Long v. Cohen

293 F. Supp. 370, 1968 U.S. Dist. LEXIS 8097
CourtDistrict Court, W.D. Virginia
DecidedSeptember 19, 1968
DocketCiv. A. No. 68-C-7-A
StatusPublished
Cited by4 cases

This text of 293 F. Supp. 370 (Long v. Cohen) 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
Long v. Cohen, 293 F. Supp. 370, 1968 U.S. Dist. LEXIS 8097 (W.D. Va. 1968).

Opinion

OPINION and JUDGMENT

DALTON, Chief Judge.

From an adverse decision of the Secretary of Health, Education and Welfare denying disability insurance benefits, rendered on January 12,1968, Alva Long, a resident of Rose Hill, Virginia has appealed to this court. Born October 26, 1913, he is now fifty-four years of age. Possessor of a second grade education, he can sign his name, but is otherwise illiterate. At the age of thirteen, he went to work with his father in the coal mines as a hand loader. Some twenty-nine years later in 1955, after steady employment, Long was injured in a shuttle car accident in the mines. Unable to return to the heavy work in the mines because of his injuries, he went to Port[372]*372land, Oregon and secured work as a farm laborer. His work consisted of supervising some three hundred school children picking berries, seeing that the children picked all the berries and how long they worked. Mr. Long testified at his hearing that he had nothing to do with paying the children or loading the berries once they were picked. According to the disability interview report, the claimant supervised some eight to ten people during the winter months in pruning activities. This employment continued until 1965. During that year, on March 17, 1965, Long underwent a hemorrhoidectomy operation. Upon being released from the hospital Long returned to the berry farm and worked until May of 1965. According to the claimant he became disqualified to work on the berry farm in May of 1965. After that he worked for three months on a county welfare project in Oregon gluing flower boxes together. This entailed ten days of work per month. According to the claimant, he was disqualified from this work because he had to take a “shot” for his lungs every week. Sometime in late 1965 or early 1966 a physician in Oregon suggested that the claimant return to Virginia or a warmer climate because of a bronchitis condition. The claimant returned to Virginia in May 1966. A month later he was involved in an automobile accident in which he sustained several fractured ribs and a fractured hip.

In his application for disability insurance benefits, filed on June 16, 1966, Alva Long claimed that he was prevented from working because of ulcers, bronchitis, a useless left arm and a rupture. As his special insured status will not expire until December 31, 1970, the Secretary’s findings must necessarily have evaluated claimant’s condition as of the date of the final decision. The Secretary found that as of January 12, 1968 that the claimant’s impairments do not preclude sustained physical activity, such activity being commensurate with his usual occupation as a farm foreman and that the evidence fails to establish that the claimant’s impairments, either singly or in combination, prevented him from engaging in substantial gainful activity prior to the date of the Secretary’s decision; therefore, the claimant is not under a “disability” as defined by the Social Security Act, §§ 216(i), 223, as amended. 42 U.S.C. §§ 416 (i) and 423.

The Secretary does not attempt to claim that Mr. Long is able to return to his former employment in the coal mines. It is clear from the evidence that he cannot. The Secretary has attempted to prove that the claimant can return to his former position as a supervisor of agricultural labor.

The Appeals Council reviewed the medical history of Mr. Long and we briefly reviewed it here.

The earliest medical records, from the University of Oregon Medical School, show that Mr. Long had been seen in the General Medicine Clinic on several occasions during 1956 with complaints of stomach pain. An upper gastrointestinal series revealed a distorted duodenal cap with no active ulcer erator demonstrated. He was treated with Sippy tablets #1 and #2 and Belaps.

Mr. Long returned to the clinic in November, 1964, complaining of abdominal pain. An upper gastrointestinal series at this time demonstrated scarring but no active ulcer. Cholecystograms had been normal. Barium enema had been normal; EKG, normal.

Mr. Long was admitted to Multnomah County Hospital (Oregon) on March 9, 1965, with prolapsing hemorrhoids. A hemorrhoidectomy was performed on March 17, 1965. He developed postoperative pneumonitis which responded well to penicillin. A chest x-ray on March 19, 1965, revealed no evidence of any active inflammatory disease. Claimant was discharged from the hospital on March 25, 1965. An examination in the Surgery Follow-Up Clinic on April 3, 1965, revealed that the hemorrhoidectomy site was well healed and there was very little tenderness. Mr. Long had also complained of interscapular pain but an appointment at the Orthopedics Clinic for eval[373]*373uation on September 20, 1965, was can-celled. The hospital had no further contact with Mr. Long.

The record shows that the claimant received emergency treatment in a clinic at Middlesboro, Kentucky on June 18, 1966, after he had been involved in an automobile accident. The final diagnosis was that he had fractured three ribs and his hip. The diagnosis also included bronchiectasis, old. The claimant spent four days in the clinic and some twenty-one days in bed at home. This accident occurred two days after Mr. Long had filed his application for disability insurance benefits.

On September 12, 1966, the claimant was examined at the Appalachian Kegional Hospital, Inc., by Doctor Charles L. Kirkpatrick, a specialist in internal medicine. The claimant's chief complaints were stomach trouble, pain in the left hip and a painful stiff left shoulder. The examination showed that the claimant was well developed and fairly well nourished. In the extremities there was marked purpuric discoloration of the entire right arm due to recent injury. There was apparent tenderness over the medial surface of the left thigh. Claimant could walk on his toes and heels without difficulty and straight leg-raising was neither painful nor restricted. All reflexes were present and active. Neurologieally there was a glove type anesthesia at the wrist on the left which was not believed to be true anesthesia. Laboratory studies were within normal limits. Chest x-rays showed old healed deformities of the right second rib, and of the left fourth, fifth and sixth ribs. There was calcification in the arch of the aorta without heart enlargement. Lung fields were clear without recent infiltration. An x-ray of the right shoulder showed a widening of the acromioclavicular joint but without fracture of the central portion of the acetabulum at junction. A pulmonary function study showed that the claimant may have some difficulty in breathing. The doctor’s final diagnosis was (1) Arteriosclerosis, aorta (2) Joint separation, old, acromioclavicular joint, left (3) Fracture, old, central portion of acetabulum and ischiopubic junction on the left (4) Arthritis, osteo, chronic, old, hip joint, left (5) Ulcer, duodenal, old, with scarring and without active crator (probable).

Based upon the above information, the Secretary found that the claimant was not eligible to receive disability insurance benefits and so informed the claimant by letter dated November 9, 1966. Mr. Long filed a request for reconsideration on November 14, 1966. As a result of this request a further examination was performed on January 30,1967. The claimant's chief complaint on this examination was stomach trouble and he told of vomiting spells and cramping pains. Dr. Kirkpatrick again examined the claimant.

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Related

Long v. Richardson
334 F. Supp. 305 (W.D. Virginia, 1971)

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Bluebook (online)
293 F. Supp. 370, 1968 U.S. Dist. LEXIS 8097, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-cohen-vawd-1968.