DECISION

TAVARES, District Judge.

In this decision references to the record ("R. 18" etc.) refer to pages of the record in this district court, whereas references to transcript ("Tr. 78" etc.) refer to the certified copy of the transcript of the record, including the evidence upon which the findings and decision complained of are based, which was filed in this court by the defendant, as required by section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g).

The following statement of the case made in defendant's brief (R. 18-19) and accepted by the plaintiff in his brief (R. 36), is adopted by the Court.

This action was brought under section 205(g) of the Social Security Act, hereinafter called the Act, 42 U.S.C.A. § 405(g), to review a final decision of the Secretary of Health, Education, and Welfare disallowing plaintiff's application for the establishment of a period of disability and for disability insurance benefits under sections 216(i) and 223 of the Act, 42 U.S.C.A. §§ 416(i), 423.

The plaintiff filed an application for a period of disability and for disability insurance benefits on April 27, 1965 (Tr. 64-67), alleging that he became unable to work on May 4 or 5, 1954, at age 31. The application was denied initially (Tr. 71-72) and on reconsideration (Tr. 78-80) by the Bureau of Disability Insurance of the Social Security Administration, after the Hawaii Division of Vocational Rehabilitation, upon evaluation of the evidence by a physician and a disability examiner, had found that the plaintiff was not under a disability (Tr. 74-77).

The plaintiff had previously filed applications for disability benefits on October 10, 1955, and November 3, 1960, alleging that he became disabled on May 5, 1954 (Tr. 50-52, 56-59). These applications were denied on initial determination by the Bureau of Old Age and Survivors Insurance, and the plaintiff did not request reconsideration. These decisions thus became the final decisions of the Secretary on these earlier applications which are not before this Court on this review of the Secretary's decision of September 29, 1967. 20 C.F.R. § 404.908.

Having carefully examined the transcript and the applicable law, this Court believes that the plaintiff is entitled to relief in this action.

The defendant contends that the jurisdiction of this Court is limited to the question of whether or not the findings of the Secretary of Health, Education and Welfare are supported by substantial evidence. However, the transcript of the examiner's hearing (Tr. 16-46) indicates that a more fundamental question of basic fairness of the hearing is involved before we even reach the question of support of the findings by substantial evidence.

The hearing before the examiner held on May 24, 1967, at Honolulu, Hawaii, involved facts and events that happened during a period of 13 years, extending back to 1954. The plaintiff, a part-Hawaiian, with only a first year high school education, appeared before the examiner with his wife, also a part-Hawaiian.

Adequate preparation for a proper presentation of this involved matter covering testimony by two simple, scantily-educated witnesses, would well have justified many hours of study by a skilled attorney, so as to bring out the facts in their proper sequence and significance. The transcript makes it obvious that neither plaintiff nor his wife had made any such preparation, not even by refreshing their memories from the exhibits produced by the examiner and intended by him to be offered in evidence. Since plaintiff and his wife were thus obviously unprepared, unskilled and ignorant of the significance of the facts, such a situation called for the examiner, in the position of both inquisitor and judge, to be extra careful to see that all relevant facts and circumstances, both favorable and unfavorable, to plaintiff, be brought out, just as, when a party appears in court unrepresented by counsel, it is the Court's duty to attempt to see that all the facts are fairly presented.

At the outset the examiner went through the motions of ostensibly informing the claimant, Coyle, of his right to be represented by a lawyer or other qualified representative. The statement and conversation was as follows (Tr. 17-18). First the examiner pointed out to Mr. Coyle that on the back of the Notice of Hearing there was a paragraph that had to do with representation:

"It says that although it is not required, you may be represented by a lawyer or other qualified person if you so desire. Did you understand about that?

"CLAIMANT: Yes."

On the face of it, this would seem an adequate explanation of plaintiff's right, but the subsequent conversation indicates that plaintiff did not really understand his rights to representation. Thus, the questioning went on as follows: (Tr. 17-18)

"Q. Do you want to have any representative? You don't have to have."

(emphasis added to indicate how, with this and subsequent statements, plaintiff was subtly persuaded to proceed without any representation, even by his own wife).

"A. Well, I don't have any money to get any representative.

"Q. Well, is that what you are telling me, that you want to go ahead without a representative? Is that what you are saying?

"A. Well, the wife could do it." (Emphasis added.)

If anything, Coyle was expressing a need for help here, and a desire to have his wife act as his representative, or at least to assist him. But what did the examiner do? He immediately discouraged such assistance, by saying:

"Q. Is she going to act as your attorney or be your witness to tell me about you? Is she going to represent you and act for you? Is that what you want?"

The witness again indicated his ignorance of what the examiner was driving at, by answering:

"A. Well, she knows more about — "

Without permitting claimant to even finish his sentence, the examiner interrupted:

"Q. You mean you want her to tell me about your —"

And here again the examiner does not even finish his explanation, and the witness answers:

"That's right."

What the witness is thus corroborating is certainly not clear, yet the examiner continues:

"Q. Well, that is not being a representative. That is being a witness.

"A. A witness?

"Q. She can be your witness. I will be glad to hear from her, but a representative or an attorney would be acting for you. Did you want to have any representative or do you want to handle your case yourself?

"A. I'm a little mixed up." (Emphasis added.)

No reasonable person could fail to see that the claimant was utterly confused. Then, to compound the confusion, the examiner proceeds:

"Q. You know that an attorney, for instance, would come, and he could take action for you without your knowledge. * * *" (Emphasis added.)

That statement would tend to frighten an ignorant man with only a ninth-grade education from wanting to proceed any further with a representative who would be acting without his knowledge. The examiner continues:

"He could do various things as your representative because he would have full authority to act for you. Now you don't have to have any such person but you may if you wish; or you can represent yourself — you can handle your own case. Your wife can be a witness. * * *" (Emphasis added.)

Here the examiner is saying, in effect, that the wife can only be a witness, but can not assist him or be a representative for him — that he must choose one or the other. The examiner continues:

"If you want her to be a witness, I think it would be well if we would ask her some questions but what I want to know now is if you want to handle your own case here today. It is perfectly all right if you want to. I just want to make sure that you understand.

"A. Yes."

Reading the entire colloquy up to that point makes it clear that the witness did not really know what the examiner was driving at, but that, as an affable Hawaiian trying to be agreeable to authority, he accepted what the examiner had said without really understanding it. To continue, quoting from the transcript:

"MRS. COYLE: May I speak for him, please?

"HEARING EXAMINER: You mean now?

"MRS. COYLE: Yes, in a representative —

"HEARING EXAMINER: Do you want to be his representative?

"MRS. COYLE: No, represent his own self.

"HEARING EXAMINER: Is that all right with you, Mr. Coyle?

"CLAIMANT: Yes."

Mrs. Coyle, having in effect been previously told by the examiner's previous remarks that she was eligible to be a witness, but not a "representative," could hardly have said anything else; and plaintiff likewise.

It is evident to this Court from this colloquy, the preceding questions and answers, and the whole transcript, that Mrs. Coyle herself was not a well-educated person, that she did not understand the proceedings any more than Mr. Coyle did, but apparently had a somewhat better memory, and that, had she been allowed to sit by him and assist him, she could well have helped straighten out some of the facts which he failed to remember, remembered imperfectly, or explained incompletely.

The record only shows Mrs. Coyle's desire to be helpful to her husband, which the examiner peremptorily discouraged. In fact, when Mrs. Coyle stated that "knowing him so well I think I know him better than the doctor.", (Tr. 45), the examiner, instead of attempting to explore the significance of this claim by the one person who could know Coyle better than any doctor, simply says, "Possibly so," (Tr. 45) and then when Mrs. Coyle tries to explain why her husband is really unemployable, does not even allow her to finish, and interrupts her to ask when she moved to her present place (Tr. 45).

The examiner attempted near the beginning of the hearing (Tr. 19-21), but after he had made plaintiff and his wife understand that the wife could be a witness but not a representative, as above stated, to state the previous history of the case, and the issues and other technical aspects of the case. Any person acquainted with the average Hawaiian having the education indicated by either Mr. or Mrs. Coyle, would know that a great deal of the explanation would not be understandable to them. As a matter of fact, even a lawyer would find it difficult to understand all of the ramifications of the complicated statute, regulations, and procedure involved.

Incidentally, in the middle of the explanation, Mrs. Coyle evidenced difficulty in hearing what was going on, and asked to bring her chair up closer, which the hearing examiner permitted her to do, until he finished his explanation. After proceeding with further explanation, with technical and numerous three and four-syllable words (Tr. 20-21), the examiner then proceeded to secure the applicant's permission to file 42 exhibits! Although the examiner first went off the record to permit Mr. Coyle to examine the 42 exhibits and to decide whether to object to the admission of any of them, no specific time is shown by the record as to how long it took Mr. Coyle to examine these 42 documents. But some indication of the haste of the examiner in getting those exhibits in (and the obvious failure of the plaintiff to even read them — thereby refreshing his memory, if he could read some of the almost undecipherable handwriting, much less understand the exhibits) can be found from the fact that the hearing opened at 11:00 a.m. on May 24, 1967, and closed at 12:40 p.m., a period of one hour and 40 minutes. It would have taken longer than that just to read the 42 exhibits, even disregarding the poor handwriting. But this is not all: having, as this Court views it, by subtle suggestion or peremptory direction, discouraged Mr. Coyle from having his wife represent him, or be present to help him, and in spite of the fact that both Mr. and Mrs. Coyle had asked that she be present at his questioning, the examiner, after having gotten all the exhibits he desired into evidence, says this (R. 22):

"Q. Then I think we are ready to take your testimony, and I think while we are hearing from you, I will ask that your wife be seated outside and we will call you back when we need you. Is that all right with you? Did you answer `Yes'." (emphasis added)

"A. Yes.

Mrs. Coyle leaves hearing room."

Thus, after having excluded Mrs. Coyle, the examiner proceeds to question Mr. Coyle alone.

This type of tactics by a supposedly impartial examiner, who should have known by then that these parties who were not represented by counsel, needed help — even the little help each of them could give the other mutually — in this Court's view was so arbitrary (especially when considered in the light of the zeal with which this examiner sought to bring out every fact detrimental to plaintiff in his and his wife's testimony, and drew every possible inference against the plaintiff), as to constitute a denial of due process.

In trials of both civil and criminal cases, the actual exclusion of witnesses is largely discretionary and is not exercised unless one party expressly invokes the rule; even in criminal cases the Government is permitted to have one of its principal lay witnesses present to sit at counsel's table and advise counsel on the facts. But this supposedly unbiased examiner peremptorily excluded the wife, in spite of the clearly conveyed desire of both plaintiff and his wife that she be present to help and advise him.

Laudable as the examiner's attempt to shorten the proceedings and save money for the government might otherwise appear to be, this hardly comports with our present-day ideas of fairness in a hearing, administrative or judicial, where a party is not represented by counsel, and the same person is both inquisitor and judge.

An example of the biased manner in which the hearing was held, as far as plaintiff's side is concerned, occurs on page 24 of the transcript. The examiner (evidently unacquainted with the Hawaiian Homes Commission Act 1920), after getting the address in Nanakuli (which, by the way, is about 30 miles from the centers of urban activity where jobs could normally be expected to be available), asks:

"Q. Now, how much property do you have there?

"A. It's three quarters of an acre. It's Hawaiian Homesteads.

"Q. In order to get title did you have to do some work on the place? Did you have to clear it or do something to get the homestead rights?

"A. No, the wife filed (sic) in an application and we were called in to (inaudible) so the Commissioners called us and asked us if we wanted to (inaudible) the place.

"Q. I see."

Aside from the imperfections of this transcript, the very form of the question, seeking to bring out that plaintiff had to work to get title to the place, is typical of the examiner's attitude throughout. Title to the Hawaiian Homes Commission lease of the houselot (99 years at $1 per year) was in the wife.

The testimony of Mr. Coyle then follows, indicating that the leased land accepted contained an old home, which was remodeled to fit the needs of their large family — which was already on relief.

Then the examiner proceeds to question Mr. Coyle as to whether he has ever done any other work and elicits the fact that Mr. Coyle did service station work in Maile, part time:

"A. That was in '57 if I'm not mistaken. They did call me in Saturdays or Sundays or whenever the boss wanted a day off. * * *"

After the examiner points out that the record indicates that in 1956 plaintiff was credited with earnings of $166.88, the witness, having his memory thus refreshed, admits that this probably happened in about October to December, 1956.

This small amount of $166.88 earnings over a three-month period certainly bears out plaintiff's claim of availability only of part-time work, and only over week-ends or on special occasions. That this type of evidence as to availability of only occasional or part-time work does not prove his ability to engage in substantial gainful activity is — especially when the only previous experience and training of plaintiff was being in the army, where he advanced to Sergeant in charge of a group handling heavy construction equipment, and thereafter as a civilian working as a truck driver, general heavy-duty mechanic and oiler (Tr. 6), all heavy work — is clearly established by the authorities citied in plaintiff's brief, including the following cases:

Berry vs. U.S., 312 U.S. 450 [ 61 S.Ct. 637, 85 L.Ed. 945] (1941);

Meola vs. Ribicoff, 207 F. Supp. 658 (D.C.S.N Y 1962);

Pollak vs. Ribicoff, 300 F.2d 674 (2d Cir. 1962);

Popovich vs. Celebrezze, 220 F. Supp. 205 (D.C.W.Pa. 1963);

Austin vs. Celebrezze, 230 F. Supp. 256 (D.C.S.Texas 1964);

McClain vs. Gardner, 253 F. Supp. 559 (D.C.S.C. 1966);

Spivak vs. Gardner, 268 F. Supp. 366 (D.C.E.N Y 1966);

Leftwich vs. Gardner, 377 F.2d 287 (4th Cir. 1967);

Brandon v. Gardner, 377 F.2d 488 (4th Cir. 1967);

In this connection it is not even shown whether in each case plaintiff worked all day or just part of a day at a time, or what his rate of pay was.

The examiner then probed plaintiff's working part-time in 1965, tending fish tanks.

The evidence of working in fishtanks, coupled with a report that he worked only five days in one month is what the examiner refers to in his decision as also indicating plaintiff's ability to engage in substantial gainful activity, when — if the witness's statement is taken at its face value ( and there is no credible evidence to contradict it) — the witness proved he worked only part-time, on any one day, and not on consecutive days, that the job soon petered out, and that anyway he found himself physically unable to do the work in any steady manner. Moreover, there is no evidence that any other such jobs were available.

The witness then said he worked for "material" since 1954, on a chicken farm going out of business, at which he "tore down houses, chicken houses, and whatever lumber and material he wasn't taking with him, I got that, too."

It may be that inclement wheather on the mainland requires that chicken houses be of substantial construction, but anyone who knows the requirements for a chicken house in this year-round warm climate, knows the flimsy type of construction used. Dismantling and transporting by truck these light chicken-wire frames, and building at his home local types of chicken coops and pens for pigs, ducks, etc., would hardly indicate ability to engage in substantial gainful activity. Moreover, if dismantling chicken houses for leftover material can even be considered a job, there is a total lack of any evidence that paying jobs of this type were ever available anywhere on the Island. Of course, the Hawaiian Homes Commission Act, quoted ante, restricted the use of plaintiff's wife's houselot to residence and non-commercial purposes, which confirms the plaintiff's testimony.

The foregoing indicates the type of so-called "evidence" used by the examiner to reach his conclusions that during the eligibility period in question — up to June 30, 1959, the end of the last quarter in which claimant fulfilled the statutory eligibility requirement of having 20 quarters of coverage out of the 40 quarter period ending with the quarter in which the period of disability begins, which date is not in dispute (Tr. 6) — plaintiff was able to engage in a substantial gainful activity. Again, this Court agrees with the plaintiff's authorities cited ante, to the effect that attempts of this nature to work which were unsuccessful are not evidence of employability or availability for even light employment. In this connection this Court takes judicial notice of certain local conditions which should have been considered by the examiner, and which would have been clear from a mere view of the area, and which the plaintiff's testimony also demonstrates:

(1) In the flat plains of the Nanakuli area, the so-called "rocks" in most places would be smaller stones or pebbles, not of any substantial size or weight. Plaintiff's testimony that his "Dad and I and wife, sister-in-law and her husband and children" would go out on weekends and help and that "during the week, we'd do what we can, chopped down the brush and burn it," and that they would "Rake the ground and level it up, take the rocks and build a stone wall" and "We just used the rake and raked the rocks * * * " etc., shows that the so-called "rocks" were pebbles and stones small enough to be "raked." (Tr. 35).

(2) As to raising flowers, the evidence is that the flowers consisted of plumeria, a plant somewhat similar to the cactus family, which the Court can and does take judicial notice will often sprout from itself if a branch is just thrown on the ground, and which requires no "cultivation". The only mention of any flowers other than plumeria, in the evidence, so far as this Court can find, is the reported testimony of Mr. Coyle mentioning "cornflower":

"Q. Plant what, a garden?

* * * * * *

"A. Plumeria and cornflower — different plants." (Tr. 36).

(3) This Court knows that "cornflower" isn't used in Hawaii for making leis, if it is cultivated at all. The reporter obviously means "crown flower," defined in Webster's Third International Dictionary as "a large shrub (colotropis, gigantea) with white and pale lavender flowers used for leis in Hawaii." Evidently the examiner did not know or try to find out how much work would be involved in planting such shrubs, which, like plumeria, do not have to be replanted every year, and do not need much, if any, "cultivation," once they start growing. On the other hand, Exhibit 17, a report by the Work Evaluation Team of the Department of Social Services of the State of Hawaii, much relied upon by the examiner in reaching his conclusions, states that (in March 1960) (Tr. 90):

"* * * More recently, since moving to Nanakuli, he has acquired a renewed interest in life including vocational as he is reportedly cleaned up the 3/4 acre plot of land he acquired through the Hawaiian Homestead Commission. He wants to be a farmer raising poultry and flowers for the lei business." (Emphasis added; note again the fact that Mrs. Coyle, not Mr. Coyle, owned the houselot lease),

and that "plaintiff is using the homestead land in planting plumeria for the flowers that he hopes to sell" (emphasis added). Evidently the crownflowers or any other plants (if there were others, and the evidence shows none) were so insignificant as not to be worth mentioning in this report.

The Hearing Examiner's Decision, dated June 12, 1967, (Tr. 5) states, among other things:

"* * * On April 27, 1965 he filed his third application. The record in connection with his previous applications was reviewed; additional evidence was considered; and it was determined that his impairment was not of sufficient severity to preclude his engaging in substantial gainful activity at any time when he still met the statutory earnings requirement. * * *"

The Examiner's findings also include the following (Tr. 8):

"Upon consideration of the entire record, the Hearing Examiner finds, pursuant to sections 216(i)(1) and 223(c)(2) of the Social Security Act in effect prior to amendment in 1965 and as amended in 1965, that the claimant has not established that at any time prior to July 1, 1959 he was under a `disability', that is, unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment, or combination of impairments, which could be expected to be of long-continued and indefinite duration or which had lasted or could be expected to last for a continuous period of not less than 12 months. * * *"

As indicated in this decision, there is no substantial evidence to support these findings. Rather, the Court finds that the evidence clearly establishes exactly the contrary, from the entire record.

At Tr. 9 the examiner says:

"* * * The claimant's activities on his own farm in 1959 and 1960 clearly demonstrate his ability to engage in working activity. He played a significant role in cleaning up and improving the three-quarter acre plot. * * *" (Emphasis added.)

The "farm" was not "his own," it belonged to his wife; and it was not a farm — it was a houselot; and for the examiner to rely upon this so-called "farm" activity, along with others similarly flimsy indications such as: "Flowers were planted to be grown for sale," and the possibility that there would be a "fuller crop the next year," etc., as evidence of ability to engage in substantial gainful activity, is totally unjustifiable.

Exhibit 17 (Tr. 92) says that,

"Dr. Nadamoto states in his report that this man can work full time on light work but not to stand or walk for prolonged periods and he is not to do any heavy lifting, * * * Actually, Mr. Coyle has already started to do quite a bit of work on his own farm." (Emphasis added).

and that he was " reportedly working quite continuously in raising poultry and flowers" (emphasis added) and felt "better after working up a good sweat"; that as of August 31, 1960, he was able to do his work on his farm (Tr. 94); including pick and shovel work (Tr. 94); and that as of January 30, 1961 (Tr. 95) it was thought he should be able to "tolerate" employment which requires standing and walking "about half of his walking time." (Emphasis added.)

Raising a few chickens, ducks, pigs and rabbits for home consumption is, again, hardly an indication of employability, especially when he had a wife and several children to help do these small, household chores, as indicated by the same Exhibit 17:

"* * * as his children are growing and they would be trained to do most of the chores around the place." (Tr. 93)

"He has children who should be able to help one way or another." (Tr. 94)

"* * * Several home visits were made during this period in order to evaluate his farm which included raising some poultry * * * The operation is on a small scale." (Emphasis added.) (Tr. 96);

"Working up a sweat" around home in the hot, humid Nanakuli weather, would be very easy and natural. As for the "pick and shovel work", even an invalid or cripple could engage in this occasionally, depending on how, and for how long he did it, the size and weight of the pick and shovel, and the kind of work done therewith, and still not be able to engage in substantial gainful employment at full time.

Exhibit 17 (Tr. 90) concerning "Personal Family Background", contains no statement as to who made the report, indicates no cross-examination by the plaintiff, and no calling to Coyle's attention during the examination, of many of the statements therein until after the decision was rendered by the examiner; hence Coyle, ignorant of their significance, had no real opportunity to answer or explain many of the statements in Exhibit 17, which is so heavily relied upon by the examiner.

There are many reports and exhibits in the transcript which refer to the claimant's disabling physical and mental condition. The examiner mentions the disabilities in his report, but disregards every medical finding and every inference therefrom favorable to plaintiff, in order to reach a conclusion adverse to plaintiff's claim of disability.

The examiner himself specifically finds (Tr. 6-7):

"* * * In the period 1956 to 1959 he sought work as a custodian in schools in Honolulu, but allegedly was turned down after being interviewed by various school principals because of his low back condition. * * * In the years 1960 to 1963 the claimant made various applications for jobs, including going to an oil refinery to ask for any job available, particularly that of guard or custodian. He also applied at service stations in his immediate area for work as attendant, but all of his efforts were unsuccessful." (Emphasis added.)

Thus, using plaintiff's unsuccessful efforts to secure employment as evidence to show either ability to engage in substantial gainful employment, or availability of such jobs to him, is obviously a non-sequitur. In the face of the last mentioned findings, the examiner immediately goes on to say:

"It is well established that after moving to his present home the claimant and members of his family worked together cleaning up and clearing the land. This included chopping down and burning brush, clearing away rocks, and building dry rock walls. The claimant and others used rakes to smooth the ground, and eventually half to three-quarters of the property was sufficiently developed so that it could be cultivated. Flowers were planted to be grown for sale. The first sales were in 1965, and this year there was a fuller crop and increased sales. * * *" (Tr. 7) (Emphasis added.)

The examiner gives claimant no credit for trying in spite of his uncontradicted testimony as to his aches and pains, to clean up the houselot, but puts great reliance on the alleged facts that he "chopped down * * * brush," "cultivated" the land for raising flowers, "cleared rocks" (which really consisted of "raking small stones") etc., all of which, as shown ante, utterly fail to show ability to engage in substantial gainful activity.

Viewed in the light most favorable to defendant, plaintiff's alleged physical ability to hold a full-time job depended upon his being able to do "light work" (nowhere defined by the examiner or the evidence, and not shown by any evidence to have been available) while "standing and walking to the extent about half of his walking time," and that "the limitations imposed by Dr. Nadamoto on carrying should be observed." (Tr. 95 — emphasis added.)

A caseworker reported regarding his findings for the period 1/16/61 to 3/4/63, and Dr. Nadamoto's views, as follows:

"After this case was transferred to me, contact was made with Mr. Coyle and in view of his continuing complaint about pain in his back and cramps in his legs, current evaluation was obtained through Dr. Nadamoto, Orthopedic Surgeon. Dr. Nadamoto indicated disability as post operative status, laminectomy and fusion from L4 to S1. He is restricted from lifting heavy objects or any objects for sustained period of time. Restrictions included the lifting maximum of 10 lbs. for any length of time. * * * when a job order appeared for a janitor at the Naval Air Station at Barbers Point. Mr. Coyle was referred to this job but was not hired after he told the employment office there that he is unable to drive at night because his eyes are bad and that he is unable to lift or bend. * * * indicating that the janitorial work there perhaps may be beyond Mr. Coyle's ability. This job entails some heavy lifting. * * * he began to complain of epileptic seizures once again. * * * Indications, however, are that a car is available and he has been driving as I have seen a 1951 Chevy two-door sedan in his yard which he said was given to him by a relative. * * * treatment at Queen's OPC resulted in good control of his seizures so long he continues to take his medication. She said at this time that Mr. Coyle fractured both ankles recently and may be hospitalized shortly for continuing treatment. She said that he also complained of a slip disc which is affecting his arm movements. * * *" (Tr. 96-97; emphasis added.)

In the light of this man's work history, including actual or possible or suspected epileptic seizures — whether controlled or not by medication —; hysteria; back or spinal injuries and weaknesses; medically certified limitations on walking or standing more than half of his working time, or lifting more than ten pounds, or lifting heavy objects; his doubtful ability to operate a motor vehicle safely either to himself or his employer; and other indications of disability in the transcript, this Court believes that no employer would hire this type of individual for any substantial time, if at all. The few instances of his working for an employer indicate that he was unable to hold any of the jobs full time for any substantial and consecutive period. There is no substantial evidence as to the actual availability of any full-time job or work opportunity that could, in the light of modern requirements for employment, be considered as within the very limited abilities of claimant as indicated by the transcript. Thus, whatever evidence there was indicated exactly the opposite of the conclusion reached by the examiner. The mere fact that the claimant applied unsuccessfully for various jobs, or tried unsuccessfuly to do various odd jobs, in spite of his disability, or did the part-time and occasional activities indicated herein or in the transcript, is not evidence, either that he was able to engage in substantial activity as defined by the authorities, or that jobs of the type that he could actually perform were available at any time, anywhere. (See authorities cited ante).

In this connection, the Court finds that the mere expressions of opinion by several physicians (all of the physicians who examined or treated this claimant being by no means unanimous on this point) that claimant was able to do light work or any work, are insufficient to substantiate such conclusion, in the absence of other evidence, and contrary to the uncontradicted direct testimony of both claimant and his wife. (See authorities cited ante.)

Last, but not least, this Court finds that the transcript conclusively indicates that all of the findings of medical and non-medical physicians and personnel of the federal or State authorities dealing with the present claimant's condition (other than Coyle and his wife, who testified consistently as to his inability to work because of his low back condition), are based wholly or in very substantial part, in the later demonstrated clearly erroneous assumption that there had been complete fusion and alleviation of the low back condition in the area L4-L5-S1. The later uncontradicted medical evidence conclusively shows that there were, during the years 1956-1965, several operations necessitated by non-fusion in that area, and that the low back condition had not in fact been alleviated and the fusion had not taken place, even as late as the operation of December, 1965, by Dr. Dodge.

To this Court it seems clear that medical opinions rendered from 1956 to as late as the middle of 1965 were based on this demonstrated erroneous medical conclusion that there had been fusion. The findings of the examiner, which are obviously based on the earlier clearly erroneous and non-medical conclusions of physicians and investigators, unjustifiably disregard this later evidence.

For the foregoing reasons this Court finds that there is no substantial evidence to support the examiner's conclusions, and that the evidence, on the contrary, supports the plaintiff's contentions conclusively.

This Court could remand the case for a new or further hearing, but believes that this plaintiff has suffered enough from the errors of physicians, investigators and examiners, and should not be subjected to any further delay and frustration.

Therefore, pursuant to 42 U.S.C.A. § 405(g), it is ordered that judgment be entered, upon the pleadings and transcript of the record, reversing the decision of the Secretary, and in favor of the plaintiff.

The foregoing will constitute the court's findings of fact and conclusions of law.

A form of judgment in conformity with this decision will be prepared by plaintiff's counsel, submitted to defendant's counsel, with five days for approval as to form, and if there is objection as to the form, the Court will set a hearing for settlement of such form.