The opinion of the court was delivered by: John E. Miller, Chief Judge.
This is an action to review a decision of the defendant
Secretary denying the plaintiff's application for disability
benefits under the Social Security Act, 42 U.S.C.A. § 401 et seq.
Plaintiff filed his application March 20, 1962, which was
subsequently denied, and the plaintiff seeks to set aside the
defendant Secretary's decision, contending that it is not
supported by substantial evidence. The case is now before the
court on cross motions for summary judgment, together with briefs
submitted by the parties in support of their respective
contentions. The pleadings establish that the plaintiff last met
the earnings requirements June 30, 1951.
The administrative transcript discloses that the plaintiff was
last employed in the fall of 1948, although his application for
benefits was not filed until March 20, 1962. Although there is a
lapse of nearly 14 years between the time of his last employment
and the date of filing his application for disability benefits,
the defendant Secretary does not contend that the plaintiff is
barred from pursuing his application either by statute or
administrative regulations. The record further discloses that the
plaintiff was not apprised of his possible disability benefits
under the Social Security Act until the early part of 1962, and
for that reason did not file earlier.
The certified administrative transcript indicates the
following: The plaintiff was born March 24, 1904, and is a
resident of Mulberry, Arkansas. He has lived in Mulberry and
vicinity all of his adult life and is married but has no
children. His occupation has been that of structural steel
worker, chiefly employed by the American Bridge Company, a
subsidiary of U.S. Steel Corporation. His work activities have
consisted entirely of manual labor in the construction of large
bridges in different parts of the country. Sometime in 1948 he
began to suffer severe loss of his hearing and has not been
regularly employed since because of the ailment.
The plaintiff was examined March 20, 1962, by Dr. O.J. Kirksey
of Mulberry, Arkansas, and in a letter report of that date Dr.
Kirksey stated that the plaintiff had subjective symptoms of
deafness and headaches, and the doctor observed a perforation of
the right eardrum. He further recommended that the plaintiff be
examined by a specialist.
On May 11, 1962, Dr. Charles S. Lane, Jr., an otolaryngologist
(ear and throat specialist), of Fort Smith, Arkansas, examined
the plaintiff, and in his letter to the Arkansas State Department
of OASI stated:
"We performed an audiogram, a copy of which I am
enclosing. You will note from this audiogram that he
has a severe mixed type deafness and because of this
I doubt that there would be any chance of getting an
appreciable improvement in his hearing with surgery.
Because of the severe chronic nature of the disease
he has in his middle ears, however, I do feel that
surgery on his ears should be performed. Because of
the visible cholesteatoma in his left ear, even
though this is the best hearing ear, I feel it should
be operated first. If possible, a tympanoplasty
procedure could be done, which would offer him the
best chance of preserving what hearing he now has in
Dr. Lane, in a second letter to the State OASI dated May 23,
1962, stated than an air conduction hearing aid might be of some
help to the plaintiff's hearing in his left ear.
Plaintiff was also examined by Dr. S.Z. Faier of the Holt-Krock
Clinic of Fort Smith, Arkansas, on July 30, 1962. Dr. Faier in a
letter dated August 17, 1962, stated that plaintiff had a total
loss of hearing in the right ear and marked impairment of hearing
in the left ear, (plaintiff could hear loud voices in his left
ear at 18 inches). With respect to the indefinite duration or
permanence of the plaintiff's condition and what could be done to
alleviate it, Dr. Faier stated:
"Any surgery that would be considered would be of
the radical mastoidectomy type. Surgery would be
indicated only because of the pathology present. I
doubt very much if there would be any improvement in
hearing in the left ear, which is the better ear.
There would be no possibility of improvement in the
hearing of the right ear. It is my understanding that
this patient has not been helped with a hearing aid."
On September 27, 1962, the plaintiff was given additional
examination at the Holt-Krock Clinic by Dr. Claud S. Heffington,
who observed the same total loss of hearing in the right ear and
severe loss of hearing in the left ear. Dr. Heffington in his
letter report of that date stated that in order for the plaintiff
to understand attempted oral communication with him, Dr.
Heffington removed his stethoscope and placed the ear piece in
the plaintiff's ears and spoke into the bell, but even that was
not very satisfactory.
After the initial denial of benefits, the plaintiff was given a
hearing by the defendant's hearing examiner on August 8, 1963.
The hearing examiner in his report to the plaintiff on October
15, 1963, was of the opinion that the plaintiff was not entitled
to a period of disability or disability benefits in that the
plaintiff "has not met the burden of establishing that he
suffered from a medically determinable impairment of such
severity, as early as June 30, 1951 (when he last met the
earnings requirements), to preclude engagement in any substantial
With respect to the plaintiff's inability to hear at the time
of his appearance before the hearing examiner, the letter report
of October 15, 1963, discloses the following:
"At the hearing, following a brief discussion, it was
apparent that claimant was not capable of testifying
in that he was unable to hear the questions posed,
even with the aid of his wife. Claimant's attorney
and the hearing examiner recognized this and agreed
that the testimony of claimant might be secured by
interrogatories subsequent to the hearing."
The defendant Secretary's determination that this condition did
not exist on or before June 30, 1951, the time the plaintiff last
met the earnings requirements, must be affirmed if there is
substantial evidence in the administrative record to support it.
Celebrezze v. Bolas, (8 Cir. 1963) 316 F.2d 498; Lewis v.
Flemming, (E.D.Ark. 1959) 176 F. Supp. 872; Hawkins v.
Celebrezze, (W.D.Ark. 1962) 210 F. Supp. 341.
In support of the plaintiff's contention that this impairment
existed at the time he last met the earnings requirements, and in
addition to the objective medical evidence, the plaintiff's wife,
Mrs. Lucille Kuykendall, inter alia, testified, beginning at page
57 of the transcript:
"Q. How does his hearing compare now with what it was
in about 1946 and ...