# Petition for Writ of Certiorari — Beaver v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0721%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1963 - **Citation:** 371 U.S. 951 ## Text “2 *) a .* : (oP apy * + ft Office-Supreme Court, U.S, ae ~ FILED Po . 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.. — 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 * 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0721%3A2. Public record. Not legal advice.