Bean v. Secretary of Health, Education & Welfare

374 F. Supp. 336, 1974 U.S. Dist. LEXIS 9304
CourtDistrict Court, D. Kansas
DecidedMarch 26, 1974
DocketCiv. A. No. W-5304
StatusPublished
Cited by3 cases

This text of 374 F. Supp. 336 (Bean v. Secretary of Health, Education & Welfare) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bean v. Secretary of Health, Education & Welfare, 374 F. Supp. 336, 1974 U.S. Dist. LEXIS 9304 (D. Kan. 1974).

Opinion

MEMORANDUM OF DECISION

THEIS, District Judge.

This is a proceeding under Title II of the Social Security Act, as amended, 42 U.S.C. § 401 et seq. Section 405(g) provides for judicial review of a “final decision” of the Secretary of Health, Education and Welfare. The case is presently before the Court on defendant’s motion for summary judgment. Being fully advised in this matter, the Court makes the following findings and orders.

On March 10, 1971, the plaintiff filed her application to establish a period of disability, as provided in § 416 (i), and to obtain disability insurance benefits, as provided in § 423. On November 27, 1972, at plaintiff’s request, a hearing was held, at which plaintiff, her husband, and her attorney appeared. On January 12, 1973, the hearing examiner rendered a decision unfavorable to plaintiff. He found that plaintiff was not under a “disability” as defined in the Social Security Act, at any time when she met the earnings requirement of the law. On April 20, 1973, the Appeals Council of the Social Security Administration affirmed the decision of the hearing examiner. Thus, the decision of the hearing examiner stands as the final decision of the Secretary.

Section 223(d)(1) of the Social Security Act, as amended, defines “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to . . . last for a continuous period of not less than 12 months.” Section 223(d) (2) (A) further provides:

“An individual . . . shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), ‘work which exists in the national economy’ means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.”

The burden of proving such a disability is on the plaintiff. 42 U.S.C. § 423(d)(5); Johnson v. Finch, 437 F.2d 1321 (10th Cir. 1971); Brock v. Finch, 313 F.Supp. 1187 (D.Kan.1970).

Plaintiff’s evidence established that she suffered from petit mal or light seizures of epilepsy as a child. The seizures continued through high school. They were far apart in her teens and came at irregular intervals. The attacks became more severe when plaintiff reached her twenties. When she was working at Farmers Livestock Commission in Springfield, Missouri, in 1952, she had two grand mal type seizures and many minor spells. Since beginning treatment under Dr. Conwell in 1952, she has had no further grand mal seizures.

[338]*338The plaintiff was treated for her seizures with medication by Dr. Conwell from 1952 until his death. Dr. Harris, an associate of Dr. Conwell, continued treating her after Dr. Conwell’s death. Plaintiff has taken medication for epilepsy for 20 years. She was hospitalized in 1952 for tests, and in 1955 for removal of an ovary and her appendix. She had no disabling effects from this operation. In August, 1955, plaintiff was hospitalized for enterocolitis which was caused by complications from the prior operation. Her next hospital admission was in February, 1967, for removal of her gallbladder. Since her gallbladder surgery she has been unable to eat very much or belch, and she has had excessive gas. She is presently on a diet to help alleviate the latter problem. Due to gas buildup caused by tension, the plaintiff testified that she was unable to work all of the time.

The plaintiff testified that she has had no convulsions since she has been on medication prescribed by her doctor, and that she has not had a grand mal seizure since 1966. She has had some minor spells lasting only a few seconds. She is presently taking Phenobarbital and Mebaral, and her doctor told her this causes a reaction of drowsiness and lazy colon. The plaintiff last saw Dr. Little, a psychiatrist treating her epileptic condition, in October, 1972. She sees him at yearly intervals.

St. Joseph Hospital records, signed by Dr. Winchester, revealed that he had first treated plaintiff in 1962 for pain in her legs and then saw her in 1963 for an acute pharyngitis, calcific bursitis in her left shoulder, and nasal sinusitis. All complaints responded to medication. A cyst was incised and drained in August 1965. At an examination in March, 1966, plaintiff stated she had had several light seizures in the past month and occasional blackout spells that lasted for a few seconds. She was advised to have her medication adjusted. A mild dysuria noted at that time was treated with medication. An examination on December 30, 1966, revealed gallstones (cholelithiasis) and plaintiff’s gallbladder was removed (cholecystectomy) during hospitalization from February 10 to February 19, 1967.

A report dated March 16, 1971, from Gilbert Little, M.D., a psychiatrist, contained a diagnosis of epilepsy and stated that since 1965, Mebaral and Dilantin had controlled plaintiff’s seizures when she was not under pressure. The report also- remarked that plaintiff was unable to hold a steady position because under stress the medication did not control her anxiety state. No laboratory or clinical reports were included with this report.

J. Paul Schweinfurth, M.D., a neurosurgeon, examined the plaintiff on April 27, 1971, at the request of the Kansas State agency for vocational rehabilitation. Dr. Schweinfurth reported that plaintiff had been taking medication for epilepsy since 1952 when she had consulted Dr. Conwell and Dr. Harris, and that she had also consulted Dr. James Donnell. Since 1965, she had been treated by Dr. Little. She had not had a generalized convulsion since February 1962. Copies of reports of electroencephalograms made on January 22 and February 26, 1962, furnished to Dr. Schweinfurth were interpreted by Dr. Ralph Drake, a neurologist, as abnormal and showed paroxysmal cerebral dysrhythmia. Plaintiff took Phenobarbital and Mebaral daily and about once every 2 months experienced lapses of consciousness of a few seconds duration. No objective evidence of any other disorder of the central nervous system was noted. Plaintiff also complained of constipation all her life and aching thighs and calves for the last 2 years.

A report from Dr. Little to plaintiff’s attorney dated December 6, 1972, stated that plaintiff got along quite well on the presently-established dosage of Phenobarbital and Mebaral. There was occasional psychomotor activity when she was under stress, such as playing the piano in church and Sunday School. Plaintiff increased medication when she performed at churches to avoid sensations of stress, but this left her too [339]*339drowsy to perform properly. Dr. Little commented that plaintiff’s condition limited her social life. No clinical or laboratory data accompanied this letter.

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Cite This Page — Counsel Stack

Bluebook (online)
374 F. Supp. 336, 1974 U.S. Dist. LEXIS 9304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bean-v-secretary-of-health-education-welfare-ksd-1974.