, which did not materialize. A few months prior to this date he had been bothered by periodic popping noises in his left ear accompanied by a feeling of dizziness, but these were slight and soon passed away.

During August 1959 plaintiff suffered his first serious spell of what he described as a "popping" in his left ear which resembled radio static, and it caused him to lose his sense of balance and to become nauseated. This continued for a day or two during which he could not even retain water. He first consulted a Dr. Calhoun, who made a general examination of the plaintiff and prescribed pills for him to take. Plaintiff failed to improve and he became so ill that he could not walk and he lost control of his legs, which felt rubbery and limp and caused him to fall whenever he would try to stand.

In September 1959 plaintiff was examined by a Dr. Williams, who found the plaintiff had an inner ear disturbance in his left ear and prescribed the same type of pills that had been prescribed by Dr. Calhoun.

Two or three days after seeing Dr. Williams, the plaintiff consulted Dr. William Hibbitts. After hearing the plaintiff's history of his illness and giving him a general checkup, the doctor diagnosed the plaintiff's condition as an inner ear trouble. The doctor advised a series of tests which could be made less expensively at the Veterans Administration Hospital at Shreveport, La.

The plaintiff entered the VA Hospital at Shreveport, La., on November 30, 1959, and following a complete examination, including blood tests, examination of the eyes and ears, x-rays of his head, plaintiff was given pills or capsules to take. The diagnosis was much the same as that of Dr. Hibbitts, and he was discharged on December 18, 1959.

The plaintiff returned home but he suffered a severe recurrence of the symptoms a few days after New Year's Day when he became very dizzy while walking toward the front door and blacked out and fell through the door. When he regained consciousness, he was on his bed and Dr. Hibbitts had been called. The doctor, suspecting a brain tumor, advised the plaintiff to return to the VA Hospital at Shreveport, which he did on January 5, 1960, and remained there for four months. Plaintiff was prescribed pills to take and the left side of his nose was operated on to allow passage of more air. This operation helped him breathe through his nose, but he still had ear noises and complained of nausea. Plaintiff was placed on a salt-free diet to help his stomach condition and to lose weight, and as for his head noises, the doctors advised him that he would just have to become accustomed to them. During the plaintiff's stay at the Shreveport VA Hospital, he was called to the Little Rock VA Hospital relative to a Veterans Administration pension, where he was given a thorough physical examination, including x-rays of the head, arms and a heart check-up.

Several months after the plaintiff had returned from the Shreveport VA Hospital, the plaintiff resumed his treatment by Dr. Hibbitts, who advised the plaintiff to return to the VA Hospital at Little Rock for a spinal tap and other special tests to determine whether or not the plaintiff had a brain tumor. Plaintiff was admitted at the Little Rock VA Hospital on March 13, 1961, and he remained there for eleven days. At that time he was taken off his salt-free diet in an effort to check on its effect. After a day and a night of this diet, the plaintiff began to vomit and by the fifth day he was still suffering from nausea. The doctor could find no cause, and the previous medication (Dramamine) was resumed. Various tests were made, including electroencephalogram, blood tests, x-rays of the head, chest, legs and back, and a spinal tap was performed. Plaintiff was informed that the tests revealed inner ear trouble but no brain tumor, and an air encephalogram was suggested, but the plaintiff felt that since the doctor had told him that the chance of it showing the cause of his illness was "one in a million," that it should not be done because he was afraid of the risk.

These medical reports were forwarded to Dr. Hibbitts who studied the reports and told plaintiff that the only thing he knew to do was to continue with the pills as before and to try new things as he heard of them, as he knew of no present cure for this ailment.

Plaintiff's present condition is summarized by the hearing examiner as follows:

    "At present claimant has dizziness, sometimes two
  or three times a day and sometimes two or three times
  a week. The claimant stated that six days before the
  hearing he had attempted to rake the yard and fell;
  he did not know how long he had been unconscious but
  he had to hold to the steps and house to get inside
  and lie down. Sometimes it takes about thirty minutes
  and sometimes two or three hours for the dizziness to
  leave after claimant lies down. Claimant states he
  still hears the same tapping and popping noises in
  both ears now. Claimant is still on salt-free diet
  which is partly for weight reducing purposes. He said
  he uses a cane when he gets real bad; the last time
  was about three months before the hearing. The
  claimant said he just sits around the house; does
  very little walking and only if someone is with him.
  He has not driven a car in the last six months and
  prior to that time for approximately a year and a
  half he had only driven when someone was with him.
  Dr. Eschenbrenner and Dr. Hibbitts had both advised
  him against driving."

The medical report of Dr. Hibbitts dated September 27, 1960, indicates August 1959 as the date of onset of the present illness with symptoms of dizziness and nausea on exertion. The diagnosis was Meniere's disease, labyrinthitis, and indicated poor response to therapy. The report states that the plaintiff could only remain up and around for short intervals. Another report by the same doctor dated April 7, 1961, states that plaintiff's subjective symptoms are dizziness and weakness, that electrocardiogram was normal, and laboratory tests are negative, that plaintiff's cardiac, respiratory and neurological conditions are normal, and it gives a diagnosis of severe labyrinthitis and states that plaintiff has shown no results from treatment and is totally disabled.

Dorland's Medical Dictionary, 23rd Ed., defines Meniere's disease or syndrome as dizziness, tinnitus (ear noise) characterized by popping and cracking sounds, and dizziness occurring in association with nonsuppurative (non-pus producing) disease of the labyrinth (inner ear). Labyrinthitis is defined as inflammation of the labyrinth or inner ear.

The reports from the Shreveport VA Hospital dated February 4, 1960, and April 5, 1960, record plaintiff's two confinements in this hospital. The first report indicates that the plaintiff was placed on a low-salt diet, given Dramamine and nicotinic acid. An audiogram was performed, his symptoms subsided, and he was discharged on December 18, 1959. The diagnosis was: "acute labyrinthitis, marked treated and improved."

The second report indicated that the plaintiff was readmitted on January 5, 1960, with a diagnosis of acute labyrinthitis, that he had weakness and could not stand up. Besides his nose trouble, plaintiff was observed to have some loss of hearing in the left ear, but the labyrinthitis and dizziness were not entirely confirmed. The examining doctor stated that the plaintiff was able to drive a car and that he observed the plaintiff walking around with no apparent difficulty with reference to his labyrinthitis. The latter report listed a diagnosis of (1) deafness, left, mild, conductive in type; treated, improved, (2) allergic rhinitis; treated, improved, (3) obesity, treated, improved.

A summary medical report from the VA Hospital in Little Rock dated March 24, 1961, states that the plaintiff was admitted on March 13, 1961, because of trouble with his left ear, including 18 or 19 months period of chronic roar in that ear with decrease in hearing perception and also attacks of unsteadiness on his feet with nausea and vomiting. Plaintiff's medical history reveals many illnesses, including a skull fracture in 1943 and other trauma. The ear consultant found decreased hearing in the left ear and confirmed a diagnosis of Meniere's syndrome. The neurosurgeon found no definite objective neurological ...

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