246 F. Supp. 330 | E.D. Tenn. | 1965
This is an action for a judicial review of the final decision of the defendant administrator, denying the plaintiff disability benefits under the Social Security Act. It was remanded to the defendant, 42 U.S.C. § 405(g), with directions that the Social Security Administration conduct further proceedings in conformity with the Court’s memorandum opinion of February 17, 1964.
Additional hearings were thereafter held, resulting in a final decision of the defendant’s appeals council that the plaintiff did not have a medically determinable musculoskeletal impairment of long-continued and indefinite duration which resulted in the plaintiff’s inability to engage in any substantial gainful activity during the effective period of his application. Under these findings, there is no necessity for a showing of gainful work which the plaintiff was capable of doing and the availability of any such work. Ward v. Ribicoff, C.A.6th (1962), 309 F.2d 157 [2]; Bradey v. Ribicoff, C.A.4th (1962), 298 F.2d 855, 857 [2], certiorari denied (1962), 370 U.S. 951,
The findings of the defendant’s said council are supported by substantial evidence and are, therefore, conclusive. 42 U.S.C. § 405(g); Hall v. Celebrezze, C.A.6th (1965), 340 F.2d 608, 608-609 [2]. The burden of proving his disability herein is on the plaintiff, 42 U.S.C. §§ 416(i) (1) and 423(c)(2); Erickson v. Ribicoff, C.A.6th (1962), 305 F.2d 638, 640 [1], and this is conceded in his brief; yet, the plaintiff refuses to submit to examination which, apparently, is the only means of providing proof of any disability.
The plaintiff’s personal physician, Dr. William Templeton, suspects a herniated disc and has repeatedly recommended that the plaintiff undergo a myelogram, without which, according to Dr. Temple-ton, an absolute diagnosis of disc injury is impossible. While this is a reasonably safe medical procedure by which dye is injected into the spinal canal preparatory to an x-ray examination, and while the plaintiff first agreed to undergo the process, after consulting “headquarters”,
“ * * * (A) remediable ailment cannot be the basis of a claim under the [Social Security] Act. 20 C.F.R. 4021.-1502(g)
“Thus Claimant failed to establish the existence of a medically determinable ailment that would cause inability to engage in any substantial gainful activity. * * * ” Bradey v. Ribicoff, supra, 298 F.2d p. 857 [2, 3].
If the plaintiff Mr. Wright chooses to continue his obstinacy, he must forfeit, inter alia, what is apparently his only clear chance to establish the existence of a medically determinable ailment. On the other hand, if he chooses to consent to his physician’s method of examination which might disclose the presently claimed impairment, he may then file an additional application for disability insurance benefits, if he remains in insured status. The Court understands from the defendant’s brief that Mr. Wright would not then be precluded from filing a subsequent application alleging the onset of a disability at a later time during which he still meets the “special earnings requirement” of Social Security Act, citing McDaniel v. Celebrezze, C.A.4th (1964), 331 F.2d 426 and other opinions.
In the present posture of the matter, however, this Court must overrule the plaintiff’s motion for a summary judgment, deny him all relief, and sustain the motion of the defendant administrator for a summary judgment, in affirmance of the latter’s decision of October 28, 1964.
. Viz., Mrs. Earl Wright, the plaintiff’s good wife.
. Sic: 404.1502(g).