Mullins v. Finch

319 F. Supp. 588, 1970 U.S. Dist. LEXIS 9480
CourtDistrict Court, W.D. Virginia
DecidedNovember 19, 1970
DocketCiv. A. No. 69-C-118-A
StatusPublished
Cited by2 cases

This text of 319 F. Supp. 588 (Mullins 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
Mullins v. Finch, 319 F. Supp. 588, 1970 U.S. Dist. LEXIS 9480 (W.D. Va. 1970).

Opinion

OPINION

WIDENER, District Judge.

This is an action brought by claimant, Ralph Mullins, under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking a review of the decision of the Secretary of Health, Education and Wei-[590]*590fare denying claimant’s application for a period of disability and disability insurance benefits claimed under §§ 216(i) of the Act, 42 U.S.C., 416(i), and 223(d) of the Act as amended, 42 U.S.C. 423(d) (Cum.Supp.1969) respectively.

Section 205(g) of the Act sets out the scope of the court’s review providing that “The finding of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.” “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). If the decision of the Secretary is supported by substantial evidence, that decision must be affirmed even though the reviewing court might disagree with the Secretary’s decision. Hayes v. Gardner, 376 F.2d 517, 520 (4th Cir.1967).

The claimant filed an application for disability insurance benefits on July 17, 1968 alleging that he had been unable to work as of June 15, 1968, because of “arthritis and chest condition.” On September 23, 1968, the application was denied by the disability examiner, and on October 3, 1968, the claimant, by his attorney, requested a reconsideration of his claim. On November 14, 1968, the original denial was affirmed. On November 21, 1968, claimant’s attorney requested a hearing before a Hearing Examiner. A hearing was held on February 27, 1969, in Norton, Virginia. The medical evidence before the Hearing Examiner was a report of a physical examination of the claimant made by the Veteran’s Administration on August 13, 1968 and a brief letter report from H. H. Howze, M.D., dated March 1, 1969, which was admitted into record by the Hearing Examiner on March 10, 1969.

The Hearing Examiner’s decision, dated March 28, 1969, held that claimant was not entitled to establish a period of disability or to receive disability insurance benefits. On April 1, 1969, claimant’s attorney notified the Social Security District Office that claimant requested the Appeals Council to review the Hearing Examiner’s decision. As additional evidence which was considered by the Appeals Council, claimant furnished a medical report dated April 28, 1969, from Leonell C. Strong, Jr., M.D.

Prior to the review by the Appeals Council, the Council requested the Virginia State Department of Vocational Rehabilitation to arrange for claimant to undergo further medical tests, and, accordingly, on July 2, 1969, the claimant was examined and tested by John H. Willard, M. D., and Gilbert L. Hamilton, M.D.

On November 14, 1969, the Appeals Council affirmed the decision of the Hearing Examiner, and on November 18, 1969, the claimant instituted the present action.

Claimant was born on March 25, 1917, in Wise County, Virginia, and attended school through the fifth grade. He can read and write. Claimant worked in the coal mines as a hand loader for approximately eight years, until he enlisted in military service in 1940, serving until 1945, when he was honorably discharged. Claimant’s chief duty in the service was cooking. For three years following his discharge, claimant worked as a section laborer on a railroad and as a coal miner. In 1948, he returned to military service and worked as a cook until 1952, when he was again honorably discharged. After his separation from military duty in 1952, claimant worked in the coal mines until 1958, when he began working on a part-time basis for a beer distributor, unloading cases of beer from boxcars. Claimant has not worked steadily since 1957, and he has not earned in excess of $800.00 during any year since 1957. He attributes his low earnings to his inability to obtain steady employment and because of his being periodically disabled. In 1967, claimant completed a sixteen-week cooking school at the Wise Technical School, and after-wards he worked as a cook at a drive-in' restaurant, where his work was satisfactory. He was hired to work twelve hours a day and was to receive a salary of $300.00 per month. Claimant testi[591]*591fied he had to quit the job at the restaurant after thirty days because his feet became swollen and painful. After-wards, he says, he returned to part-time work unloading boxcars and was so employed until he quit work in June, 1968 because of his physical condition.

Claimant is married and has seven children; the eldest child is seventeen years old and the youngest is less than two years old. The family lives in a four-room house which is furnished rent-free by the owner. The only income which the family has is claimant’s pension from the Veterans Administration, approximately $130.00 per month.

Besides complaints about swelling, and pain in his ankles and feet, claimant testified that “chest trouble” caused him to get “weak and sick” in the “stomach and legs” approximately every other day. He also testified that he can walk only two or three blocks before he “smothers down” or “chokes down.” His appetite is normal; he has not had an alcoholic drink for over a year; and he has not smoked for the past ten years, although he does use snuff. Claimant testified that all he is able to do is “just sit around the house” and watch television.

The medical evidence submitted is as follows:

On August 13, 1968, claimant was examined by John L. Harris, Jr., M.D., and Max Baumwell, M.D., for disability evaluation by the Veterans Administration. The examination included measurements of pulse, blood pressure, and respiration, as well as x-rays of claimant’s feet and chest. The diagnosis of that examination was;

“1. Pes cavus bilateral, not appearing to be disabling.
2. Callouses of feet, plantar surface bilateral, 1st and 5th metatarsal areas and heels, not appearing to be disabling.
3. Moderately severe obstructive emphysema.
4. Hypertension not found.
5. Obesity.”

The radiographic report made during this examination showed a “calcified plaque in the transverse aorta. No active lung disease was seen.”

The Veterans Administration report concluded that the “moderately severe obstructive emphysema” produced a “moderate impairment of ventilatory function.” There were no symptoms of dyspnea.

On March 1, 1969, H. H. Howze, M.D., wrote a letter to claimant’s attorney in which he stated:

“I have seen Mr. Mullins several times in the office during 1968 for treatment for hypertension, obesity, osteoarthritis of the spine and feet. He has weak arches in his feet, which produce a metatarsalgia which is painful and disabling when walking or standing.”

This was the extent of Dr. Howze’s report, which contained no mention of specific tests performed or of any specific treatment carried out.

On April 28, 1968, Leonell C.

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Bluebook (online)
319 F. Supp. 588, 1970 U.S. Dist. LEXIS 9480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mullins-v-finch-vawd-1970.