Billings v. United States

334 F. Supp. 1392, 1971 U.S. Dist. LEXIS 10594
CourtDistrict Court, D. Nebraska
DecidedNovember 30, 1971
DocketNo. CV71-L-125
StatusPublished
Cited by1 cases

This text of 334 F. Supp. 1392 (Billings v. United States) is published on Counsel Stack Legal Research, covering District Court, D. Nebraska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Billings v. United States, 334 F. Supp. 1392, 1971 U.S. Dist. LEXIS 10594 (D. Neb. 1971).

Opinion

URBOM, District Judge.

The plaintiff, Gerald Billings, has commenced a suit pursuant to 42 U.S. C.A. § 405(g), which provides for judicial review in the federal district court of decisions made by the Secretary of Health, Education and Welfare under the Social Security Act. The procedural history documents the plaintiff’s unsuccessful attempt to secure benefits under the Social Security Act through preliminary administrative channels. Consequently, on September 1, 1970, the plaintiff was granted a formal hearing conducted before a Social Security hearing examiner in Scottsbluff, Nebraska. It was the hearing examiner’s conclusion that the plaintiff was not entitled to the establishment of a period of disability, 42 U.S.C.A. § 416(i), or to disability insurance benefits under 42 U.S.C.A. § 423. The hearing examiner’s decision became the final decision of the Secretary after the appeals council of the Social Security Administration denied, on the basis that the hearing examiner’s decision was correct, the plaintiff’s request for review.

Both sides have moved for summary judgment and for the reasons that follow I conclude that summary judgment should be granted for the defendants.

It is now axiomatic that the § 405(g) jurisdiction vested in the federal district court is circumscribed. See Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Celebrezze v. Bolas, 316 F.2d 498 (C.A.8th Cir. 1963); Celebrezze v. Sutton, 338 F. 2d 417 (C.A.8th Cir. 1964); Brasher v. Celebrezze, 340 F.2d 413 (C.A. 8th Cir. 1965); Easttam v. Secretary of Health, Education and Welfare, 364 F.2d 509 (C.A.8th Cir. 1966).

The proper adjudication in this case turns upon the application of the statutory standard of "substantial evidence” to the hearing examiner’s findings. Richardson v. Perales, supra. The Supreme Court of the United States has defined substantial evidence as evidence that would “justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” N. L. R. B. v. Columbian Enameling & Stamping Co., 306 U.S. 292, 59 S.Ct. 501, 83 L.Ed. 660 (1939). Finally, if the findings of fact and the reasonable inferences drawn therefrom are supported by the substantial evidence, they are conclusive. Celebrezze v. Bolas, supra.

The applicant has the burden of establishing entitlement to disability benefits under the Social Security Act. See Easttam v. Secretary of Health, Education and Welfare and Celebrezze v. Sutton, supra. The burden requires the applicant to establish that he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months * * 42 U.S.C.A. § 423(d) (1) (A).

[1394]*1394The plaintiff testified, before the hearing examiner, that he was employed as a lineman for the Bureau of Reclamation, performing maintenance and repair work on electrical power lines, when he fell from a 35-foot switching tower. Four days after the accident, on March 13, 1969, the plaintiff was placed under the care of Dr. John G. Yost. Dr. Yost’s medical report dated September 11, 1969, describes the injuries that occurred as a result of the fall:

“Patient was first seen 3-17-69 with injuries involving left fibula and tibia. Fracture right ankle and multiple injuries. (Colles fracture,1 *chips off of his vertebra and some fractured ribs. Fracture right astragalus.2 Because of continued difficulty, a triple arthrodesis 3 ****was performed on 7-1-69.”

(T. 83)

In Dr. Yost’s final medical report on September 8, 1970, it was observed:

“At the present time, Gerald is in a walking cast on his left leg. A year ago, he had a triple, arthrodesis on his right foot. Because of the partial immobilization of his right foot in the cast, it is my feeling that this man is unable to perform any type of work that requires walking, climbing, or standing.”

(T. 102)

Dr. Yost did not testify at the hearing conducted by the hearing examiner.

The plaintiff’s education, training and experience indicate that he began in 1959, after completing one year of college, to work as a motor scraper operator for a construction company. From December, 1959, to August, 1968, he was a lineman for the Nebraska Public Power System. The plaintiff performed similar work for the Federal Bureau of Reclamation from August, 1968, until the date of his injury. At the time of the accident he was 29 years of age. It is undisputed that the plaintiff did not work from the date of his accident to the time of the hearing before the hearing examiner, albeit he was a student attending classes at a local college.

The plaintiff testified that he did not feel that he could fill any type of employment. (T. 48). However, this testimony was then rebutted by testimony elicited from Dr. Leighton Palmer-ton, the government’s vocational expert, who stated in part:

“ . . .1 disagree with his attorney that he is completely incapable of gainful employment. Actually, there are in the economy in the Dakotas and Nebraska hundreds of jobs that men with far less training and experience than this claimant has, far less-education, sedentary jobs are performing [sic]. For instance, we have the jewelry factory in Rapid City that is staffed almost entirely with handicapped people. Many of them never get out of a wheelchair. . . .”

(T. 53)

Other jobs mentioned by Dr. Palmerton were:

“Spot cleaner in a garment factory, assembler of small parts, packer, inventory clerk, shipping clerk, elevator operator, checker and attendant, meter reader, although that might require [1395]*1395too much walking, counter supervisor, parts order clerk.”

(T. 54)

Dr. Palmerton testified that these jobs numbered in the hundreds in the nearby economy. (T. 55) Significantly, the vocational expert’s testimony was not attacked before the hearing examiner on the basis that hundreds of the type of sedentary jobs did not exist in the national economy, but rather that the expert was unfamiliar with job opportunities existing in the Chadron, Nebraska, area. The clear language of 42 U.S.C.A. § 423(d) (2) (A) 4 indicates that “the courts are not to be concerned about the availability of jobs in the community or even their availability to one with the claimant’s impairments, but only with the question of the claimant’s ability to engage in gainful activity.” Whiten v. Finch, 437 F.2d 73 (C.A. 4th Cir. 1971).5 Also see Mullins v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Wayne Lindahl v. Office of Personnel Management
776 F.2d 276 (Federal Circuit, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
334 F. Supp. 1392, 1971 U.S. Dist. LEXIS 10594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/billings-v-united-states-ned-1971.