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KUYKENDALL v. CELEBREZZE

August 3, 1964

GREEN B. KUYKENDALL, PLAINTIFF,
v.
ANTHONY J. CELEBREZZE, SECRETARY OF HEALTH, EDUCATION AND WELFARE, UNITED STATES OF AMERICA, DEFENDANT.



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:

    "Examination of his ears revealed a large inferior
  central perforation of the right ear drum. No pus was
  seen in the right middle ear. Examination of the left
  ear revealed a very large perforation involving the
  anterior inferior, the posterior inferior and the
  posterior superior

  quadrants. Visible in the left middle ear is what
  appears to be a cholesteatoma cyst with slight
  purulent material present.
    "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
  the ear."

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 gainful activity."

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 ...

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