264 F. Supp. 576 | S.D. Miss. | 1967
The plaintiff (born March 26, 1908) is a white, well nourished male person with a third grade education who sues for social security benefits and to establish a period of disability.
It is significant to the Court throughout this record that the applicant steadfastly refused to allow a myelogram test to be made although orthopedic surgeons said that it was necessary to determine whether or not there should be an operation on his back. The applicant was adamant that there would be no test and no operation.
The motion of the defendant for a summary judgment will be sustained. A judgment accordingly may be presented.
. This suit was instituted to review the social security claim of the plaintiff which had been denied by the Secretary under the provisions of 42 U.S.C., 1958 ed., § 401 et seq. Disability is defined under said act in § 416 (i) and § 423(c) (2). Those sections containing those definitions were amended July 30, 1965 so that the last clause in said definition reads: “Or has lasted or can be expected to last for a continuous period of not less than 12 months.”
. Brown v. Gardner, D.C., 249 F.Supp. 968. Where disability benefits claimant had refused to submit to additional medical test on advise of counsel, cause was to be remanded to Secretary to give claimant opportunities to submit to such additional medical evaluation and examination as Secretary might direct, but if claimant failed to do so promptly Secretary would be entitled to summary judgment.
Morse v. Celebrezze, D.C., 235 F.Supp. 810. Where claimant of disability insurance benefits has refused to accept treatment or surgery for allegedly disabling condition, Secretary of Health, Education and Welfare should make an express determination of whether such refusal is reasonable.
In regulations adopted pursuant to 42 U.S.C.A. § 423(c) (2), “disability” has been further defined to include only those impairments which are not reasonably remedial.
“An individual will be deemed not under a disability if, with reasonable effort and safety to himself, the impairment can be diminished to the extent that the individual will not be prevented by the impairment from engaging in any substantial gainful activity.” 20 CFR § 404.1502(g).
Stephens v. Ribicoff, (4 CA) 307 F.2d 304. “To be entitled to disability payments, the claimant must show 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 to be of long-continued and indefinite duration * * *.’ 42 U.S.C.A.
§ 416 (i) (1) (A) and see. 423(c) (2). An impairment which is readily remediable does not qualify as one ‘of long-continued, indefinite duration.’ Bradey v. Ribicoff, 298 F.2d 855, 857 (4th Cir. 1962). [Certiorari denied 370 U.S. 951, 82 S.Ct. 1601, 8 L.Ed.2d 817.]”
Jarrett v. Celebrezze, 233 F.Supp. 282. Where claimant for disability benefits under Social Security Act made no show-in that her orthopedic impairment was not remedial and refused to take steps to determine what medicine, surgery or psychiatry could do to restore her ability to earn, claimant had duty to do so before she could claim disability.
“In this case the Court had before it a seeker of benefits who refuses to have a myelogram which would determine whether the back impairment is disabling, or could be relieved by surgery.”
“Not until treatment has been tried and is found unavailing can it be said, on the record here, that a reasonable certainty of permanence appears.” Ward v. Cele-brezze, (5 CA) 311 F.2d 115. Bradey v. Ribicoff, (4 CA) 298 F.2d 855.
Bradey v. Ribicoff, (4 CA) 298 F.2d 855. “An impairment which is presently capable of being classified as remedial cannot meet the requirement that it be ‘of long-continued and indefinite duration.’ We tbink it plain that the express terms of the Act require a reasonable showing of the permanence of the disability. ‘Not until treatment has been tried and found unavailing can it be said that a reasonable certainty of permanence appears.’ United States v. Hammond, (5 CCA) 87 F.2d 226 at 227.”
. United States v. Roberson, (5 CA) 233 F.2d 517: “Unquestionably the failure of a defendant in a civil case to testify or offer other evidence within his ability to produce and which would explain or rebut a case made by the other side, may, in a proper case, be considered as a circumstance against him and may raise a