# Petition — Melia v. Califano

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 436 U.S. 945

## Text

| 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 .....
Dr
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0733%3A1. Public record. Not legal advice.