Petition — Melia v. Califano

| 7 Supreme Court, U. S.

| FILED

APR 11 1978

IN THE | MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

771448

Ca /; bade st

DAVID MATHEWS, Secretary of Health,

Education & Welfare

Petitioner.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

FIFTH CIRCUIT

TUCK R. CHAPIN, INC.

815 Main Plaza Building

San Antonio, Texas 78205

Counsel for Petitioner

IN THE

Supreme Court of the United States

EDGAR H. MELIA,

Petitioner.

V.

DAVID MATHEWS, Secretary of Health,

Education & Welfare

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

FIFTH CIRCUIT

TUCK R. CHAPIN, INC.

815 Main Plaza Building

San Antonio, Texas 78205

Counsel for Petitioner

INDEX

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Jurisdiction |

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Statutes and Regulations Involved .....

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Reasons for Allowance of the Writ

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CASE CITATIONS

National Labor Relations Board v. A. S. Abell

Co., 97 F.2d 951, C.C.A. (1938)

P. R. Mallory & Co. v. National Labor Relations

Board, 411 F.2d 948,C.A.7(1969). .... .

IN THE

Supreme Court of the United States

EDGAR H. MELIA,

Petitioner.

*

DAVID MATHEWS, Secretary of Health,

Education & Welfare

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

FIFTH CIRCUIT

The Petitioner, EDGAR MELIA, prays that a writ of

certiorari issue to review the judgment of the Court of Appeals

of the Fifth Circuit for the United States rendered and man-

dated in these proceedings on January 12, 1978.

The opinion of the Fifth Circuit Court of Appeals, unre-

ported, appears at Appendix A, infra, p. 8. The opinion of

1

the District Court for the Western District of Texas, San

Antonio Division, appears at Appendix A, p. 9. The Court

of Appeals affirmed the decision of the District Court.

JURISDICTION

The Judgment of the Court of Appeals of the Fifth

Circuit was handed down on December 21, 1977, mandated on

January 12, 1978, and filed with the U.S. Clerk of the Western

District of Texas, San Antonio Division on the 16th day of

January, 1978. See Appendix A, p. 8, infra. This petition for

certiorari was filed less than 90 days from the date aforesaid.

The jurisdiction of this Court is invoked under 28 U.S.C.

Section 1244(3).

QUESTIONS PRESENTED

Whether the Fifth Circuit Court of Appeals erroneously

applied the substantial evidence doctrine, relative only to ques-

tions of fact, to the petitioner’s question of law concerning the

proper legal standard applicable to Petitioner’s claim against

the Social 8 ity Administrati

STATUTES AND REGULATIONS INVOLVED

Title 20, Code of Federal Regulations, Section 404.1506

(a) (1) Subpart P, Appendix, Sections 1.08 and 1.09

Title 20, Code of Federal Regulations Section 404.1506

(a) (1) and (2)

Regulation (4), Section 404. 1524 (e)

Title 2, Social Security Act

Social Security Act, Section 216(i) and 223

Social Security Act, Section 223(d) (1) (2)A and (3)

Social Security Act, Section 202 E or F

42 USC, Section 405 (8)

A definition of the substantial evidence rule:

2

Evidence furnishing a substantial basis of fact from which

the fact in issue can reasonably be inferred. National Labor

Relations Board v. A.S. Abell Co., 97 F.2d 951, C.C.A. (1938).

STATEMENT OF FACTS

During the Korean Conflict, Appellant, a member of the

United States Armed Services, was exposed to extremely cold

temperatures and suffered severe frostbite. As a result thereof,

it was necessary that large portions of Appellant’s feet be

amputated, and that was done surgically. Thereafter, Appellant

returned to civilian life and sought employment. Appellant dis-

covered, however, that he was unable to retain gainful em-

ployment, and thereafter, sought disability benefits under the

Social Security Act. All other qualifications and requirements

under said Act having been met, Appellant sought to prove

his disability to the Social Security Administration and among

other grounds offered medical evidence of the anatomical de-

formity of his feet in order to gain disability benefits. Such

benefits were denied to Appellant and all administrative reme-

dies were pursued by him and exhausted without such benefits

being granted. When all administrative avenues had been de-

pleted, Appellant filed his complaint in the United States Dis-

trict Court for the Western District of Texas as hereinabove

stated. After considering the Motion for Summary Judgment

and the responses, the trial court granted Defendant’s Motion

for Summary Judgment hence the Appeal.

REASONS FOR ALLOWANCE OF THE WRIT

The Secretary of Health, Education and Welfare has set

out in regulations at 20 CFR 404.1506, 33 Federal Register

11749, August 20, 1968, and in the Appendix thereto, an elab-

oration of the test for permanent and total disability con-

tained in the Social Security Act. The applicable section of the

Social Security Act in Section 223 (d) (1) (2) A and (3) and this

provides in part.

(d)(1) The term disability means:

(A) inability 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 which has lasted or can be ex-

pected to last for a continuous period of not less than

12 months.

Subpart P of 20 Code of Federal Regulations Section

404.1506 provides in part:

The Listing of Impairments describes, for each of

the major body systems, impairments which—

(1) are of a level of severity deemed sufficient to

preclude an individual from engaging in any gainful

activity; and .

(2) are expected to result in death or to last for a

continuous period of not less than 12 months.

The Appendix of Subpart P of 20 Code of Federal Regu-

lations reads in part:

1.09 Amputation of; or anatomical deformity of (i.e.

loss of major function due to degenerative changes

associated with vascular or neurological deficits, trau-

matic loss of muscle mass or tendons. . .)

B. Both Feet;

Reading the above statute in the definitive light of the

regulations promulgated by the Secretary, one is confronted

with the clear, unambiguous and definitive statement that,

where a claimant has the loss of major function due to trau-

matic loss of muscle mass or tendons to both feet, his im-

pairment is of such a severity as to preclude him from engag-

ing in any gainful activity; and this condition will last for a

continuous period of not less than twelve months. This is the

proper standard by which petitioner was entitled to have his

impairment judged. On the other hand, the Administrative

Law Judge, who heard Petitioner’s claim for benefits, applied

4

a more rigid standard in the case of Petitioner. The standard

applied was whether the Petitioner was able to engage in sub-

stantial gainful employment as it appears without elucidation

in the Social Security Act, Section 223(d)(1)(2)A and (3).

The application of this more rigid standard flies in the face of

the lawful authority of the Secretary to prescribe criteria by

regulation which are of a severity sufficient enough to pre-

clude a person from engaging in substantial gainful activity.

This is clearly an incorrect application of the legal stand-

ard by which to judge a claimant with an anatomical deform-

ity of both feet, the category into which the Petitioner fits.

The United States District Court for the Western District

of Texas, in its judgment of the case, passed over this error

by applying the substantial evidence doctrine which applies to

issues of fact in administrative proceedings. P.R. Mallory & Co.

v. National Labor Relations Board, 411 F.2d 948, C.A. 7(1969).

On appeal to the Fifth Circuit the Petitioner raised a

question of law: namely, whether the administrative Judge,

who ruled on the Petitioner’s claim, applied the correct legal

standard as set out in the above regulations. In response to

this question of law, the Fifth Circuit affirmed the order grant-

ing the United States government’s motion for summary judg-

ment entered by the United States District Court for the West-

ern District of Texas, San Antonio Division. This order stated

that, “the decision of the Secretary is supported by substan-

tial evidence.” This statement leads the Petitioner to believe

that his question of law was answered by a doctrine applicable

only to questions of fact, i.e., the substantial evidence doctrine.

This puts the Fifth Circuit Court of Appeals squarely against

the decisions of other Courts of Appeals which have decided

that the substantial evidence rule is applicable to questions of

fact. P.R. Mallory & Co. v. National Labor Relations Board,

411 F.2d 948, C.A. 7(1969).

This is an extremely important issue to be decided by the

5

—

Supreme Court of the United States because, otherwise Dis-

trict Courts are allowed to summarily apply a doctrine relative

only to questions of fact to question of law, a practice which

borders ominously upon a denial of due process and is clearly

against the existing case law on the substantial evidence

doctrine.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Court of Appeals for

the Fifth Circuit of the United States.

Respectfully submitted,

TUCK R. CHAPIN, INC.

—

ny uch E. &

Tuck R. Chapin

815 Main Plaza Building

San Antonio, Texas 78205

Counsel for Petitioner

APPENDIX A IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH DISTRICT

P

ee No. 77-2424

Opinion Rendered in the United States Court of Summary Calendar*

Appeals for the Fifth Circuit vk a 8

Opinion Rendered in the United States District EDGAR H. MELIA,

pate. | Plaintiff-Appellant,

| versus

JOSEPH CALIFANO, IR., Secretary of

Health, Education and Welfare,

Defendant-Appellee.

Appeal from the United States District Court for the

Western District of Texas

(December 21, 1977)

Before THORNBERRY, RONEY and HILL, Circuit Judges.

PER CURIAM: AFFIRMED. See Local Rule 21.

Costs are taxed against plaintiff-appellant.

ISSUED AS MANDATE: JAN. 12, 1978

A true copy

Test: EDWARD W. WADSWORTH

Clerk, U.S. Court of Appeals, Fifth Circuit

By

Deputy

January 12, 1978

' *Rule 18, 5th Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company

of New York, et al., 6th Cir. 1970, 431 F.2d 409, Part I.

1/See N.L.R.B. v. Amalgamated Clothing Workers of America, 5th Cir.

1970, 430 F.2d 966. *

7 8

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

EDGAR H. MELIA

VS.

DAVID MATHEWS

Secretary of HEW

SA-75-CA-259

— eee ee eet Nee”

ORDER GRANTING DEFENDANT'S MOTION

FOR SUMMARY JUDGMENT

On the 29th day of April, 1977, came on to be heard

Defendant’s Motion for Summary Judgment. After a review

of the motion, its supporting brief, and the entire administra-

tive record in the case, the Court concludes that the decision

of the Secretary is supported by substantial evidence. Since

there is no question of material fact and the Defendant is en-

titled to judgment as a matter of law, the Court grants

Defendant’s motion for summary judgment. Since Plaintiff

is not entitled to judgment as a matter of law, the Court

denies Plaintiff’s motion for summary judgment.

SO ORDERED this 11th day of May, 1977.

UNITED STATES DISTRICT JUDGE

APPENDIX B

Motion for Summary Judgment

Memorandum in Support of Defendant’s

Motion for Summary Judgment .

Plaintiff’s Response to Defendant’s

Motion for Summary Judgment .

Brief in Support of Plaintiff's

Response to Defendant’s Motion

for Summary Judgment .

Affidavit of Edgar H. Melia .

10

Page

13

24

30

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

EDGAR H. MELIA,

Plaintiff

V.

DAVID MATHEWS,

Secretary of Health,

Education and Welfare

Defendant

CIVIL ACTION NO.

SA-75-CA-259

ee Ne Ne ee ee ee ee ee ee

MOTION FOR SUMMARY JUDGMENT

Now comes David Mathews, Secretary of Health, Educa-

tion and Welfare, Defendant herein, by and through the United

States Attorney for the Western District of Texas, and Archie

Carl Pierce, Assistant United States Attorney for the Western

District of Texas, and pursuant to Rule 56 of the Federal Rules

of Civil Procedure, moves this Honorable Court to enter sum-

mary judgment in favor of the Defendant, on the grounds

that there is no genuine issue of material fact in this cause

of action, and the Defendant is entitled to judgment as a

matter of law.

This motion is supported by the attached Memorandum

Brief and the administrative record filed herein.

Respectfully submitted,

JOHN E. CLARK

UNITED STATES ATTORNEY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

EDGAR H. MELIA,

)

)

Plaintiff

ve. CIVIL ACTION NO:

DAVID MATHEWS, ) SA-75-CA-259

Secretary of Health, )

Education and Welfare )

Defendant )

MEMORANDUM IN SUPPORT OF DEFENDANT'S ~

MOTION FOR SUMMARY JUDGMENT

Statement of the Case

Plaintiff brought this action pursuant to Section 205(g)

of the Social Security Act, as amended (42 U.S.C. Section

405 (g)), to obtain judicial review of a “final decision” of the

Secretary of Health, Education, and Welfare, denying his claim

for disability insurance benefits.

ADMINISTRATIVE PROCEEDINGS

Plaintiff filed an application! / for a period of disability and

for disability insurance benefits on July 5, 1973 (Tr. 79-)82),

alleging that he became unable to work in 1962, at age 32.

The application was denied initially (Tr. 85-86) and on recon-

sideration (Tr. 89) by the Bureau of Disability Insurance of

disability examiner, had found that plaintiff was not under a

disability (Tr. 83, 88). The administrative law judge, before

whom plaintiff appeared, considered the case de novo, and on

May 6, 1975, found that plaintiff was not under a disability

starting on or before June 30, 1967, when he last had the

necessary insured status (Tr. 5-9). The administrative law

judge’s decision became the final decision of the Secretary of

Health, Education, and Welfare, when the Appeals Council

approved the decision on August 12, 1975 (Tr. 33.

APPLICABLE PROVISIONS OF THE

SOCIAL SECURITY ACT

(See Attached Appendix A“)

ISSUE

The only issue before the Court is whether the final de-

cision of the Secretary is supported by substantial evidence.

STATEMENT OF FACTS

Plaintiff last met the statutory earnings requirement on

June 30, 1967 (Tr. 8, 90). Therefore, he must establish that

he was under a disability (within the meaning of the Act),

prior to the expiration of his insured status on June 30, 1967.

He has a high school (commercial course) education, plus

a course in drafting for 1 year and had worked in various

jobs in a clerical capacity and as a bookkeeper, clerk-typist,

machine wrapper and messenger (Tr. 22-23, 26, 47-48). In his

application filed on July 5, 1973, he alleged inability to work

since 1962, at age 32, because of ulcers, anxiety reaction, frost-

bite on both feet and no toes (Tr. 79-82). The Secretary found

that plaintiff had frostbite and loss of his toes in 1950, rem-

edial surgery for duodenal ulcers in 1959, and an anxiety re-

action that manifested itself in a severe state in 1971 long

after he last met the insured status. He was unable to perform

heavy manual labor or work requiring long standing or exten-

sive walking, but had residual capacity to perform his cus-

tomary work as a bookkeeper, clerk-typist, or draftsman, and

was not under a disability (within the meaning of the Act),

prior to the expiration of his insured status ou June 30, 1967

(Tr. 7-9).

Clinical records of the United States Naval Hospital,

Bethesda, indicate that plaintiff was admitted on December

2, 1950, with a diagnosis of compound fractures, comminuted

of the right tibia and fibula, sustained when he was hit by a

small missile in the lower right leg in military action (Tr.

49-51). On February 25, 1951, the toes of the left foot were

amputated. On March 7, 1951, an open amputation was per-

formed through the distal third of the right forefoot, and skin

grafts were applied to the surgical area of the left foot. On

March 15, 1951, skin grafts were also applied to the right

foot. He was discharged from service in September 1951.

Plaintiff was examined by the Veterans Administration,

Baltimore, in November 1951, in connection with his claim

for compensation (Tr. 52-55). He had a previous history of a

fracture of the right leg by a bullet, and amputation of the

toes of both feet due to frostbite. Examination revealed that

the right leg appeared to be well healed, was ½ inch shorter

than the left, had good general alignment and no excessive

bowing. The toes and some of the metatarsal bones were ab-

sent from the right foot. The left foot revealed amputated

toes at the metatarsal heads. There was good motion of the

left ankle joint. The right ankle joint indicated the dorsiflexion

was limited to approximately the normal standing position.

Records of the Veterans Administration, Philadelphia,

reveal that plaintiff was admitted from August 20 to Septem-

ber 11, 1958, for complaint of left upper quadrant pain (Tr.

60-61). He had a past history of a duodenal ulcer and did well

on a bland diet. During hospitalization he was treated with a

sippy diet and medication, improved, became free of symptoms

14

(asymptomatic) and regained his strength and optimism.

Diagnosis was active duodenal ulcer with bleeding.

On August 31, 1959, he was admitted to the Veterans

Administration Hospital, Philadelphia, with complaint of ab-

dominal pain relieved by alka-seltzer, after having been in-

volved in heavy lifting and not following his diet (Tr. 56, 59,

115-118). Examination revealed a deformed duodenal cap and

several active ulcers. Diagnosis was duodenal ulcer disease

with upper gastrointestina! bleeding. Remedial surgery (hemi-

gastrectomy and vagotomy) was performed and by September

19, 1959, the surgery was well healed and he was discharged

on October 16, 1959.

Dr. David Gelfand, internist, performed an examination

and evaluation of plaintiff in September 1962 (Tr. 65, 71).

He concluded that plaintiff had significant impairment of the

feet, but could perform substantial gainful activity with the

following restrictions: no running, climbing one flight at a

time, walking one block at a time, standing 10 percent of the

time, avoiding high and low temperatures, humid and wet

places, mechanical and electrical hazards, moving objects,

cramped quarters and high places. The doctor thought that

further treatment should result in significant functional im-

provement.

Dr. Stephan A. Christides, orthopedic surgeon, performed

an examination and evaluation of plaintiff in September 1962

(Tr. 66-70). The doctor concluded that plaintiff had trouble

with the right foot because the skin graft to the plantar sur-

face of that foot did not give adequate padding for weight

bearing every time he walked more than a few blocks. The

doctor advised plaintiff to have a skin flap from the opposite

leg to the plantar surface of the right foot so he would have

good padding and be able to walk without discomfort. Plain-

tiff believed he could continue with his training in electronics

15

so he could get a sitting job and start working by the end of

the year 1962.

Plaintiff was admitted to the Veterans Administration

Hospital, Philadelphia, from January 22 to March 22, 1968,

for dental services and anxiety reaction (Tr. 111-114). His

anxiety was treated with Librium with improvement and he

was discharged with no medication.

A psychiatric examination of plaintiff by Veterans Ad-

ministration, Washington, D.C., in November 1971 for rating

purposes, concluded that plaintiff was mentally competent and

oriented for time, place and person, and was also competent

to handle financial funds (Tr. 120). He was deemed to have

an exacerbation of his anxiety (emotional) reaction.

Plaintiff was admitted to the Veterans Administration

Hospital, Washington, D.C., from January 20, to February

28, 1972, for evaluation and observation relative to his anxiety

over his 14 year old son and difficulties in dealing with his wife

(Tr. 119). Examination revealed that plaintiff was alert,

oriented and cooperative, and manifested slight depression.

There were no psychotic signs. Physical examination, except

for past surgery, was not remarkable. He was treated on

Elavil and Librium with a quick improvement in his depres-

sive symptoms and a more active display of his passive agres-

sive character in his dealings with his wife and son, and was

given some time to work through his relationships with some

resolution. With remission of symptoms he was discharged,

medically deemed competent.

After his alleged date of inability to work, plaintiff con-

tinued to be ambulatory and traveled about outside without

assistance (Tr. 79), drove his c, ran errands to the store,

watched the children while his wife was out working (Tr. 27),

worked around the house, took care of his own personal needs,

cooked and went fishing (Tr. 48). He testified that he did

some bookkeeping with an automobile sales company for about

16

3 months in 1968 and quit of his own accord (Tr. 22), that

he did telephone land sales work for about 3 months in 1974

but was laid off with five or six other employees when the

economy got bad (Tr. 22-23). He also testified that he can do

any kind of clerical work, also bookkeeping, and has applied

to Civil Service for light fulltime work (Tr. 24-25).

ARGUMENT

I..The Secretary’s Decision That Plaintiff Is Not

Entitled To Disability Insurance Benefits Is Sup-

— Substantial Evidence And Must Be

The limited role of the Court on judicial review under

42 U.S.C.A. 405(g) is to determine whether there is substan-

tial evidence in the entire record to support the fact findings

or decision of the Secretary, as the trier of facts, and not to

reweigh the evidence, or try the issues de novo, or substitute

the judgment of the Court for that of the Secretary. Good-

man v. Richardson, 448 F.2d 388 (5 Cir., 1971). If supported

by substantial evidence, the Secretary’s findings are conclusive

and must be affirmed. Richardson v. Perales, 402 U.S. 389, 91

S.Ct. 1420, 28 L.Ed.2d 842, 846 (1971); Hemphill v. Wein-

berger, 483 F.2d 1137 (5 Cir., 1973).

Substantial evidence is more than a scintilla, less than a

prepondenance, and is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion. It must

do more than create a suspicion of the existence of the fact

to be established, but no substantial evidence” will be found

only where there is a “conspicuous absence of credible choices”

or “no contrary medical evidence.” Hemphill v. Weinberger,

supra; Payne v. Weinberger, 480 F.2d 1006 (5 Cir., 1973).

The concept of disability is defined in the Social Security

Act, 42 U.. C., sections 416 (i) (1) and 423 (d) (1) (a), in rele-

vant part as inability to engage in any substantial gainful

17

r

activity by reason of any medically determinable physical or

mental impairment which. . has lasted. for a continuous

period of not less than 12 months.“

Section 423 (d) (3) further defines physical or mental

impairment“ as meaning an impairment that results from

anatomical, physiological, or psychological abnormalities which

are demonstrable by medically acceptable clinical and labor-

atory diagnostic techniques.”

The Secretary found that plaintiff had frostbite and loss

of his toes in 1950, remedial surgery for duodenal ulcers in

1959, and an anxiety reaction that manifested itself in a severe

state in 1971 long after he last met the insured status. He was

unable to perform heavy manual labor or work requiring long

standing or extensive walking, but had residual capacity to

perform his customary work as a bookkeeper, clerk-typist, or

draftsman, and was not under a disability (within the mean-

ing of the Act), prior to the expiration of his insured status

on June 30, 1967.

The medical evidence of record indicates that plaintiff did

suffer frostbite and surgical loss of the toes of both feet in

1950. He had remedial surgery by way of a hemigastrectomy

and vagotory in 1959 for duodenal ulcers. The anxiety reaction

apparently manifested itself in a severe degree in 1971, a date

long after he last met the statutory insured status. Plaintiff

was able to stand and walk short distances, and his ulcer con-

dition was reasonably well controlled with a regulated diet

after the remedial surgery. He traveled about aside without

assistance, drove his car, went shopping to the store, watched

the children, cooked, took care of his own personal needs and

went fishing. He testified that he can do any kind of clerical

work, also bookkeeping and has applied for light full time

work. The evidence indicated that on or before June 30, 1967,

plaintiff had residual capacity to perform light and sedentary

work in which he was experienced such as a clerk-typist or

18

bookkeeper, or draftsman in which he had at least a one year

training course.

The Courts have held in numerous cases that if an insured

individual suffers from an impairment which precludes heavy

work, or work which requires certain kinds of physical exer-

tion but it is shown that he can engage in other light forms

of substantial gainful activity, a “disability” within the mean-

ing of the Act has not been established. Hicks v. Flemming,

302 F.2d 470 (5 Cir., 1962), cert. denied 371 U.S. 868 (1962);

Breaux v. Finch, 421 F.2d 687 (5 Cir., 1970; McKay v. Rich-

ardson, 363 F. Supp., 379 (N.D. Texas, 1973), aff’d 491 F.2d

1271 (5 Cir., 1974).

The mere presence of a disease or an impairment is not

disabling per se. The plaintiff must show that he is so func-

tionally impaired that hé is precluded from engaging in sub-

stantial gainful activity. Blalock v. Richardson, 483 F.2d 773

(4 Cir., 1972) ; Fisher v. Weinberger, CCH UIR Vol. 1, Fed.

para. 17,869 (E.D. Tenn., January 3, 1974), aff'd 506 F.2d

1400 (6 Cir., 1974).

Plaintiff drew service connected benefits from the Veter-

ans Administration. A decision by any other governmental or

nongovernmental agency that an individual is or is not under

a disability within the meaning of another statute or contract

is not determinative of the question of whether such individual

is under a disability within the meaning of the Social Security

Act, and is not binding on the Secretary (20 C.F.R. 404.1525).

Entrekin v. Weinberger, 477 F.2d 561 (5 Cir., 1973) ; Skeels

v. Richardson, 453 F.2d 882 (5 Cir., 1972), cert. denied 409

U.S. 857 (1972).

Any irment which first began or reached the requi-

_site statu severity after the expiration of plaintiff’s in-

sured status is irrelevant and immaterial and cannot be the

basis for a claim for disability benefits under the Social Se-

19

curity Act. Goodman v. Richardson, 448 F.2d 388 (5 Cir.,

1971) ; Hart v. Finch, 440 F.2d 1340 (6 Cir., 1971) ; Kirkland

v. Weinberger, 480 F.2d 46 (5 Cir., 1973), cert. denied 414

U.S. 913 (1978).

Accordingly, the evidence fails to establish that plaintiff

was under impairment of sufficient severity prior to the ex-

piration of his insured status on June 30, 1967, to have pre-

cluded him from engaging in substantial gainful activity for

a continuous period of at least 12 months. Therefore, he was

not entitled to a period of disability or to disability insurance

benefits under Sections 216(i) and 223 of the Social Security

Act, as amended.

APPENDIX “A”

APPLICABLE PROVISIONS OF

THE SOCIAL SECURITY ACT

Sections 216(i) and 223(d) of the Social Security Act,

42 U.S.C. 416 (i) and 423 (d), define the term “disability” to

provide, in part:

“d) (1) The term ‘disability’ means—

“(A) inability to engage in any substantial gainful activ-

ity by reason of any medically determinable physica] or

mental impairment which can be expected to result in

death or which has lasted or can be expected to last for

a continuous period of not less than 12 months;

sees eee e eo 8

%) For purposes of paragraph (1) (A)—

“(A) an individual *** shall be determined to be under a

disability only if his physical or mental impairment or

impairments are of such severity that he is not only un-

able to do his previous work but cannot, considering his

age, education, and work experience, engage in any other

kind of substantial gainful work, which exists in the

national economy, regardless of whether such work ex-

ists in the immediate area in which he lives, or whether

a specific job vacancy exists for him, or whether he would

be hired if he applied for work. For purposes of the pre-

ceding sentence (with respect to any individual), ‘work

which exists in the national economy’ means work which

exists in significant numbers either in the region where

such individual lives or in several regions of the country.

“(3) For purposes of this subsection, a ‘physical or mental

impairment’ is an impairment that results from anatom-

ical, physiological, or psychological abnormalities which

are demonstrable by medically acceptable clinical and

laboratory diagnostic techniques.”

se @ „ eee

“(5) An individual shall not be considered to be under a

disability unless he furnishes such medical and other evi-

dence of the existence thereof as the Secretary may re-

quire.”

Section 223 (a) and (e) of the Social Security Act, 42

U.S.C. 423(a) and (c), provides in part:

„(a) (1) Every individual who

“(A) is insured for disability insurance benefits (as de-

termined under subsection (e) (1)),

“(B) has not attained the age of sixty-five,

“(C) has filed application for disability insurance bene-

fits, and

(D) is under a disability (as defined in subsection (d))

shall be entitled to a disability insurance benefit (i) for

each month beginning with the first month after his wait-

ing period (as defined in subsection (e) (2)) in which

he becomes so entitied to such insurance benefits, or (ii)

for each month beginning with the first month during all

of which he is under a disability and in which he be-

21

comes so entitled to such insurance benefits, but only if

he was entitled to disability insurance benefits which

terminated, or had a period of disability (as defined in

section 416(i)) which ceased, within the sixty-month

period preceding the first month in which he is under

such disability, and ending with the month preceding

whichever of the following months is the earliest: the

month in whi th he dies, the month in which he attains age

65, or the third month following the month in which his

disability ceases.***

“(c) For purposes of this section—

“(1) An individual shall be insured for disability insur-

ance benefits in any month if—

(B) (i) he had not less than 20 quarters of coverage dur-

ing the 40-quarter period which ends with the quarter in

which such month occurred,***.”

CONCLUSION

It is respectfully submitted that the decision of the Secre-

tary is supported by substantial evidence and must be affirmed.

Respectfully submitted,

JOHN E. CLARK

UNITED STATES ATTORNEY

By:

ARCHIE CARL PIERCE

Assistant U.S. Attorney

e apo!

4 ttorney

Thomas E. 5 Assistant Regional A

Health, Education & Welfare

‘of the General Counsel

Dallas, Texas 75202

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Motion for

Summary Judgment and memorandum in support thereof have

been furnished Plaintiff’s attorney by depositing in the U.S.

Mail, certified, return receipt requested, postage fee paid, ad-

dressed as follows:

Mr. Tuck R. Chapin

Attorney at Law

126 Main Plaza

San Antonio, TX 78205

This the_ day of January, 1977.

ARCHIE CARL PIERCE

Assistant U.S. Attorney

655 E. Durango Blvd., Suite G-13

San Antonio, TX 78206

229-6518

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

EDGAR H. MELIA,

Plaintiff

VS. CIVIL NO. SA-75-CA-259

DAVID MATHEWS, Secretary of Health,

Education & Welfare,

Defendant

PLAINTIFF’S RESPONSE TO

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Now comes EDGAR H. MELIA, Plaintiff herein, by and

through his attorneys, TUCK R. CHAPIN, INC., and pursuant

PRE eset en a

to Rule 56 of the Federal Rules of Civil Procedure, moves

this honorable Court to deny Defendant’s Motion for Sum-

mary Judgment on the grounds that there is a genuine issue

of material fact in this cause of action, and Defendant is not

entitled to judgment as a matter of law.

This response is supported by the attached Memoran-

dum Brief and the administrative record filed herein.

Respectfully submitted,

TUCK R. CHAPIN, INC.

By: TUCK R. CHAPIN

126 Main Plaza

San Antonio, Texas 78205

CERTIFICATE |

I hereby certify that a true and correct copy of the fore-

going PLAINTIFF’S RESPONSE TO DEFENDANT'S MO-

TION FOR SUMMARY JUDGMENT was hand delivered to

the U. S. ATTORNEY’s office, Attention: ARCHIE CARL

PIERCE, Attorney for Defendant, 655 East Durango Blvd.,

San Antonio, Texas, this 4th day of February, 1977.

TUCK R. CHAPIN

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

EDGAR H. MELIA,

Plaintiff

VS. CIVIL NO. SA-75-CA-259

DAVID MATHEWS, Secretary of Health,

Education & Welfare,

Defendant

BRIEF IN SUPPORT OF PLAINTIFF’S RESPONSE TO

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

TO THE UNITED STATES DISTRICT COURT:

STATEMENT OF THE CASE

This suit results from Plaintiff's being denied disability

benefits under the Social Security Act by the SECRETARY

OF HEALTH, EDUCATION, AND WELFARE, and all ad-

ministrative remedies in that regard were exhausted. The

basis for the complaint is that Defendant failed to consider

the disability of Plaintiff in the light of Title 20, Code of Fed-

eral Regulations, Section 404.1506 (a) (), in conjunction with

Subpart P, Appendix, Sections 1.08 and 1.09.

Plaintiff would show that he has had an amputation of

portions of both of his feet, which has left both of his feet

with anatomical deformity, loss of function, vascular deficits,

and loss of muscle mass and tendons that meet the terms of

said statutes. Pursuant to the provisions of Title 20, Code of

Federal Regulations, Section 404.1506 (a)(1) and (2) and

the referenced Appendix, Plaintiff has an impairment which

is of a level of severity deemed by statute sufficient to pre-

clude him from engaging in any gainful activity for a con-

tinuous period of more than twelve (12) months; and Plain-

tiff is, accordingly, entitled to Social Security benefits as a

matter of law, as will hereinafter be shown.

STATEMENT OF FACTS

During the Korean Conflict, Plaintiff, a member of the

United States Armed Services, was exposed to extremely cold

temperatures and suffered severe frostbite. As a result there-

of, it was necessary that large portions of Plaintiff's feet be

amputated, and this was done surgically. Thereafter, Plaintiff

returned to civilian life and sought employment. Plaintiff

discovered, however, that he was unable to retain gainful em-

ployment, and thereafter, sought disability benefits under the

Social Security Act. All other qualifications and requirements

under said Act having been met, Plaintiff sought to prove his

disability to the Social Security Administration and offered

medical evidence of the anatomical deformity of his feet in

order to gain disability benefits. Such benefits were denied to

Plaintiff and all administrative remedies were pursued by

him and exhausted without such benefits being granted ; and,

therefore, Plaintiff filed his complaint in this honorable Court

as hereinabove stated.

ARGUMENT AND AUTHORITY

Plaintiff's case is a meritorious one. The transcript of the

proceedings relating to Plaintiff’s claim for disability insur-

ance benefits under Title 2 of the Social Security Act is absent

of any indication that Plaintiff’s disability was considered in

light of the fact that he has the statutory requisites to meet

the test set out in Title 20, Code of Federal Regulations, Sec-

tion 404. 1506 (a) (1) and (2) and the Appendix thereto.

Plaintiff has an impairment which is of a level of severity

deemed by statute sufficient to preclude him from engaging in

any gainful activity for a continuous period of more than

twelve (12) months; and Plaintiff is, accordingly, entitled to

Social Security benefits as a matter of law.

In a case such as this, if the trial court finds that there is

substantial evidence to support the ruling of the administra-

tive hearing examiner, the Court is to find in favor of the

SECRETARY OF HEALTH, EDUCATION, AND WEL-

FARE. In this case, however, the administrative transcript,

filed herein and made a part of the record, is completely

absent of any showing that there was ever a consideration

based upon the statute and the facts applied to it as refer-

enced above. The Social Security Administration failed to con-

sider Plaintiff’s disability in the light of the referenced sta-

tute; and, therefore, was not able tc make a finding that Plain-

tiff has an impairment which is of a level of severity deemed

by statute sufficient to preclude him from engaging in any

gainful activity for a continuous period of more than twelve

(12) months; which disability would automatically, under

statute, entitle Plaintiff to disability benefits under the Social

Security Act. .

Plaintiff’s claim in this cause is based upon the failure

of the Administration’s referee to consider the disability of

Plaintiff in the light of Title 20, Code of Federal Regulations,

Sections 404. 1501 (b) (i) and 404. 1506 (a) (1) and (2), read

in conjunction with Subpart P. Appendix, Section 1.09. Plain-

tiff says that such failure is a conclusion of law and, as such,

is entitled to review by the trial court. Section 404. 1501 (b) (i)

states that “disability” means:

— reemanewes

> -—~

Section 404. 1506 (a) (1) and (2) states with respect to the

listing of impairments in the appendix:

The Listing of Impairments describes, for each of

the major body systems, impairments which—

eee

preclude an vidual from engaging

gainful activity ; and _

(2) Are expected to result in death or to last for a

continuous period of not less than 12 months.

Subpart P, Appendix, Section 1.09 reads as follows:

Amputation of; or anatomical deformity of (i. e., loss

of major function due to degenerative changes asso-

ciated with vascular or deficits, trau-

matic loss of muscle mass or and X-ray evi-

dence of bony or fibrous ankylosis at an unfavorable

angle, joint subluxation or instability) .

A. Both hands; or

B. Both feet; or

C. One hand and one foot.

Plaintiff would show that as a result of frostbite to both

of his feet while in the Armed Services of the United States

during the Korean Conflict, most of each foot was amputated.

Plaintiff believes such amputation to comply with the statute

as referenced above, and filed his elair- with the Social Secur-

ity Administration.

Although the reviewing authority of a District Court on

appeal from a determination of the Social Security Adminis-

tration is limited in that it may not substitute its own fac-

tual findings for those of the referees, where ultimate facts

must be reached by a process of legal reasoning based upon

the legal evidence to be afforded primary evidentiary facts,

such aspect of administrative fact-finding has its law-making

aspect, and is, therefore, reviewable. Boyd vs. Forsom, C.A.Pa.

1968, 257 F. 2d 778.

Where, as here, the controversy centers on conclusions to

28

be drawn from the facts, the District Judge is not even bound

by the findings of the SECRETARY under the substantial

evidence test. Gluszek vs. Richardson, D.C.Pa., 1972, 352 F.

Sup. 1087. Indeed, the Court may even, order additional

evidence to be taken before the Secretary...” 42 USC, Sec-

tion 405(g). Plaintiff in this case is contending that the SEC-

RETARY has made an improper conclusion of law and the

Court is not, of course, bound to accept the SECRETARY’s

conclusion of law. Reading vs. Richardson, D.C.Mo., 1972, 339

F. Sup. 259; see also Ridgeley vs. Secretary of Health, Educa-

tion, and Welfare, D.C.Md., 1972, 345 F. Sup. 983, affirmed

475 F. 2d 1222. It has long been Federal Law that the Court

may act where the ultimate conclusion rests on improper

interpretation of the law, Spradlin vs. U.S., D.C.Mont., 1967,

262 F. Sup. 502, and the Court is not bound by the legal con-

clusions or conclusiveness of the findings of the administra-

tion. Gray vs. Gardner, D.C.S.C., 1966, 261 F. Sup. 736.

CONCLUSION

The referee of Defendant should have taken into consid-

eration the referenced statute and appendix thereto and care-

fully considered the evidence in that light. If this had been

done, Plaintiff is confident that the decision rendered would

have been favorable to Plaintiff. Plaintiff has had an ampu-

tation of portions of both of his feet, which has left both of

his feet with anatomical deformity, loss of function, vascular

deficits, and loss of muscle mass and tendons that meet the

terms of the statute. Pursuant to the provisions of Title 20,

Code of Federal Regulations, Sections 404. 1501 (b) (i) and

404. 1506 (a) (1) and (2) and the referenced Appendix, Plain-

tiff has an impairment which is of a level of severity deemed

by statute sufficient to preclude him from engaging in any

gainful activity for a continuous period of more than twelve

(12) months; and Plaintiff is, accordingly, entitled to Social

Security benefits as a matter of law.

It is the position of the Defendant in this matter, as evi-

denced by its Motion for Summary Judgment recently hereto-

fore filed herein, that the SECRETARY found Plaintiff was

not under a disability and that such finding is supported by

substantial evidence. The only “substantial evidence” in this

regard, however, relates to a finding by the administrative law

judge that Plaintiff was able to function in certain capacities ;

but such finding is completely irrelevant to the facts of this

case. It is not material whether or not Plaintiff was able to

function in any capacity where, as here, the statute and regu-

lations clearly state that Plaintiff is entitled to disability bene-

fits as a matter of law.

The only possible question remaining relates to whether

or not Plaintiff has, with respect to both of his feet, an ana-

tomical deformity, loss of function, vascular deficits, or loss

of muscle mass that meets the terms of the referenced statute.

In that regard, Plaintiff offers, for the consideration of the

Court, photographs of his feet depicting their deformity, etc.

at the time Plaintiff met the insured status. Such photographs

have been previously filed herein as an attachment to Plain-

tiff’s Motion for New Trial, and it is requested that the Court

refer thereto. Even under a cursory examination thereof, it is

evident that Plaintiff had a substantial loss of major portions

of both of his feet at the time he met the insured status, and

such fact is borne out by the transcript filed herein.

There can, therefore, be but one conclusion. Plaintiff be-

lieves that judgment should be rendered herein for benefits,

past, present, and future, and attorney’s fees as allowed by

statute (Section 206, Social Security Act), pursuant to author-

ity hereinabove cited; or, alternatively, that this case should

be remanded in order that additional evidence may be taken

by the Administration.

Respectfully submitted,

TUCK R. CHAPIN, INC.

By: TUCK R. CHAPIN

126 Main Plaza

San Antonio, Texas 78205

LIST OF AUTHORITIES

(For the convenience of the Court, copies of all of the listed

cases are attached hereto and made a part hereof.)

Boyd vs. Folsom

C.A. Pa., 1958, F. 2d 778

Gluszek vs. Richardson

D.C. Pa., 1972, 352 F. Sup. 1987

Reading vs. Richardson

D.C. Mo., 1972, 339 F. Sup. 259

Ridgeley vs. Secretary of Department of Health, Education

and Welfare

D.C. Md., 1972, 345 F. Sup. 983; affirmed 475 F. 2d 1222

Spradlin vs. U. S.

D. C. Mont., 1967, 262 F. Sup. 502

Gray vs. Gardner

D. C. S. C., 1966, 261 F. Sup. 736

31

QU—Ü—ů ⅛ U — ee YS ey 7

Pit wate ꝶÄ2—27

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

EDGAR H. MELIA, Plaintiff

VS. CIVIL NO. SA-75-CA-259

DAVID MATHEWS, Secretary of

Health, Education, and Welfare,

Defendant

STATE OF TEXAS

COUNTY OF BEXAR

AFFIDAVIT

BEFORE ME, the undersigned authority, on this day

personally appeared EDGAR H. MELIA, who, after being

duly sworn by me, stated under oath as follows:

My name is EDGAR H. MELIA. I am the Plaintiff in a

cause now pending in Federal District Court for the Western

District of Texas, San Antonio Division, styled, EDGAR H.

MELIA vs. DAVID MATHEWS, SECRETARY OF HEALTH,

EDUCATION, AND WELFARE, and numbered SA-75-CA-

259. I am over the age of eighteen (18) years and have per-

sonal knowledge of the facts stated herein and am competent

to testify concerning same.

I have, through all administrative remedies available to

me, commenced and am still in the process of trying to ob-

tain disability benefits from the Social Security Administra-

tion pertaining to injuries I sustained during the Korean

Conflict, wherein I suffered severe frostbite and major por-

tions of both my feet were surgically amputated. During my

attempts to receive and collect Social Security benefits before

I began the suit now pending in Federal District Court, I was

never advised by any agent of the Social Security Administra-

tion nor by any attorney or anyone else that such impairment,

under statute, might entitle me to receive disability benefits

under the Social Security Act.

The sole consideration during all such administrative

proceedings was as to whether or not I could engage in cer-

tain types of activity, and my disability was never considered

in the light of such statute, throughout all administrative pro-

ceedings, to my knowlex ze.

Until after said lawsuit was filed, I never knew that there

was a statute that described certain types of disabilities such

as I have, and prescribed these as statutorily presumptuous

of disability and disability entitlements.

Further, Affiant sayeth naught.

EDGAR H. MELIA

SWORN TO and SUBSCRIBED before me this 10th day

of February, 1977.

Notary Public in and for

Bexar County, Texas.