Petition for Writ of Certiorari — Beaver v. United States

“2 *) a .*

: (oP apy * + ft Office-Supreme Court, U.S,

ae ~ FILED

Po . < ; is

4} “NOV 6 1962

IN THE ©

JOHN F. DAVIS, CLERK

oor

| SUPREME COURT of the alte STATES

October Term, 1962

FRANCES D. PEARMAN, — '. Petitioner, —

Vs: 7

ANTHONY J. CELEBREZZB, Sec- | en teas

retary of Health; Education and .

. Welfare of the United States of

— . ba sera :

PETITION FOR WRIT OF CERTIORARI cy

TO THE (

UNITED STATES CIRCUIT COURT OF *

_APPEALS FOR THE FOURTH CIRCUIT.

- Cuay S. Crovse

ao Heaberlin Building

om . Beckley, West Virginia

‘ ‘Attorney for Petitioner.

Marvin R. ‘Watson :

Grier Building _\

Greenwood, South Carolina —

.

“IN THE

SUPREME COURT of the UNITED STATES.

-Octoher Term, 1962 _

No. ectealeatenubnescsit

FRANCES D. PEARMAXN,-. .__ Petitioner,

OE a a

_ ANTHONY J,-CELEBREZZE, Sec-

retary of ‘Health, Education and .

Welfare of the United States of © _

—— | mnepanient:

PETITION FOR V WRIT OF “CERTIORARI

| TO THE

UNITED. STATES CIRCUIT COURT OF.

APPEALS FOR THE FOURTH CIRCUIT.

TO THE HONORABLE, THE CHIEF JUSTICE AND

_ THE ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITEDSTATES: ne ee

————— Your pet petitioner prays. that a writ of certiorari issue to .

review the. judgment-of the United States. Cireuit Court

of Appeals for the Fourth Circuit, entered in the above-

styled cause on August 30, 1962.

OPINIONS BELOW

Searlne Examiner’s decision, July’ 21, 1961; ont

entered by the District Court of the United States for

the Western, District of South Carolina on February 6,

ie

2.

1962, and opinion of Cireuit Court of Appeals entered

August 30, 1962, all of which are hereto appénded.

' JURISDICTION -

The judgment of the Cireuit Court of Appeals vali

_ to be reviewed was entered on the 30th day of August,

1962. Petition for rehearing, \ seasonably filed by peti-

tioner, was denied on October 4, 1962; by order of Mr. -

_, Justice Clement F. Haynsworth; Jr. A stay of. thirty -

days within which to file’ petition for certiorari was. .

granted on October 11,: 1962. " Jurisdiction of this Court-

is invoked uhder the Administrative-Procedure Act,

5 U.S.C:A. 1009(e). and-42 U.S.C.A. Sec. 405(g) of the —

pee Security Act. On: August 13, 1962, Anthony. J.

Celebrezze was tt ve Abraham A. Ribicoff, as.

de f endant.

QUESTIONS PRESENTED

1) Whether the Circuit Court applied correct prin-

'* eiples of law in. determining and so holding that: the.

petitioner, af ter having spent,over Nine Thousand Dollars

($9,000.00) for hospital services, was required to make an

effort to obtain employment after she had been advised —

by one of her attending physicians not to work, and the

- undisputed evidence. that she was totally arid perma-

nently disabled from panei. § any type of gainful em-

ployment. . 2

2) Whether the Cireuit Court enplied pond prin- |

ciples of law in- holding and so. determining that the

: petitioner’ s failure to consult Rehabilitation Officers and

attempt to obtain from other sources any help-or advice

as to. what she might be able to do, was a condition.

. precedent to entitlement to social security insurance dis-

ability benefits under 226(i) of the Act, as: amended.

“3

.% Whether upon a review of. the whole record, it

‘ appears that the petitioner’s physical mipairments pre-

vented her from following substantial gainful —.

ment continuously from the date of her injury May 22, —

1952, to the date of her application for disability insur-

ance’ benefits. on October 25, 1960, and-whether those /—

‘physical impairments s_medically determined to be: oe

long-continned-and ndefinite duration. -

STATUTES INVOLVED ‘ A

- The Administrative Procedure Act 5 U.S.C: /1009(e),

“which requires a reviewing court to set aside admin- —

istrative action unsupported by substantial évidence, and .

. in making such determination, to review ie yhole record ;

“ Sovial. Security Act, Section 216( i)/ as ‘amended, 42

U.S.A. 416(i), which defines disability \as inability to...”

engage ‘in any substantial gainful activ ity\by reason of: *

any medically determinabie pairment, ‘physical or

mental, whidti can be expectedé¢to result in death, or to be

of fong-continhed and. indefipite duration ; Section 405(g)

which provides for-review ‘of administrative action by a-

civil action brought inthe District Court in the juris-.

diction in which the plaintiff resides, and Section '423(c)

(2), which redefines disability” and requires the plaintiff:

to furnish such proof of the existance thereof. as may

be required. ..

arene

The basis of petitioner’s claim is physical impair- 7

-ments’ resulting from a personal injury sustained in

May, 1952. At that time she was thirty- -$wo years old.

. For ten years before her last employment, she worked

in shirt manufacturing .plants, teaching various opera-

tions to new employees, fflling in wherever needed, and

7

a <> sete ,

7 ig = \ ‘

doing a variety of jobe, including ‘checking ‘time

and orders. ‘Her last three years of work were spent in

cutting samples and forwarding them to.New York for

._. use by salesmen. All of her jobs were inside plants ; all

required her to be on her feet continuously. She usually °

worked eight hours a day six days a week with some

over time at various seasons. She is a graduate of a

- four year high school.. — <7

On: December 31, 1957, she stated to the District Man- |

- ager of the Social Security Administration, at Green-

wood, South, Carolina, that ‘‘her job: at Riegal Textile

is still available but she has not been able. to return to

- it since the accident.’’ She wag hospitalized for, the in-

jury a-period of over three months; was in a cast ae

five months, and wore a brace ‘‘from her waist down

‘for one year.’’ Her right arm was in a cast for ten

months... She was hospitalized again for surgery and

skin grafts. She uséd a wheel chair, for several months

and crutches: until 1967,"

Pe

- “At the hearin 18/61, the Examiner’ observed that

‘the petitioner was unable to get-her right hand to her —

head or face, could not close her fingers, or her right

. hand. Her arm was. stiff, and she could not flex or ex-

tend her. ‘knee. Her sitting position was with her foot

straight out in front of her, and the muscles. of “hc? arm

had lost their elasticity due to cast immiobilization. She

could not do house work requiring lifting of heavy wae

- jects, and she walked with a limp.

1-13-58, Frank H. Stelling, M: D. made a report to

’ the. deferldant on its prescribed form. He first saw the

claimant August 11, 1952, and once. monthly thereafter

to 9-6-55. He reported fracture of right femur, injury

to the right knee joint, limited motion of knee from 120

e

~

tal

)

4

:

degrees to: 170 degrees on the right, very‘ poor hand due

to imjury, a very stiff elbow, .and open reduction and

bone graft right forearm. fhe: advised the petitioner -

not to work as of the date of his ‘report 11- “13- od..

1- 15-58, Jack C. Souréy, M. D. reported severe com-

pound comminuted fracture: of right elbow and right

femur;.a completely ankylosed right elbow with the

_ joint fused at .approxiniately fifteen degrees ; no motion

in the elbow joint, neither flexion or extension on prona--

tion; complete. ankylosis of the right knee joint, with .

no motion in-either direction.. He stated that =:

was, totally disabled to carry out a gainful occupation.”

10-31-60, Dr- Seurry again reported severe, compound

comminuted fracture of the right elbow, and the petition-

er unable to work because of ‘resulting disability. Ex-

amination on 10-28-60, shows completely ankylosed right

oo ankylosis of right knee,and inability f& make a

“fist with right hand, and that ‘* because of these physical

findings, it is my opinion that this patient is > totally and |

permanently disabled for work.’

/

11-1-60, RS. Clarke, It., M.-D* reported that the peti-

‘tioner’s chief difficulty is stiffness and ‘immobility of

right, elbow ; stiffness ef fingers of the right hand: and

right knee ;'deformity. of right fifth finger; good flexion

“of right wrist; extension moderately’ impaired; fore-

arm cannot be rotated apparetitly due to: synostcosis

between radius and ulna; right forearm fixed in 35 de-

_greeseflexion at the elbow; cannot close the right hand |

in making a fist, and right knee fixed in extension with |.

barely perceptible motion remaining.

11-4- 60, Frank H. Stelling, M. D. reported leat aia.

left 3214, right 32; adherent scar over medial aspect of

st z eta 7% 6 aa ear

——EESESE=EE SSS ee

right knee; patella moves very slightly, is beled; large

\!- sears over the lower leg, the longest ‘being 12" to 14”

-. long on the anterolateral thigh, slightly adherent junc-

tion middle and distal third of this scar to the underly-

ing quadriceps. She walks With a ‘stiff! ‘knee gait, sits:

with a stiff knee, and has sgme difficulty. clearing the |

right foot through because of tightness in the knee. ‘Phe. |

“elbow is flexed at an agle of about 135 degrees with no-

motion at all in flexion and extension. ‘Forearm i is: flexed

in about neutral position between pronation and supila- Steet Se

tion. Her hand slightly deviated to the radial side. There

is a prominent ‘ulnar styloid. Wrist extension. is to

neutral, flexion about 45 Yegrees ; can oppose the thumb

to .the liidex finger, but not quite td thé little finger.

Fingers can be flexed to within two fingers breadth. of

' ‘the palm. There. is. tightness in the entire’ extensor ap-

paratus, but she can extend her fingers well. ‘There is.

extensive scarring ‘throughout the right elbow region /

with radial and ulnar linear: scars, ‘but there is a very y

adherent sear over posterior elbow. . .

Evidence of petitioner at the hearing Was that she

wo'ked with a dimp; was unable to stand over -thirty |

- minutes to an.hour; right lower’extremity goes to sleep

- within an hour, unless elevated. Her ‘work was’ limited

to light ‘work around the house. Hired help was em-

ployed to do the heavy work and mopping. She had

_ tried attending a baby,’ but could not ‘‘lay it down after

it goes to sleep.’? She could not change its clothes or

pin on a diAper because of her right hand. She could |

pot keep her balance when walking, and had*fallen sev-

eral times injuring herself. She did not know of any _

occupation or work that she could.do with:a reasonable |

/ amount of certainty without injuring herself. Because -

i ©

—

7 rots —

) j

of these iiepalrenciits she: ‘required hired help to do her:

Teac work. (

U pon inquiry by the Hearing Examiner. as. to w ethics

or not. the petitioner had tried to get some other job, or.

trained for another job by consulting the Woéational

,. Rehabilitation Department of the State of South Car-°~

* olina, the claimant stated that she ‘‘could not use a pen- |

“cil, could not use amquore, and figyred there was no

use, and no point in it.” She Tould hold a pencil, but

could not -use’ it any length of time on account, of her

_ fingg rs crampjng, - and could not write with her left’

. hand, and has not bean able to’ > think of any kind of work

she could do to earh money. ‘|

The. petitioner's ; husband’s evidencé Was. substantial- ;

ly the same jas that of the petitioner. He added, that he, |

helped her around the house bee ‘ause her unbajgnee made.

‘it dangerous ‘for her to work; that she had fallen three

. times. nécessitating medical: care, He gav @ as a Treason

for her falling she-‘‘knocks her stiff leg on almost every-, ., 3

_ thing ‘that sticks up.’?” ‘He had fear of- her falling ands;

getting hurt. He changed jobs in order to care’ for her,

and he did not know of any typdof work she could do

-with any reasonable: degree of safety.

SPECIFICATIONS: OF ERROR TO BE URGED ‘

The United States Circuit Court of Appeals: ‘for the

Fourth Circuit erred: -°° °°

1) The Court exceeded its jeriediction wader’ the Ad-

ministrative Procedure Act, and the review ‘ing provisions

. of the Social Security Act: bt air a and so hold-

ing that: . he :

(a) Offer of employment by a, former oe Iie who

did not know the extent of the petitioner's phys S-

s

A

2 i

~ ieal impairments “*éertainly held enough hope to —

require investigation on her part,’* and

(b) ‘‘It is. significant that she did not consult Re-

habilitation Officers, and did not: attempt to ob- .

- . taingfrom any source any help or advice as to”

what she might be ‘able to do.’? There is not a

seintilla of evidence in the record to show that the

_ pursuit of either course would have ac complished

‘dny usefull purposéy e

2) Tn failing to hold, as a matter of law, that the 7

claimant had sistained her burden of proof as. required

under 42 U.S.C.A., Sec. 416(i) (1) (A). and Sée. 423(¢)

(2).

3) In its failure to hold that the Hearing Examiner’ s

decision, affirmed by the District Court, that the claim:

ant’s impairments were not of ‘suffieient severity “to

preyent her from: engaging in some type of substantial -

‘gainful work,’’ without inditating the type “of work that °

the claimant could do that was ay substantial ayd (b)

gainful. ° Ae fo: '

Ne

4) teas w not holding that the prone nents e de. ,

cision was: based on “speculation and conjecture.

5) That en the basis of the tolhowiie evidence, with-- 4

‘out ‘regard to the limitations’ hazards, dangers, aid in-

juries to the petitioner, and others i in so doing, and after

having “been advised: by: her attending physician not to

work, that the mere ‘fact that: ~

“THIS. CLAIMANT IS. ABLE TO GET AROUND,

_ DRIVE AN AUTOMOBILE, AND WRITE WITH ©

:-THE AID OF A LARGE PEN, AND CAN SIGN

HER NAME WITH AN ORDINARY PEN. UN» *

DER THESE CIRCUMSTANCES, HER MERE

STATEMENT THAT SHE HAS BEEN UN-.

7

~

ABLE TO THINK OF ANYTHING THAT SIRE

THOUGHT SHE COULD DO: IS MOT. VERY

PERSUASIVE IN THE FACE OF THE REC ‘ORD

DISCLOSURE THAT SHE HAS MADE. NO EF-

FORT TO’ OBTAIN. EMPLOYMENT...

WwW ithout taking into account the undisputed evidence of .

the limitations, dangers and hazards to-the petitioner's

“getting about’! and the physical impairments medical-

ly determined by: examining.and treating physicians, and -

their expert opinions, that this petitioner was totally’

disabled: from doing gainful work; that she-had_ not

‘ shown that she was unable ‘‘to-engage in any substan-

tial gainful activity by reason of ‘any medically deter-

minable physical or mental impairment which é¢an be —

. expected to sPesalt_ in deatli or to be of long-continued

and indefmite’ duration’? ‘under 42 .U.S.C.A. see.

arsitea), A) and on 0 23(6)(2)._ Patin Mee

REASONS FOR GRANTING THE.WRIT

-1) ‘The interpretation of the Court helow of the »

_ statutory requirement of the petitioner’ s burde n of proof

involves judicial legislation. ; %

‘2) The decisién: of the Court below. has decided | a

federal question which is clearly @ conflict withe ap-

_ pliéable decisions of this Court, and all other Enited

States Courts on. two questidiis, (1) subStantiality of

evidence and (2) the ‘burden-of! proof required under*

the disability provisions of the Social Security Act.

3)-° The questions presented are important in the ad-

ministration of the disability provisions of the Social .

~ Seetrity Act; and should he settled by this Court for

the reason, that‘if the questions, as judicially determined

-by the Cireuit Court, are permitted to stand, this and

ei

other administrative agencies will hereafter be free to

render decisions contrary to judicial and juristie reason-

ing, common know ledge, and human experience. ;

4) The petiticner and her ooenael were taken by -

‘surprise by the decision ofthe. Cireuit Court, by its hold-

ing that the petitioner was required to consult a former.

employer and Rehabilitation Officers to sustain her bur-

den of proof, as held by the Cireuit Coart, because those

requisites were. not considered by the Administrative

Agency or the District Court as conditions precedent to ~

sustain her burden of proof.

Dd) Requisites of, consulting former employers and

Rehabilitation Officers to sustain a, claimant’s burden:

_of proof for social security insurance-disability benefits, |

_ as held by the Circuit Court, are not required under 42

U.S.C.A- Section 416(i) (1) (A),,and Section 423(c) (2)

of the Act, expressly or by implication.

' 6) The questions presented are of such ininentive

public importance as to justify deviation from normal:

appellant process, and require immediate settlement’ in

this Court. —

~ CONCLUSION

For the foregoing reasons, it is respectfully sebmitted

that this petition for writ of certiorari be granted.

Frances D. Pearman’)

Petitioner |

Ciay S. Crouse

Counsel for Petitioner

- Marvin ‘R. Watson. Sea,

of Counsel . . * ;

Per Curiam Opinion

Filed ‘August 30, 1962.

UNITED STATES COURT. OF APPEALS

FOR THE FOURTH CIRCUIT

~ No. 8630:

Frances ‘D. Pearman,

Appellant, |

cay) "versus

Abraham <A: Ribicoff, Secretary of the Department’ of

Health, Education and Welfare,

Me.

. ——— aa

ny

er ane z

nt a ae

. APPEAL FROM THE Unirep Srates Districr Court FOR

THE Western District oF SoutH Carouina, at GREEN-

° % 2

woop. J.’Ropert Martin, Jr., Distrier Jvupce.

(Argued June 6, 1962. Decided August 30, 1962.)

Before. Harxswortr and Bett, ‘Cireuit —* s, and

CRAVEN, District Judge. . |

Clay 8. Crouse and Marvin R. Watson les Appellant, and

John, C. Eldridge, Attorney, Department of Justice,

(W illiam H. Orrick, ,Jr.,. Assistant Attorney General ;

John C. Ww illiams, United States Attorney, and Alan

S. Rosenthal, Attorney, ii nionstaaa of Justice, on

brief) for Appellee.

14

Per Curiam: | ee

This is Frances D. Pearman’s appeal from the action

of the District’ Court upholding the denial by the Sec-

retary of Health, Education and Welfare of a claim for

a benefits urf@er 42 U.S.C.A. sec, 416(i). and

sec. 423.

To be entitled to. disability payments, the ddaimant must

show that she is unable ‘‘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 to be. of long-continued and in-. _ :

definite. duration . ”’ 42 ULS.C.A. see. sas (1) (A)

____—and see. 423{c)- (2).

‘The evidence tends to show that claimant, as a result

of an automobile collision, has a completely ankylosed

right elbow with the joint fused at approximately a

fifteen degree angle, and also a completely ankyloséd

right knee joint; there is no motion whatseever in any”

‘direction i in either of these joints. .In addition: to these

apn impairments, she is unable to completely close the fingers

of her right hand. Two of the doctors expressed -the opin-

- ion that-by reason of these impairments, claimant was

unable.to work in any gainful activity. Beyond question,

these conditions are medically determinable impairments,

but that determination does not necessarily entitle claim-

" ant to the benefits of the Act. In addition tb-a medically |

determinable impairment, it must appear that the impair-

- ment causes inability to engage in any substantial gainful

| activity. U nderwood v. Ribicoff, 298 F. 2d 850 (C.A. 4).

The evidence tends to show that this claimant is a

‘woman of considerable intelligence afl of good person-

- ality; that she has more than ordinary ability and 1s

- equipped with a high school education, and was thought:

% ie eee as Se ees

. by her previous employer to be a valuable employee.

Except for the medical impairments noted above, she is

apparently in good health and emotionally well: ad juste “dl.

to her disabilities. Although her last employment was :

that of cutting samples in a’shirt factory, sue had previ- re

"ously taught various operations to new émployees“and

_ had performed a variety of other; tS fler the auto-

niobile collision which caused her impairments, her:

former Resa indicated’a willingness to reemploy. her.

Although: it dogs not appear that he knew in detail the

extent of her/physical impairments, we think the fact of

_ the offer of reemployment certainly held enough hope to

require Anvestigation on her part, if, as’she sought te

prove(she would have gone to work if she had heen alle

to: ain It is significant that she did not consult the

rehabilitation officers and did not attempt to obtain

from any source any help or advic ice as to What she might

be able to do.

° =o

This claimant is able to get afounid, drive ain automobile,

and write with the aid of a large pen, and can sign her

"Mame with an ordinary pen. Under these crreunistances,

her mere statement that she #as been unable to think of

anything she thought she could do is not very pe orsnasive at ee

in the face of the record disclosure that she hats mace no

effort to obtain employment.

a:

ene

*The Hearing Examiner concluded that claimant had 5

‘failed to establish her inability to engage in any’ sub-

stantial gainful activity and deniéd- ber application for

benefits under the Act.

We.are of the opinion that there is substantial evidence

to support his findings and that the District Court prop-

erty affirmed the Secretary's decision. t cares

oy Seis: Dg Affirmed,

CERTIFIED COPY

| FILED

February 7, 1961

Mutter C. Foster, Jr, Clerk - _

INTHE a.

DISTRICT COURT of the UNITED STATES

FOR THE W ESTERN DISTRICT — —

GF SOUTH CAROLINA :

“GREENWOOD. DIVISION

s

Fr rances - D. adeian

i °

: + Plaintiff, d: | r

Vs. as Civil ition No. 8025 Baek

- Abraham Ribicoft, Seeretagy ) SS ee .

of Health; Education and OR DER

Welfare, v, \ Ss Cage

. Dabecdant. : .

This is an appeal from a final decision by the Secretary:

that Claimant-is-not-entitled-to: a period of disability

_or to disabilty benefits under, 42 -U.S.CLA,, 21641) and

223 respectively. The question presented is. whether or

' not.the Secretary’s decision is supported by substantial

ev idenee.

_, The Secretary. ‘found ;‘**.> * Whaiabat’ s’ orthopedic

impairments have not been of ‘sufficient sev erity, either

singly or in combination, to prevent her from engaging

in some type of substantial gainful work, see Claim-

ant has limited partial. use of her right arm, hand, leg

and foot. She has a high school. educ ation and was

‘ ; \"

\

\ ‘

\ .

A

\

13 tea ®

thirty- elBpeiie old at the ren became partially,

disabled in an automobile accident im 1952. :

‘| fipd' that ti®re is, substantial evidence to support the

Secretary’s decision that Claimatt was not disabled

within the meaning of the Act c. to the time she filed —

her application..

. For the above reason the- decision of the Secretary is

| Affirmed.

‘/s/ J. Rost. MARTIN, Jn < .

‘United States District Judge

Charleston, S. C.

4; February 6, 1962

TRUE COPY |

' . TEST: Mere

: cr . Miter.C. Foster, Jr., Clerk

By: Eorru W. Tuomas

Deputy Clerk

“a

19

aves DEPARTMENT. OF

. HEALTH, EDU CATION, AND WELF ARE &

SocraL: Secyniry ADMINISTRATION

Office of Hearings and Appeals

HEARING EXAMINER'S DECISION

‘In the case of

Frances D. Pearman. Claim for *

* (Name of Gaimapt) aE

Period “of

Frances D. Pearman” | | Disability and |

‘ aty

(Name of wage earner) |

Disability Insurance |

250-14-8504 “Fb - Benefits =

(Social Security Account number )

.. This case comes before “ue hearing examiner on a-re-

quest for hearing fildd on February 28, 1961 by . the,

‘claimant, Frances D.’Pearman, who has expressed dis-

satisfaction with a determination of the Bureau of Old-

Age and ‘Survivors Insurance of the Social Security

Administration, of which she was notified on January

12, 1961, denying ‘her application filed on October 20,

1960 for a period of disability and, or disability insurance

benefits. Upon reconsideration, the Bureau’s determina-

tion was affirmed and claigant was so notified by letter

dated February 22, 1961. Hearing was held on: April, 18,

1961 at Greenwood, South Carolina, at which the claimant ~

appeared and testified. She was represented by Attorney

Marvin R. Watson, Greenwood, South Carolina.

2 er Oe ean o 4

~ The general issue before the examiner in this case is

whether the claimant is: entitled to disability insurance

"20 *.

benef! ‘s and tHe establishigint of a period of disability.

The more specific issue is whether, since’ May 22,1952,

or beginning at a time when she met the special earnings

requirements of ‘the Act for disability purposes, and

continuing tothe date ‘of filing her disability, application,

claimant has been unable to engage in any substantial

gainful activity, by reason of a medically determinable

physkal or mental impairment whith can be expected

' to result in oath or to be of Jong-continued and in-

définite duration." ;

‘Form AC-540A "

2? Form AC-541A

Form AC-514

(859) . ,

The claimant, Frances D. Pearman, filed application

on October 20, 1960 for a period of disability and/or

disability i insurance benefits, alleging that ‘she was born

on October 30, 1920; that she completed the eleventh

grade in school, and that she became unable to work

beginning May 22; 1952 because of a stiff vight leg-and

right arm resulting from an accident.

~ Claiggant’s wage record shows earnings in most of the |

quarters ending with the second quarter of 1952, with.

‘no earnings posted thereafter. From this evidence, the —

examiner finds that claimant met thesgpecial earnings’.

° requirements of the statute for disability pu poses i in the

quarter of allegedconset of disability, the second’ quarter

of 1952, and continued to meet them through the calendar

quarter ending June 30, 1957. :

There is in evidence before the examiner a certification

of claimant's birth certificate. issued at birth, showing

that she was born on October 30, 1920,.and that she was

° ' \

. ® 4 ° ‘

.

“ ; . Pe

Cog,

the daughter of Marvjn Dunlap and Fannie Belle Dodson.

. From-this evidence, the examiner finds that claimant-was

“born on O@ober 30, 1920, as allegyd in her disability

application. woe

¢

There is before the examiner a report of an interview

‘between the tlaimant and‘the District Manager of the ~

Greenwood, South Carolina: office of the Bureau on

December 31, 1957 in connection with a previous dis-

‘ability. apiplieation filed on that date by the claimant,

which was denied by the Bureau and from w hich determi-

nation claimant did not ¢ake an appeal. This report of

‘contact can -be summarized.as follows: Claimant com!

pleted a regular four year high school course, is highly

‘intelligent, and has an attractive personality.” She was

involved in an automobile ¢ accident in May 1952.in w hich

she suffered a severe head i injury and her right arm and

. leg were érushed. She was unconscious for six weeks

after the jaccident, and was in the hospital ow little

over three months iramediately following her injJwry. She °

was in a cast for five months and wore a brace from,

waist down fora year. Her right arm Wasyin a cast, for

about ten months. She was in the hospital later for four

or five weeks for‘ operations for skin grafts. * Her last

job was with the Riegel Textile Company, where Khe cut

samples and forwarded them to the sales: roond in New

York for use by the salesmen, For about ten i

to her last job she worked in shirt mannfactyring plants,

teaching various operations to new employees. She filled

in wherever ‘needed, and did a variety. "jobs including

checking shipments to'see that all ordérs ‘were’ properly

' filled and on time. All her: ‘jobs were inside the plants’

and required ‘hgr to be on-her feet constantly.. She, has . |

not worked sinck her acenlent in 1952, and indiéated that

4 .

*

Ot) gene tee ae

she was not too concerned about not having a job, as

her husband had a very good job with the Riegel Textile

. Company. Following her accident in May 1952, she was

ina wheel chair for several months, and then walked -

on crutches until about the first of 1957, after which

“she wsed a cane for a while When walking. At that time

she discontinued going to a doctor, as she felt that her

condition was “ just about static.’’ She statéd that she

cannot stoop or squat at.all, that her right arm is stiff

at the elbow, is unable to get her right hand to her head

or face, and cannot close the fingers of her right hand.

Her right knee i is stiff and she cannot bend-it, and Ms .

with her féot straight out in front offer. Her right-elbow

is stiff at about a 90 degree angle, but there is mobility. — -

“in her shoulder, Her doctors told hér.that the muscles |

of her right arm have lost their elasticity due to the long

_timme she was in a cast. She. does all of’ her own house-

d keeping except the heavy cleaning, but can do no house-

work which requires lifting of heavy objects. The Bureau

representative observed that claimant walked with a limp

and that. her right leg appeared to be slightly shorter

than the other and that she sat with her right foot-ex-

_ tended. Claimant said that, other than her stiff joints,

. She had no disability.

; There i is also in ia before the examiner a report.

of contact between the claimant and.a representative of

the Gréenwood, South Carolina District Office of. the

Bureau on Noyember 29, 1960 in connection with the sub-

sequent application filed on October 25, 1960 which is .

before the examiner for consideration in this case. She

stated that she had recently been in the ‘hospital for a

female operation which, so far as she kifew, was entirely

“successful. The, Bureau representative observed « that

23

claimant was unable to close the fingers on her right hand

sufficiently to-grip anything, and that she walked rather

- stiff legged and with a limp.

The medical evidence before the examiner’in this case

“consists of two reports from Dr. Frank H. Stelling,

Greenville, South Carolina, dated Januar'y 13, 1958 and

November'4, 1960; two reports from Dr. Jack C. Seurry,

Greenwood, South Carolina, dated January 15, 1958 and

- October 31, 1960; and a report from Dr. Robert 8. Clarke,

_ Jr. Due W est, South Carolina, dated November 1, 1960.

In his first report, Dr. Stelling reported that he first

saw the claimatit on August 11, 1952. She had had a .

fracture of the right femur and an injury to the right

" knee joint, and had limited motion of the knee from 120

degrees to 170 degrees on the right. She had a very poor.

hand due to injury, and.a very stiff elbow.

In his subsequent report dated Nov ember 4, 1960 Dr.

Stelli ng reported that claimant’s right leg was one-half

‘inch shorter than the -le ft, there’ was. a scar-over the

‘medial aspect of the right knee, and the patella moved

very slightly. There were large sears over the lower

right leg, which had-an ext ‘nsion to 180 degrees and

flexion to.175 degrees. She walked with a stiff knee gait

and sat. with a stiff knee. Shoulder motion was good in

the right upper extremity, but the elbow was fixed at an

angle of about 135 degrees, with no motion at all in flex-

ion and extension. She.had a fixed forearm in atiout

: * neutral position between pronation and supination. The

‘hand was slightly dev iated to the radial side. She had

wrist extension to neutral ‘and flexion to about 45 de-

**,

- grees. She had good adduction and extension of the-

thumb, with a little loss of full spread. She could close

‘the thumb to the index finger but not quite to. the little

, Ss re

- ws P

: .

. te

=

: | 24

~ ns

Re finger. The’ fingers of the right harid could be flexed

to within about two fingers breadth of the palm, but she

could extend her ‘fingers well. There was rather exten-

sive scarring throughout the right elbow region, with

radial and ulnar linear sears, and a very adherent sear

over the posterior elbow.

Dr. Jack C. Seurry of the Seurry Clinic; Greenweod,

' South Carolina, reported on January 15, 1958 that claim-

ant was in an automobile accident in May 1952, in which

_she suffered a severe compound comminuted fracture of.

the right elbow and right femur which: required hospital: :

ization over a period of approximately’ one year. She is’

now doing well, has no complaints, but has a completely

ankylosed. right elbow, fixed: at an angle of about 135

degrees. There is no motion whatever in the elbow joint,

either flexion extension or pronation. There is :lso com-

y plete ankylosis of the right knee joint, so that there is

no motion in this joint in any direction. .

On October 31, 1960, Dr. Scurry filed another report

with the Bureau in which he stated that the claimant

was in an al&tomobile accident in 1952, at which: time she

had a severe compound comminuted fracture of the right

femur which extended into the- right knee, and a sev ere

compound comminuted fracture of the right elbow. She

has a completely ankylosed right elbow and right ‘knee ;

and i is unable to make a fist with the right hand.

Dr. Robert S. Clarke, Jr. reported on November 1,

1960 that claimant was injured in a highway accident on

May 22, 1952 and was taken to Self Memorial Hospital,

- Greenwood, South Carolina, in an uticonscious state, re-

maining so for six weeks. She sustained head -injuries,

fracture of the right forearm and the loss of approxi-

25

mately four ‘inches of bone from the mid portion of the

right femur. Both skin’and bone transplants were re-.

quired. Her initial hospitalization was for 100 days and

she was subsequently hospitalized on two more occasions. -

In December 1952, her casts were removed and: a leg

»race’ fitted. Prior to the injury, her health was excel- |

lent. She had worked for fifteen years at Riegel Textile

Company, Ware Shoals, South Carolina. Her chief dit-

ficulty at the present time is stiffness and immobility |

of the right elbow, stiffness of fingers of the right hand,

and stiffness of the right kneé.

Dr. Clarke further reported that claimant is a well

developed-and nourished msat cooperative ‘and intel--

ligent, with numerous Scars on*her right arm and right

leg. Neurological examination showed no gross motor or E

“sensory deficit and-no abnormal reflexes elicited. There

was deformity of the terminal phalanx: of the right fing-.

ers. Flexion was good at the right wrist, but extension

- was moderately impaired. ‘The forearm could not be ~

rotated, apparently due to synostosis between the radius

and ulna, The right forearm was fixed at 135 degrees

' flexion at the elbow. She could not completely close. the

right hand in making a fist. The right knee was fixed

in extension with barely perceptible moti ion remaining:

Dr. Clarke turther stated that claima, it has a fixation

_ of the right knee and elbow due to renjote trauma, syn-

_ostosis (bony fusion) of the right radius and ulna, and

- fibromyoma of the uterus or ovarian cyst. It is noted

by the examiner, however, that the fibromyoma or -ovar-

ian cyst reported by Dr. Clarke was subsequently re-

moved by an operation. .

At the hearing before the examiner in this case claim-

ant testified that she is forty years of age, has been

‘ 26

married for twenty-four years, and lives with her hus-

band, who is now a carpenter. -‘They have no eluidren,

and own thejr-own home free of encumbrance. Her

husband makes about $00 a week on the average. She

does her own housework except for the heavy werk,

which is done by a maid who comes in periodically for

that purpose. Betore World War Li claimant worked

for seven or eight years in shirt manufacturing plants,

and during-the war she worked for Switt and Company

in Fort Worth, Texas. After the war she came back to

work for the Reigel Textile Company, Ware Shoals,

South Carolina, in the rayon mill, where her job was to

cut: samples to send to the New York sales office and

also. to the company’s laboratory for inspection and

tests. She is right handed and did this work with her right

. hand: She was ini good health until she had an automo-

bile accident on May 22, 1952, caused by a pulpwood

company truck backing into a car driven by her husband,

resulting i in her husband's car turing over and injuring:

her séverely-on the right side. Her-elbow was ‘‘knocked

off,’’ and a piece of bone ‘‘knocked out’’ in her right

leg. She also sustained head injuries, and Was uncon-

scious for about six weeks after the accident. In August’

1952 an operation was performed by Dr. Stelling, Green-

ville, South Carolina, who is a bone specialist at the

Shriners Hospital for Crippled Children. He performed

several bone operations on her, which required trans-

planting of bone and marrow from other parts of her

. body to her sfijured right arm and right leg. Her whole

body was put in a cast, which was taken off in December

1952 and replaced by a brace on her leg. She could not

walk at all.until April 1953, and was in a wheel chair

and on crutches and a cane until the summer of 1953.

. Her medical and hospital bills were between $9000 and

<~ \

oS : pos

$10,000, but she collecied damages of $95,000 from the

company that was responsible for.her ‘accident. At the

present time she walks with a slight limp, and her right

leg-is.stiff,-with no motion at the knee. Her right cibow

was *‘knocked off’’ in the accident, and has become sutt,—

so that she cannot extend it. All of her injuries Were e on

the riglit side of “her body, aud-her left leg and arm are

all right.. She did not lose the patella on her right leg,

but the muscles **drew up”’ because of the fongttime that

her leg was in a cast after the operation, so.that she

cainot bend it. She testified that, although she had-in-

juries to her head caused by the automobile accident,

-there was no brain injury. Her family doctor at the time

_ of the accident was Dr. Buck Pressly, who. is now de-

ceased. Her présent family doctors afte Dr. Jack Scurry

and. Dr. Robert 8S. sgn Jr, the latter of whom is her

. ‘tevery day doctor:’* Claimant further. testified that she

cannot bend the fingers of her right hand very we ll, and

can not use a pencil or Scissors with that hand. She has

tried to train herself to be lef't- handed, but has. been un-

able to do so. The rayon plant of the Riegel Company

where she was employed at the fime of her accident went

out of ‘business after the acvident, and she has not at- |

tempted to get another job, because she does not know

of any kind of work she can. do, on account of her stiff

right. leg and right arm. It was observed by the examiner

that. claimant testified with her right leg fully extended,

indicating obvious inability to flex the knee of that leg.

Claimant's ; husband, Ben. Pe: irman, testified before the

‘examiner that, at the time of the acciderit, he was working

at the Riegel Textile Company, but later changed his

employment so that he could be nearer home, and is now

_ working as a carpenter. He testified that his wife has a

‘hard time keéping her balance, because of her stiff right

—_

e

«

_ Social Security Act providing for the establishment of

- a period of disability, as defined in Section 216(1) of

~ leg, and has fallen. two or shoes times on-ber. right arm.-

He-did not thik that she was able todo any gainful work.

When Congress” enacted the 1954 Amendments to. the

the Act, and the 1956 Amendments providing for dis-

ability. insurance benefits, as defined in Section 223 of —

the Act, it was made clear by. reports of ‘Congressional

committees that a claimant would not be entitled to a

‘finding of disability unless the i impairment was expect ted

to result in death or to be of long-continued and indefinite:

duration, and was of such severity as to preclude the

. claimant from engaging in any substantial gainful activ:

ity in the foreseeable futitre. Congress clearly placed the

burden upon a claimant to submit substantial evidence

to support each and every element of his claim.’ *

It: must be established by medical evidence, and when ~

necessary, by appropriate medical tests, that a claimant's

impairments have resulted in such a lack of ability to

perform- significant functions, such as moving about,

a

handling objects, hearing or speaking, or, in the case of

mental impairment, reasoning and understanding, that

‘

he cannot, with his training, education, and work ex-

perience, engage in or, kind - ot. substantial gainful

activity.

-To be entitled to disability i insurance benefits and the

establishment of a period of disability, therefore, the

claimant in the instant case must show that, beginning

May 22, 1952, or at some time prior to. June 30, 1957,

when. she last met the earnings requirements, and con-

tinuing to the date of filing her disability application

_on October 25, £900, she has been unable to engage in

> Form AC-542

* Form AC-543 .

ec?

A

a

& a

29

vf ‘Substantial ‘gainful work, “not merely the work in

which she Was engaged: ee See -enent_of Ver alle ged

disability: m

The medical evidence before the examiner iti this case

establishes without question that claimant's only impatr-

' ments are orthopedic impairments, consisting of a stiff

right keg and stiff right arm, which are the residuals of

an automobile accident ou May 22, 1952. The evidence

- further establishes. that claimant sustained sever? f-

ae

juries’ in that accident; including: a compound com-

minuted fracture of the right femur extending into the

right knee, and also a severe compound comminuted

fracture of the right elbow, requiring. skim and bone

transplants and prolonged hospitalizations. She has a

bony, fusion of the radins and. ulna of the right arn

and a completely ankylosed right elbow, with the joint:

fused at approximately a 135 degreeangle. There is also

complete ankylosis of the right knee: joint, and the right

leg is one-half inc ‘h. shorter than the left. The mght leg ~

ean be flexed only to 175 degrees, and for practical pur-

poses there is no motion in this joint in any direction.

It was observed by the examiner at the hearing that

claimant walked with a limp and_a stiff knee gait, and :

also sat with her right. leg stretched out in front of her

and practically straight. Although claimant is unable

to make a complete fist with her right hand, she can

e%tend her fingers well and has “good: adduction and

abduction of the thumb. ‘Other than her orthopedic im-

pairments claimant has no impairments whatever, and

~ is in excellent health. She has a high school education,

and has had considerablé experience. in various operfa-

_ tions in textile and shirt manufacturing plants, inelud-.

ing experience in instructing new employees. °°

. .

30

“It is worthy of. note in. this connection that claimant

has made no attempt’ to secure other employment, and

that she is not under any particular economic compul-

_sion to do so, in view of the fact that she*obtained a

substantial financial settlement of $55,000 in connection

-with her automobile accident, that her husband is stead-

ily emloyed, that they have no dependents, and own: their

home free and clear of encumbrance. f= oe

After a careful consideration of the evidence of record,

the examiner is compelled to find that claimant's ortho-

pedic impairments have not been of sufficient severity,

eithe> singly or in cembination, to prevent her from en-

gaging in some type of substantial gainful work, and

do not constitute a ‘‘disability,’’ within the meaning and

intent of the applicable provisions of the Social Security

Act, as amended. ». —~

It is, therefore, the decision of the hearing examiner

that the claimant Phinces D. Pearman, is not entitled

to AMisability | insurance henefits_or the ostablishment_of —————_—_——

we period. ef disability under her application filed oti

October 25, 1960. '

Merze P. ‘Lyon,

Hearing Examiner

Date: July 21, 1961 = Aes eee a ty