Besseck v. Finch

342 F. Supp. 957, 1972 U.S. Dist. LEXIS 14106
CourtDistrict Court, W.D. Virginia
DecidedApril 20, 1972
DocketCiv. A. 69-C-39-A
StatusPublished
Cited by5 cases

This text of 342 F. Supp. 957 (Besseck v. Finch) is published on Counsel Stack Legal Research, covering District Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Besseck v. Finch, 342 F. Supp. 957, 1972 U.S. Dist. LEXIS 14106 (W.D. Va. 1972).

Opinion

OPINION

WIDENER, District Judge.

This is an action under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g) to review a final decision of the Secretary of Health, Education and Welfare, denying claimant’s application for the establishment of a period of disability under § 216(i) of the Act, 42 U.S.C. § 416(i), and for disability insurance benefits as provided by § 223 of the Act, 42 U.S.C. § 423.

On February 1, 1968, Besseck filed an application for a period of disability and for disability insurance benefits, alleging that he had been unable to work since May 29, 1967, because of loss of vision in his left eye, hypertension, an injured left hand, and broken vertebrae. His evidence also claims disability because of a character disorder. Claimant’s application was denied initially by the Social Security Administration on March 14, 1968, and upon reconsideration on May 7, 1968. Besseck’s request for a hearing was granted and the hearing examiner held that claimant was not entitled to a period of disability or to disability insurance benefits. The Appeals Council affirmed the hearing examiner’s decision on March 21, 1969, thereby making the hearing examiner’s *959 decision the final decision of the Secretary. After claimant instituted an action to review the Secretary’s determination, this court, pursuant to 42 U.S.C. § 405(g), remanded the case to the Secretary for administrative proceedings. The Secretary, by decision of the Appeals Council rendered January 20, 1971, again held that claimant was not entitled to a period of disability or to disability insurance benefits. The case was reinstated on the docket, and both parties have renewed their motions for summary judgment.

The issue before the court is whether, from the record, the decision of the Secretary is supported by substantial evidence. “Substantial evidence” is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). For the reasons which follow, the court finds that the decision of the Secretary is so supported and must be affirmed.

The claimant has the burden of proving that he is under a disability as defined by the Social Security Act, 42 U.S.C. § 416. Griffey v. Cohen, 299 F.Supp. 714 (W.D.Va.1969), aff’d. 421 F.2d 187 (4th Cir. 1970). Of course, this burden need not be carried to a point beyond a reasonable doubt. Thomas v. Celebrezze, 331 F.2d 541, 545 (4th Cir. 1964).

Claimant last met the special earnings requirements of the Act on December 31, 1967. Therefore, he must establish that his disability began on or before that date.

Claimant was forty-seven years old on May 29, 1967, the date that he allegedly became disabled. Claimant has a tenth grade education and a work history which includes jobs as busboy, a coal miner, a drill operator, a heavy equipment mechanic, a construction laborer and fireman, and a convict road construction guard. Besseck has not been employed since 1965, except for one week during 1966 and he has not attempted to find employment since 1966.

Claimant, in his testimony before the Hearing Examiner, gave the details of his various impairments. The injury to his left thumb resulted from an accident which he suffered at age eighteen while chopping wood. The thumb, even though it was surgically replaced, has been useless to claimant ever since the accident.

Claimant lost the vision in his left eye during World War II while he was in the Navy. Claimant does have good vision in his right eye, but he states that recently his eye impairment has caused him to see double, to have blurred vision, and to suffer severe headaches.

Claimant testified that his high blood pressure has caused him a great deal of difficulty. Besseck stated that he is unable to control his hypertension by medication or by limiting his salt in-take, although he indicated that his hypertension was controlled by medication and diet while he was in a Veterans Administration hospital for a week in June of 1967.

Besseck testified that, as a result of an automobile accident in 1951, vertebrae in his back had been injured. He sustained another back injury in 1958 or 1959, although this second injury caused him to be absent from work only long enough to see a doctor.

He stated that it is necessary for him to spend fifteen to sixteen hours a day in bed. He also complained of being very nervous and jittery.

Claimant’s son, Michael Besseck, testified that he had worked with his father in 1965, when they were both hired to help start a new mine. The son’s testimony was to the effect that, while his father tried to do the work, he simply was not able, and as a result he was carried along by Michael and the other workers. In his son’s opinion, claimant was totally disabled.

The medical evidence in the record is not in substantial conflict. Claimant was first examined by the Veterans Administration on October 31, 1967. An eye examination revealed reduced visual *960 acuity in the left eye due to a healed chorioetinal condition. Vision in the right eye was good (20/15). Three blood pressure readings revealed claimant to be slightly hypertensive. These readings, however, were taken at a time when claimant was not taking medication for his blood pressure. Investigation of claimant’s back condition disclosed tenderness in the mid and upper back, but there was no muscle atrophy, spasm, or loss of motion discovered. The report notes that claimant complains of pain in this region, but there was no discomfort or complaint with respect to the lower back. X-rays of the spine, while not revealing any fractured vertebrae, did reveal slight osteoarthritis and very early arthritic changes. Visual and x-ray examination of claimant’s left thumb indicated that it was fused at its base.

A psychiatric evaluation made by the Veterans Administration showed that claimant was in good contact, well oriented, of normal intelligence, and not psychotic. The psychiatric diagnosis was anxiety reaction with depressive features and somatization.

Claimant does receive monthly compensation from the Veterans Administration on account of both service-connected and nonservice-connected impairments, although he was found to be entitled to total and permanent nonserviceconnected pension benefits. The Veterans Administration determined that Besseck was totally and permanently disabled as of May 29, 1967. This determination, while entitled to consideration by the Secretary, is not binding upon him. 20 C.F.R.

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Bluebook (online)
342 F. Supp. 957, 1972 U.S. Dist. LEXIS 14106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/besseck-v-finch-vawd-1972.