he is physically disqualified to do work of any kind, mostly
because of a stomach condition which has existed for 2½ years."
The doctor concluded that he felt that petitioner was totally and
permanently disabled and "definitely entitled to his social
security on a disability basis." On August 24, 1955, the Appeals
Council denied petitioner's request for review of referee's
decision, which became the final administrative decision which is
before the court on this petition for review.
I find that there is no substance whatsoever to petitioner's
contention that the referee refused to admit competent evidence.
The record discloses that the referee admitted all evidence
offered at the hearing except a letter which was marked as
Exhibit No. 19, and which was withdrawn by petitioner's counsel
with the statement, "I don't think it would serve any purpose. We
will withdraw that." The record does not show the nature of the
content of this letter, but only that a letter of some
description was offered by counsel and then withdrawn. In view of
petitioner's withdrawal of the offer of the evidence, petitioner
cannot now contend that admission of the exhibit was improperly
This court is not at liberty to disturb the respondent's
decision upon this claim if the findings upon which that decision
rests are supported by substantial evidence. Universal Camera
Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456;
Heikes v. Fleming, D.C.S.D.Ill., 168 F. Supp. 675, affirmed 7
Cir., 272 F.2d 137. The only factual question before the
respondent was the question of disability, namely, is plaintiff
disabled to the extent that he is unable to accept gainful
employment? In this regard, petitioner contends that respondent
arbitrarily accepted the reports of Dr. Helfrich and denied
credence to other evidence in the record which was in conflict
Certainly, on a numercial basis, there are more doctor's
statements in the record which say plaintiff is disabled than
there are doctor's statements which say that plaintiff is not
disabled. But that does not aid the determination of the question
whether substantial evidence supports the respondent's decision.
Plaintiff stated in his application and testified that the
disability which he claimed arose largely because of gastronomic
conditions. Dr. Helfrich, the doctor who performed the resection
on plaintiff's stomach, and the doctor who treated him for the
gastronomic difficulties which occasioned that operation,
concluded in his report that plaintiff was able to do ordinary
work although the condition did render him incapable of doing
heavy manual labor. Dr. Perkins, the only other doctor, who is
shown by the record to have treated plaintiff for any physical
condition, reported that no difficulty arose because of the
resection of the bladder which he had performed upon petitioner,
but did state, as his opinion, that petitioner was disabled
because of a stomach and bowel condition. Statements by the other
doctors are merely to the effect that they had examined
petitioner and thought him to be unable to work. On the other
hand, the record discloses plaintiff was gainfully employed by
Republic Steel for a period of about 10 weeks after the date on
which he claims the disability arose. He testified that he left
that employment when they closed the mill, stating that his
physical condition prevented him from staying on for a longer
period of time while the steel mill was dismantled.
Respondent has resolved the conflict in the evidence against
petitioner's claim. The proceeding here is not a trial de novo,
Hobby v. Hodges, 10 Cir., 215 F.2d 754, and the court may
overturn respondent's decision only if it finds that that
decision lacks substantial support upon the record as a whole.
N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100
L.Ed. 975; Teder v. Hobby, 7 Cir., 230 F.2d 385; United States v.
LaLone, 9 Cir., 152 F.2d 43. Upon the record as a whole, I must
that respondent's decision is supported by substantial evidence.
In the face of that decision, the court has no power to inquire
I have examined other contentions made by petitioner against
the decision and find them wholly without merit.
Judgment is entered dismissing the petition and affirming
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