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January 17, 1964


The opinion of the court was delivered by: Mercer, Chief Judge.

This case arises upon a complaint to review a decision of the Secretary of Health, Education and Welfare which held that the plaintiff is not entitled to the establishment of a period of disability under Section 216(i) of the Social Security Act or to disability insurance benefits under Section 223 of the Act. 42 U.S.C. § 416(i), 423. The cause is now before the court upon cross motions of the respective parties for summary judgment.

In his several applications, the latest of which was filed on November 12, 1958, plaintiff claims that he suffered a disability because of a stomach condition, coupled with inability to digest food, vomiting and convulsions, which prevented him from engaging in any substantial gainful activity from and after May 7, 1956. The denial of his several claims was reviewed by a hearing examiner who rendered a decision adverse to each of plaintiff's claims. The Appeals Council denied the plaintiff's request for a formal review of that decision, and the hearing examiner's decision then became the final decision of the Secretary. This complaint followed.

Under the provisions of Section 205(g) of the Act, 42 U.S.C. § 405(g), the only issue before this court is the question whether there is substantial evidence upon the record as a whole to support the hearing examiner's decision that plaintiff had failed to establish that he had a medically determinable physical or mental impairment, or combination of impairments, which prevented him from engaging in any substantial gainful activity from May 7, 1956, and continuing until November 12, 1958, the date of his most recent application for disability benefits.

The burden of proof was on the plaintiff. It is not the function of this court to make its own appraisal of the evidence. Its only function is to determine whether substantial evidence on the record as a whole supports the findings of the hearing examiner. Degner v. Celebrezze, 7 Cir., 317 F.2d 819; Carqueville v. Flemming, 7 Cir., 263 F.2d 875; Rosewall v. Folsom, 7 Cir., 239 F.2d 724. As the court said in the Degner case, "We may review the record only to determine whether it contained substantial evidence to support the Secretary's decision." 317 F.2d at 821.

Upon the whole record, it is my conclusion that substantial evidence does support the decision of the hearing examiner.

Plaintiff was 50 years of age when he filed his application for disability benefits on November 12, 1958. He had completed six years of elementary schooling. He was employed by Caterpillar Tractor Company from 1936 until May, 1956, with the exception of a brief period in 1942 and 1943 when he served in the armed forces of the United States. In the course of his employment, plaintiff had, from time to time, performed a number of duties, including work in skilled classifications. His most recent assignment had been the operation of a hand truck in the salvage department. He claims that he left that employment in May, 1956, because of incapacitating illness and that he has continuously remained disabled for any work.

The medical evidence indicates that plaintiff had major surgery in 1951 when his gallbladder and spleen were removed. In 1952 a right direct hernia was surgically repaired, the right testicle was removed and an abdominal abscess, not identified as being related to either the major surgery of 1951 or the hernia, was treated. In 1953, plaintiff was hospitalized for treatment of infected sutures in an abdominal incision, and the sutures were removed. Plaintiff was also examined at a Veterans Administration Hospital in 1953, and treated during a four-days residence at the hospital. Examination at that time disclosed chronic rhinitis, associated with the absence of the nasal septum and moderate postnasal drip, multiple abdominal scarring, absence of the right testicle and arrested pulmonary tuberculosis.*fn1 During 1955, plaintiff developed hemorrhoids which were sutured. Later in the same year he was hospitalized for the surgical repair of a left indirect inguinal hernia. In May, 1956, plaintiff had surgery for repair of a ventral hernia and lysis, or freeing of adhesions. In January, 1957, he was hospitalized and treated for mucous colitis.

Plaintiff was treated as an out-patient at the Illinois Research and Education Hospital at Chicago from March to August, 1957. His chief complaint at that time, as noted by the hospital records, was epigastric pain. He was found to be suffering from a stomach ulcer which responded to treatment at the hospital and was shown to be healed by an examination made on July 26, 1957. The examination at that hospital revealed that plaintiff was a well-developed, well-nourished man in no acute distress. The findings upon all other examinations made of the plaintiff at that time were essentially normal.

A thorough examination of plaintiff was made by the Veterans Administration on July 23, 1957, which resulted in a diagnosis of enlarged septal perforations, chronic rhinitis, sinusitis and mild defective hearing. The diagnosis further revealed minimal, inactive pulmonary tuberculosis of Class IV designation, meaning that plaintiff's work tolerance was eight hours per day engaged in normal work activities. Radiographic tests of the stomach and duodenum were negative. In August of 1958, plaintiff was again examined by Veterans Administration doctors, with that work-up including a special psychiatric examination. Clinical findings of the physical examination were similar to those made at the earlier VA examination, and all were essentially negative. Upon the psychiatric examination, plaintiff's memory, judgment, orientation, retention, school and general knowledge were found to be good. No signs of psychosis were revealed. The diagnosis with relation to that examination was anxiety reaction with conversion symptoms.

In October, 1958, plaintiff was admitted to a VA hospital upon his complaints of upper abdominal distress. Again, except that x-rays revealed a gastric ulcer, a complete physical examination was essentially negative. X-rays taken three weeks later showed the ulcer healed. The diagnosis made by the hospital at that time was a gastric ulcer and anxiety reaction, with both reported treated and improved.*fn2

Because the surgery, residuals of surgery and the ulcer history did not appear from the clinical reports to impair the plaintiff to such extent that he could not engage in any substantial gainful activity, the Bureau of Old Age and Survivors Insurance obtained a psychiatric examination of plaintiff by Dr. B.C. Ehmke. Dr. Ehmke examined plaintiff on May 27 and June 20, 1960. His report of his first examination reveals his findings that the heart was normal, that the abdomen showed some tenderness and that the neurological examination was essentially negative. His review of the hospital records and clinical reports disclosed no anatomic abnormalities. He reported that plaintiff's expressed feelings of anxiety could not be considered incapacitating, absent the possibility that the same were coupled with epilepsy. He recommended further examination including the taking of an electroencephalogram (EEG) to determine whether there were any epileptic symptoms. An EEG taken at Methodist Hospital in Peoria showed no abnormality. Skull x-rays taken at the same time showed no intracranial involvement, but did show some incidental bone growth in the right front sinus. Dr. Ehmke reported his second interview with the plaintiff and his findings, in part, as follows:

  "* * * the second exposure to the patient was quite
  informative because he was not as well prepared to
  meet the questions of the examiner on the second
  occasion as he must have been on the first occasion.
  In view of the normal results of our examinations at
  this time and the fact that his recent hospital
  records which cover thorough evaluation made of his
  stomach problems which were also essentially within
  normal limits, I find that I must revise my original
  opinion concerning this man. When he was confronted
  with the normal results of these examinations and
  interrogated further it became obvious that the
  patient clutches desperately in the direction of his
  many complaints and manufactures a multitude of
  further complaints in an effort to convince me of the
  serious nature of his dilemma. Then I opened the
  discussion further in the direction of a return to
  work and his attitude of willingness to return to
  work had entirely melted away and he poured forth
  another barrage of physical complaints.
  "It is apparent that the patient is utilizing his
  many complaints for the secondary gain of obtaining
  relief from responsibility towards society and toward
  his family. This is operating either through a rather
  superficial hysterical mechanism of a definite
  malingering. The latter would, of course, be very
  difficult to prove unless the patient openly admitted
  a design in this direction. At any rate he has
  himself completely convinced that he is incapacitated
  for any form of gainful employment. "It is my opinion
  now that the patient is physically capable of
  moderate degrees of manual labor. As I mentioned
  before his intellectual capacity and educational

  limit him to manual forms of work. Although his
  condition incapacitates him from employment because
  it destroys his motivation of (sic) his interest in
  working and supporting and caring for his family
  rather than incapacitating him in the ...

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