Supplemental Statement — Beaver v. United States

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& % : ; | ' DEG 20, 1962

se ati, | JOHN F DAVIS CLERK

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In the Supreme Court of the United States

. Octoper Term, 1962 ? \

.

Frances D. PEARMAN, PETITIONER

“ANTHONY J. CELEBREZZE, SRCRETARY OF HEALTH

EDUCATION AND WELFARE -

“oN. PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

__ SUPPLEMENTAL STATEMENT AND »\

_REPLY MEMORANDUM OF PETITIONER :

Cuay S. Crovss

Beckley, West Virginia

Marvin R: Watson a

Grecmnood, South Carolina a

Attorneys for Petitioner |

INDEX.

CITAT IE INS

& ases: + "Page

- Aaron v. Fle miming, 165 F. Supp. 291 : “es. 10 a

Adams v. Flemming, D.C.V te 173 F. Supp. ST3° 7-10

Brady. v. Ribicoft, 195 F. Supp. 33 a)

Butler v. Flemming, ACNS ) ISS4F.2d 591 (1961) ee

Corbin v. Ribicoff, DC.W DSC. 204 F. Stpp. 65 af

Druminiski-v. .Ribjeoff, 194 F. Supp. 798° ; 6

Dunnv. Folsom,’D.C. Ark., 166 F. Supp. 44, 48 10

Grandstaff v. Flemming, 188 F. Supp. 4. oe

Ferran v. Fk'nuning, 293 Fed. 2d,.568 .- , ite 2

Foster v.;Ribicoff, 200 F! Supp: 99 pd Ree ae

Hall v. Flemming, 6 Cir.; 1961, 289 F. 2d 290 LOD,

Hier». Ribicoff, D.C.111961, 194 F.Supp.22 SE

Kerher v. Flemming, 2 Cir., 283 F. 2d 916 ee ae

King v. F —amcay F. 2d SOS on 1]

»’Kohrs v. Flemming 272 F. 2d 731 son ae |

Klimaszewski_ v. Flemming, (D.C.E.D. Pa. 1959) 176 .

F. Supp. 927 . : li

Pollak, v. Ribicoff, 300 F. Supp. 674 ul

Pruitt.v. Flemming, 182 F. Supp. 159 | ae:

- Randall v. Flemming, D.C. Mich. 1961, 192 F. Supp. IL 11

Ribicoff v. Hughes, 295 F. 2d-833 11

Roberson’v. Ribicoff (CA 6) 299 F. 2d 761 (1962) : IL i

Sampson v. Flemming, 189 F. Sup. 725 ee eG ae

Snelling v. Ribicoff, D.C.E. DSC. 198 F.. Supp. 432. :

(1961) . lt

Teeter v. Flemming, 270 F. ‘od 871 (CA 7, 1959) Sass ae

Underwood v. ‘Ribicoff (CA4) 298 F. 2d 850 (1962) S-M*

Universal Camera Corp. v. National Labor . Relations

Board, 340, U. S..474-497 ; a ie

Ww areheim v. Ribicoff, 194 Fed. SvPP. S33. 0: 5

Statutes: Page *

Administrative ProceilurceAct, 5 U.S.C.A. 1009(¢) 6

-. Labor Relations Act, 29 U.S.C.A., Sec. 160(e) 6

_ Social Security Act, Sec. 223, 43 U.S.C.A, 423 9°

Social Security Act, 42 U.S.C.A. Sec. 416(i) (1) (a),

Section 423(¢}(2) :

. &

No. Sd 7 ;

In the Supreme Court of the United States.

OctopeR TERM, 1962

Branxces D., PEARMAN, PETITIONER

sf g v. : e «

Antuosy J. CeLeBRezze, SECRETARY OF HEALTH

EDUCATION AND WELFARE

‘ .

ON. PETITION FOR A WRIT OF CERTIORARI FO: THE

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

‘

SUPPLEMENTAL STATEMENT AND

REPLY MEMORANDUM OF PETITIONER

ae >

PETITIONER'S EXPERIENC F, TR AINING AND

WORK: SKIL LS: :

REPORT OF C ONTACT. 12/31/57,. EXHIBIT 2,

| TR: 64

_**2. Daily Activities—Wage earner\cannot stoop or

a squat at all. Her right arm is stiff at the elbow,

and she is unable to get her hand to her head

or face. She was right-handed; is \rying to use

her left hand as she cannot close her fingers

on her right harid. \

\

“She does most of the cooking for heryelf and

her husband. She also does housework \except

heavy cleaning. She can do no hard work or

ironing or other jobs von require lifting of

heavy objects.

653.

2

Work: Experieyce—For uhout ten years prior

to her last job she, worked in shirt manufactur-

ing plants teaching various operations to* new

employees. She said she would fill in wherever

needed and did a variety of jobs including

checking, shipments’ to see that all orders were

properly filled and on time. :

‘The last three years she. worked for Riegel.

Textile, she cut samples and forwarded them to

the sales room in New York for use by the

salesmen.

~ “All of her jobs weré inside the plants. All

required her to be on her feet constantly. She

usually worked eight hours a day six days a

week with some overtime at various seasons.

She said she received a Christmas bonus fol-

lowing her accident in ‘May, but no serv ices

were performed after the accident.’

-

REPORT. OF CONTACT, 11/29 60, EXHIBIT 9,

TR. 78: > ¢

‘*We would also like to call-attention to the fact

at the present | time, due to arthritic condition in

her hands, she ‘is. not able to close the fingers on her

right hand sufficiently to grip anything. We also

noticed as she left the interview desk she walks

rather stiff-iegged and now. limps somewhat.”’

EVIDENC EOF PETITIONER? S. IMPAIRMENTS:

TR. 36:. . ° “

“QW hat type. of work did you do prior to the

sé A.

accident?

I cut samples for Reigel Textile put-up. a

-Q. Have you been able to do any of that kind of

_ work sinée the ace ident! 4s .

ON,

No. .

AL

an

‘6A

Q.

‘oA.

>

»

G in

You have visited the Vocational Rehabilitation

several times; is that true; over in my building,

where they tried to get you a job!?-

No. . |

Can you keep your balance when you walk? Do

youthave trouble? :

If I stumble I can’t catch myself. 1 have fallen

several umes, and would-mess up this bad arm.

I don’t have an elbow, and I don’t have skin

enough to fix back again.

You do have trouble keeping your balance?

I stumble.

. If there was an’ impairment in the street, you

would have trouble? .

Yes, | can’t catch myself.

Do you know of. any océupation or work you

could do with a reasonable amount of certainty

that you would not injure yourself?

No. I don’t -know what. it would be.

Isn't ‘it true that even some of the small things

you do make you fall?

That’s the reason I have to have a colored woman

’ to do the heavy work.

You have actually fallen some doing that type

work? .

Yes, in the,yard, I have fallen'several times.

I believe you can drive a-car for a short distance 2

If it is power operated. ;

You have just driven for a short distance?

Yes. My leg tired. i have never tried to drive

any distance.

‘*Q. Have you driven in crowded traffic conditions?

4 .

“*A, I have driven to Greenwood and back, and to

_ Honea Path and back, places like that.

TR. 52-53:

“*Q. The medical evidence seems to agree, as far as

all the doctors whose reports have been sub-

mitted here, and I don’t — there is any doubt

about the impairments you'have. The only ques-

‘tion before me is whether -or not those impair-

ments are of sufficient severity to prevent any

gainful work: Have you consulted the Vocational

Rehabilitation Department of the State of South

Carolina, to try to get some other job or get

training for another job? |

‘4, No. I can’t use a pencil, can’t use scissors, and .

' | figure there was no use, no point in it.

“*Q. You have a pretty good general education, you .

are a high school graduate. I was wondering if”

you had ever considered doing clerical work, or

_ whether you could do some clerical work.

‘*A. I can’t use a pencil any length of time. My fing-

ers cramp. I can hold a pencil, but can *t use it.

‘*Q.. Have you tried to teach pone to use your left

hand?

‘A. No. I have tried it different times; I have tried

it, but I can’t write le fthanded. .

Shans You don’t think there is any kind of work you:

could do tq earn money?

‘*A. I haven't been able to think of anything I could

do, at all.

/

EVIDENCE ‘OF P ETITION ER'S HY SB. AND: on

TR. 53: os vA bg

“*Q. You hei ‘ip her a great deal afound the house?

“a. Yes, it puts me through, péetty well.

/

/

o i)

- . ’

“©Q@. Isn’t it dangerous for ‘her to work because of

her unbalance?

"+A. Yes. She has fallen two or three times, and I had

to take her tothe doctor and have her arm sewed

up. She can’t protect herself with that arm, and

and she would fall every tame on her arm. The

stiff leg, she knocks it on almost anything that

sticks up, and it keeps me af raid about her falling

and getting hurt.

**Q. That's one reason you changed jobs?

‘‘A, Yes.”

‘THE CLAIMANT'S ATTENDING ' PHYSICIAN

- SAW HER ONCE MONTHLY: FOR OVER THREE

YEARS AFTER THE INJURY.- THE LAST TIME

~~ SAW-HER>-976/55; HE ADVISED. HER NOT FO

; WORK. Tr. 67, dixhibit #3.

AUTHORITIES CITED BY THE DEFEN DANT in’

45% OPPOSITION TO THE GRANTING OF THE

. WRIT ,

1)°. Grindstaff x. Flemming, 188 Fed. Sup. 44 (W.D.

N.C.). Lung condition was claimant’s major impair-

ment. Examining physicians reported pulmonary -re-

serve had not been reduced to such a degree as to pre-.

clude substantial gainful aétivity. Claimant's examining

" “physician advised the claimant net to work in dusty

occupations, and that his impairment did not preclude

employment in other occupations.

2) Sampson v. Flemming, 189 Fed. Sup. 725 (D.

Kansas). Claimant refused two jobs’ which were of-

fered him that examining physicians reported he w as

able to do. hie,” Ye

3) ‘Wareheim v. Ribicoff, 194. Fed. i: 533 (D.

Md.). Physical impairment relied upon was a_heart

ailme nt which had been classified .by . examining phy-

¢

6

sicians as Class Ll, which denotes a slight limitation

of physical activity under the American Heart Associa-

tion. Classifieation. }

4) Drumiski v. Rihiwoff, 194 Fed. Sup. 798 (D.

Alaska). The evidence, was that of a single examining

physician who expressed the opinion. that the claimant

was totally and permanently disabled. The same ex-

amining physician stated that: ‘*He- found no evidence

of any heart disease’, and that‘‘there is nothing about

the cardiovascular system that would prevert his

working.”’ :

5) Brady v. Ribicoff, 195 Fed. Sup. 35 (D.C.. Md.).-

The physical impairment upon which -the_claimant’'s _.

‘social security disability insurance benefits was de-

* termined thirteen months after the claimant's imsurance |

status had expired, There was no evidence that he had,,

_any « sability as of the date of the expiration of* his

insurance coverage.

6) Universal Camera Corp. ‘vy. National Labor Re- -

lations Board, 340 U..S. 474-497. In this case, the Court

construed Section 10(e) of the Nationai Labor Rela-

tion Act, as amended by the Taft-Hartley Act (29 U.S.

VA. See. 160(e ) and the Administrative Procedure Act

dD ULS.CLA. 1009(e), which requiresja revie wilig court

to set aside administrative action unsupported by ssub-

stantial evidence, and in making such determination, to

review the whole, record, and hefd/ that under those

statutes, the Court should take into account whatever

in the rgcord fairly detracts from the-weight of evidence,

atid that the Court is preeluded from Sustaining an order *

mie rely on. the basis of evidence. which in-and of itself

\ justifies it without taking into account contradictory,

evidences, or evidence from which conflicting infer rences

could be drawn’, and further considered that :

- Whether on the record as a Whole there is sub

stantial evidence to support ageney findings as a

question Which Congress has placed in the keeping .

of the Courts of Appeals. This Court will intervene

only in what ought to be the rare instance when

‘the standard appears to have been misapprehended

or grossly misapplied." Fe

7) Adams v. Flemming, 276 Fed. Dl. WO. The plain- ,

tiff, a comparatively young man, was Manager of the

Marine Service Department and Inland Claims. His sal-

ary was $9,000.00) a year, with twenty-four employees

under his supervision. His employer reluctantly arranged

for his retirement upon the claimant's judgment as to.

his physical condition. In support of his claim, he sub-.

~ mitted his affidavit outlining his medical history: since

1946, vith medical réports. The medieal reports which

_ he submitted indicated that treatment could control and |

eleviate’ “his complaint, which was a sinus condition.

None.of the doctors stated: that he was unable to engage

in any gainful substantial activity, Plaintiff, himself,

had every opportunity to testify as to how his sinus

condition adversgy affected, his ability to do, any work.

He did net do so, but relied on documents and reports,

and did. hot introduce any evidence along the lines mer.

tioned. in the reports.

ae

ARGUMENT AND AUTHORITIES

lt is apparent from the opinion of ihe ¢ es Court,

that the Court Inset rted two conditions and held -thaa-

"they were in effect precede nt to the claimant's entitle-

ment to social security disability insurcnce benefits,

namely : day Consultation with former empuover, and

‘thy Rehabilitation Officers and held that it was ineum-

bert upon the petitioner to comply. with those ‘conditions

to sustain her burden of. proof under 42 U.S.CLA.. See-

tion 41611) (1) 1a) and Section: 423 (e) (2) of the Net,

8

The Act is not suséeptible of that construction by its ex-

pressed terms or by implication. Such a construction

is contrary to all of the decisions of the Fourth Circuit.

Prior to the decision in the instant case, the case of

Underwood. v. Ribicoff, 4th Circuit, 298 Fed. 2d: 850,

the same Court had followed the decisions of Circuit

Courts generally and determined and so. held that there

‘ are four elements of proof to be ‘considered in making

a tinding: °

There are four elements of proof to be con- |

‘ sidered in making,a finding. of Claimant's ability

or inability to engage in atiy substantial gainful

_-activity. These are: (1) ‘the objective medical facts,

which are the clinical-findings of treating or ex-

amining physicians divorced from their expert

judgments or opinion as to the significance of these

; clinical findings, (2) the diagnoses, and expert med-

ical opinions of the treating and éxamining physi-

cians on subsidiary questions of fact, (3) the sub-

jective evidence of pain and disability. testified to

by Claimant, and corroborated by his wife and his —

neighbers, (4) ‘Claimant’s educational. background,

work history, and present age.” ,

The Court commented : ai oN at what Congress

has done, we do not think that it would have been willing |

to adopt the Seeretary’s suggestion if it had been ad-

vanced; at all events it has not done so. Even if the

question were more doubtful than it appears to us, we’

_ Should be in duty bgnnd to give the Act a liberal con-

struction. We would not be free to tailor the Act, even”

if we found the propdted restriction mga attractive.’

In Ferran, 293 Fed. 2d, 568, 5th Cir, the Court com-

mented in part: ‘‘The design: (of the Act) is, by a

_ comprehensive contributory insufance pian, to avert the

personal hazards and the social problems which often,

but pappily not always attend - age.’’

9 : * “igs Fs

Chief Judge Wyehe, D.C. S.C. June 22... 1962, in

Foster v. Ribicoff, 200 F. S..99, ‘a case similar to. the

instant case, reviewed: prineiples of law and fact ‘in-

volved, which ar? substantially the same as in the instant

case, His ‘review is the following: me =

Each and every claimant under the Social Security’

Act is efititled to have his or her case considered in

the’ light ‘of the ‘individual, particular facts and»

circumstances surrounding such a claiggg The very

wording of Section 223 of the Social Security Act,

42 U.S.C.A. ¢ 423, makes the point most strongly

that each case and each person mitst be considered

individually, That-section sets forth* that ‘‘every

individual” who meets the requirements and is under

a disability shall be entitled to a disability insurance *

benefit. The act is concerned not with:a standard

man of ordinary and customary abilities, but with

the particular person who may, claim its benefits

and the effg¢t of the impairment upon that person,

with whatever abilities or inabilities Le has. Thus,

‘if a medically determinable physical impairment

exists, the court should consider whether such im-

s eee i prevents the particular plaintiff from en-

in any substantial gainful activity, for which

he is ‘qualified, and to that end may consider. his

education, training, and experience, as well as the

nature and extent of the impairment itself.

Nowhere does there appear in the act any reference

to a requirement of ‘total disability’. The official

interpretation of this phrase vas presented to Con-

gress by representatiyes fof the Department: of

Health, Education and elfare, does not syppert

the position taken by: Ye defendant in. this case.

_ The Social Security. Administration, in an effort to

answer some of Senator By rd‘s questions, submitted

a statement setting forth their stand on the dis-

ability freeze provisions, See Page 43 of the hear-

ings. Therein the: Department acknowledged, that

the concept of “substangl gainful, activity’? is a

‘growing one which ax treated in cach instance

10

on the facts. The Department states on Page 43. of

the hearings:

the performance of substantial services.with reason-.

able’ regularity in some-competitive employment or

self-employment. It relates to the-range of activities

the individual can perform ** * complete helpless-

ness is not necessary to a finding of an allowable

disability. - Sporadic. or infrequent activity would

not necessarily establish ability. to’ engage in sub-

stantial gainful activity.”’

The phrases ‘*inability to perform any substantial

gainful activity’? and “totale disability”’ are not

- synonymous. ; .

In the determination of this ease, the controlling

questions are: (1). what can plaintiff do; and (2)

‘ what employment opportunities’ are there for a wom- -

an who can do only what plaintiff can dot Abstract

speculation by the Appeals Council as to a possi-—

bility of employment is not evidence which a claim-

ant should have to refute ; if it were, disability could

never exist.’ t; .

To summarize, the courts have generally agreed

that the test of a claimant’s disability or ge

to engage in any substantial gaihful activity is

; subjective one, that is, what is reasonably passible

in the light of the’ plaintiff’s* physical and mental

capacities and ‘his education, training, and_ experi-

ence. It is not necessary that the plaintiff

the complete absence of any opportunity for sub-

stantial gainful employment; he need only establish

that he hias become disabled from employment in any —

work or vocation in which he could profitably seék

employment in the light of his physical and mental

‘capacities and his education, training, and _experi-

ertce. Furthermore, it is clear that a plaintiff need

not be totally helpless or bedridden in er. to be

considered disabled under the Social Segurity Act.

- Dunn v, Folsom, D.C.Ark., 166 F.Supp® 44, 48;

Adams v, Flemming, D.C.Vt., 173 F.« Supp. 8738;

Aaron v. Fleming, D.C. Ala.,.168 F.Supp. 291, Hall

‘Substantial gainful activity means.

ablish .

ne

Th

v. Flemming, 6 Cir.,.1961, 289_ a 290; Kerner v.

Flemming, 2. Cir., 283 F.2d 916; Hier v. Ribicoff,

D.C. 1961, 194° F.Supp. 22; Randall v. Flemming, - ‘

D.C.Mivh. 1961, 192° F.Supp. 111; Snelling. v. Ribi-

coff, D.C.E.D.S.C., 198 F.Supp. 432 (1961); Corbin’

vy. Ribieoff, D.C.W.DS.C.,, 204 F. Supp. 65 (1962);

Butler v. Fiemming, (@A 5) 288 F.2d 591 (1961);

Underwood v. Ribieoff (CA4) 298 F.2d 850 (1962

. Klimaszewski v. Flemming, (D.C.E.D.Pa.1959) 176

F.Supp. 927; Ribicoff v. Hughes, 295 F.2d 833 (CA

8, 1961) ; Kohrs.v. Flemming, ‘272 F.2d. 731 (CA 8,

1959) ¢ Roberson v. Ribicoff, (CA 6) 299 F:2d 761

(1962); King v. Flemming,, 289° F. 2d 808 (CA 6,

1961); Teeter v. Flemming, 270 F.2d 871 (CA 7,

1959); Pruitt v. Flemming, 182 F.Sup. 159,8.D.W.

Va; : Pollak vy. Ribicoff, 300 Fed. 2d, 674.

~ In eonclusion, we desire to Specifically call the Court's

‘attention to the following facts: , }

- There is no dispute in the evidence in this CASE,

2) “This petitioner’s attending physici ian, who had

> seen her every month for a period of more than

three years after her injury, advised her not to

“Work in a report to the de ‘fe onal unt dated Jannary

13, 1958.

TS .

3) Before the hearing in this case, her former em-

+ ployer, who- had offered her cniployment atter

the injury and who did not know about. her

physical impairments, had’ gone out of business.

Respectfully submitted,

Cray S. Crovusk

Manvis R. Warsos «

™~