# Appendix — Hopkins v. Cohen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0146%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1968 - **Citation:** 390 U.S. 530 ## Text - - ordered to pay to the plaintiff the total amount ; of back payments of $254.00 per. month, begin- ning with and including January 1963, allowing for any increases or decreases: provided for by” | the Social Security Act, and monthly payments ~ ‘ in the future at the same rate provided -by law until such.time as the plaintiff. is found not to be entitled to such payments under the law. SE). Eschbach: J (Copies to:. Allen Sharp; : .W. Moellering) | Defendant files letter referred to as an exhibit ‘in his petition, filed 1-10-68, re: accrued benefits and approval of attorney fees, along with explan- atory letter of transmittal. . Order entered re: “Attorney Fees. (SE) Esch- bach: J (Copy to Allen.Sharp and U.S. Attorney) Plaintiff files Notice of Appeal, together with cert. of service. _- Act. d In rue Unirep States District Court - Norruern District or INDIANA. Hammonp Division AT Larayerre . - Civil No. 282 ’ Raymonp Hopkins, Plaintiff, maltees'!* _ AxtHowy. J. Ceesrezze, Secretary of Health, Education and Welfare, Defendant.” ‘NV ~ Comp.aint in Action To. Set Asipe ‘Decision | Unver Sociat Securiry Act—Filed July 2, 1964 | Jurisdiction of this Court is sought under the provisions. of Title 42, Section 405(g¢), United States Code (42 U.S.C.A. informed that his review of the Hear- ing Examiner’s decisign was denied and stands as the final — administrative decision on his claim. = “nn Plaintiff alleges that he has exhausted all of his admin- istrative remedies prior to the filing of this appeal. : | ; IV | _ Plaintiff’s denial of request for review to the Office of . - Appeals Council, Department of Health, Education and Welfare was styled: Raymond Hopkins, Claimant and Wage Earner, Social Security Account No. 305-05-2662, Claim for Period of Disability and denial of request for review of hearing examiner, Jack G. Graham, dated No- vember 27, 1963. The denial of request was. dated May 6, 1964. } : Vv. This action is instituted in the District Court of Northern District of Indiana in which the plaintiff resides. The plaintiff resides at RR #2, Williamsport, Warren County, ° State of Indiana, which is in Warren County, Indiane. The findings of fact by the Hearing Examiner. and Ap-- peals Council are not supported by substantial evidence. ‘The findings of fact by said hearing examiner and ap- peals council are contrary to law. PDP The conclusions of hearing ‘examiner and appeals coun- cil are contrary to the facts. : Vil * The plaintiff is totally and permanently disabled as a result of: a z 1. Gastritis and possible gastric ulcer. -2.- Duodenal diverticulum. . 3. Incisional hernia. . Wherefore, the plaintiff prays for review of the admin-- istrative determinatioris herein or in the alternative for the remand of this case for further consideration and review, and for all other proper relief in the premises. ; /s/ ALLEN SHarP i Allen Sharp, Attorney at Law ' + Williamsport, Indiana : ‘Telephone 762-3442 Attorney for Plaintiff & In THE UNITED STATES District Court For the Northern District of Indiana, | Hammond Division at Lafayette. ‘ Raymond Hopkins, : } ea A , ‘ ~ Plaintiff, vs. ytps, Anthony J * Celebrezze, Secretary of Health, Education, and Wel-.|. . fare, i: Lafayette — Civil No. 282. Defendant. 7 OnpER AND MrMmoraxDUM or Dectsion—September 30, 1965 - This matter is now before the court for disposition on _ ¢ross motions for summary judgment filed by the defendant - ~ April 26, 1965, and by the plaintiff.May 6, 1965. Judgment must be entered in favor of..the plaintiff. ie . This action is an appeal to review the determination of the Hearing Examiner, acting under the authority of the Secretary of Health, Education, and Welfare, that the plaintiff’s disability insurance benefits were properly dis- continued as of December 31, 1962, under the Social Secur-. ity Act, 42 U.S. C. $425. Review in this court, authorized by 42 U. S. C. § 405(g), is limited to questions of law * involved in the Secretary Ss determination and to a con- 9 . sideration of whether the Secretary’s findings of fact are supported by substantial evidence in the record. The plaintiff, an operator of power cranes and drag lines, was granted disability insurance benefits under thé Social Security Act after he became unable to work on August 26, 1960 at the age of 52. The benefits became effective as of March 1961 and were terminated as of December 1962 ’ on a determination by the Secretary that plaintiff was no longer ‘‘disabled’’ under the provisions of the Act. The termination of benefits was affirmed upon reconsideration. The plaintiff requested a hearing, which was held October 9, 1963. The Hearing Examiner affirmed the prior deter- mination and the Appeals Council _denied_plaintiff*s re- . quest for. review. on May 6, 1964. - This timely appeal is taken from determination of the Hearing Examiner, which _is also the final decision of. the ——- of Health, Educa- tion.and Welfare. The crucial question on review , by this court is “whether | there is substantial evidence to support.the finding that plaintiff’s. disability has ended. ‘‘Disability”’ is defined _ by the Act as ‘‘inability to engage in any substantial gainful activity by reason. of any medically ee physical « impairment: which can be expected . . . to be of long- ocstinned and indefinite duration.’’ 42 U. S, C. § 423(c) (2). Judge Friendly, writing for the court in Kerner v. Flem-. . ming, 283 F. 2d 916, 921 (2d -Cir. 1960), stated the issues involved in-a determination of disability under this section : ‘‘Such a determination requires resolution of two issues—what can applicant do, and what employment — opportunities are there for a man who can do only what applicant do? Mere theoretical ability to engage in substantial gainful activity is not enough if no _ reasonable opportunity fdr this is available. In reversing the district court’s affirmance of the Secre- et tary’s determination in a case similar to the instant case, - SAE ERT . “10 Judge Brown, writing for the court in Butler v. Flemming, - 988 F. 2d 591, 595 (5th Cir. 1961), stated that the test. of ‘availability of employment within the applicant’s compe- tence ‘was whether the evidence on the record contained ‘any indication of any specific work less exacting (than the — work from which he is now foreclosed) within his residual competency and reasonably available as a prospective source of employment in the general area where he lives.”’ _ The exhibits at the hearing in the instant case included = -reports and letters from five. doctors who had examined , ; the plaintiff. The reports of two of the doctors were pre- { _ sented to the Department of Health, Education, and Wel- fare before the plaintiff was declared to.be disabled and were the reports of the doctors who were treating the plain- tiff as a patient.-*The reports of the other three doctors _ were presented after the original award and were made by doctors solely for the: purpose of ascertaining whether or not the plaintiff’s disability continued. These reports establish that the plaintiff became disabled by reason of. a ventral hernia resulting from a gall bladder operation. Four attempts were made to’ repair the hernia, which ‘is about the size of a human fist. An examination in Febru- aty 1963 revealed that it exuded a ‘‘serum”’ that was appar- ently of superficial origin. In December 1963, Dr. Nelson stated that further attempts to repair the hernia would | probably be futile and that improvement was unlikely. The - Plaintiff has other physical difficulties, including almost eomplete blindness in- his left eye. 5 : The plaintiff has worked asa power crane or drag Jine operator in strip mines all his life except at one earlier - time when he did some farm work. Plaintiff’s testimony that he is unable to do farm work in his present condition +s uncontradicted in the record. He has a seventh grade } education and ean read, write, and do simple arithmetic, although plaintiff testified he is not very good at arith- ll _ Metic.. Joseph Ganns, a vocational rehabilitation expert, . testified at the hearing that -the plaintiff is ‘“limited’ in: - transfer of skills.’?~ 4 | ! __While the general burden of proving disability is upon the applicant, he is not required to ‘‘go down the list and verbally negative his capacity for cach (industrial occupa- tion) or their availability to him as an actual opportunity for employment.’’ Butler v..Flemming, supra, at 595. ‘The record in the instant case contains evidence of the possi- bility of plaintiff finding employment in only three job areas. This does not include“farming, which the record ; indicates without contradiction is. not within applicant’s - competency. The plaintiff, according to Mr. Gann’s evalua- tion, might be able to work as a truck driver or, if the medical conelusions of Dr. Levin are correct, at his former job as a crane operator if the lever controls are powered by more modern methods of electricity or air. The Hearing ' Hxaminer seemed to consider that plaintiff might also: be. able to drive a taxi, although Mr. Ganns declined to endorse ’ that proposition. ? ee : Mr. Ganns’ testimony that plaintiff might be able to drive a truck is not based on plaintiff’s physical capabili- ties, but on a study of the transferability of skills of a° person who has formerly been a ‘crane operator. There is no evidence in the record that plaintiff is physically capable . _of driving a truck or a taxi. Likewise, there is no evidence that any. such employment opportunities are reaso bly availableto a person with an unrepairable hernia as serious as that suffered by this plaintiff. Such jobs are generally accompanied by the lifting of the truck’s cargo or the’ luggage of taxi passengers, the opening of taxi doors that requires much awkward reaching, and other physical exer- tions beyond the competency of this plaintiff. The Hearing Examiner cannot stretch inferences so far that évidence of transferability of skills can support a conclusion of | 12 physical competency. . There was no evidence that a trans- ferability of skills exists from operating a crane to driving a taxi. Nor ‘is this court favorably viiebeiiial | to put it mildly, with the reasonableness of suggesting that a man who is . blind in one eye should be asked, ‘or even allowed, to seek employment as a truck driver or a taxi driver. . There certainly is no evidence in this record to indicate that such a man is reasonably likely to find an employer willing to - hire him as a truck or taxi driver. The vision requirements for obtaining a public passenger thauffeur’s license from —the State of Indiana almost certainly could not be met by a one-eyed man. The court finds that there is no evidence . . whatsoever to support the Hearing Examiner’s finding that plaintiff has any practical coisa to find’ employment driving a truck or a taxi. : If the Hearing Examiner’s determination is to stand it must rest on the reasonable availability to the’ plaintiff _of employment in his former-line of work. The Examiner’s conclusion that such employment is available and within ~ plaintiff’s competency must rest upon the reports of Dr. Stanley Levin, an expert in internal medicine, and upon ’ * the testimony ‘of Mr. Ganns. The record contains no other - | evidence to support such a conclusion. y It is significant that Dr. Levin nowhere ‘states in his reports that plaintiff is capable of engaging jin his former. regular work. He does say it is his opinion that plaintiff. can operate .a crane, but = ‘if heavy exertion is not required to move the levers.’? The only evidence on. the amount of exertion required is plaintiff’s statement that . pullfhg levers on a crane involved much more physical effort than shifting gears in a ‘car, and the testimony of” Mr. Ganns that operating levers in a ‘‘modern’’ crane_ required no more than fifteen pounds of arm pressure. The fact that plaintiff can n operate an automobile gear shift” ’ Pe ; : a . : Se h-e + * [4 —_— for short trips to town: and back, or even that he’i is capable of pushing and pulling .the levers on a ‘“‘modern” crane does not support a finding that he can operate a crane. There is no evidence in the record. indicating the capacity ‘of plaintiff ’*s arm pressure unless it is Dr. Levin’s report that plaintiff cannot lift anything weighing more than five or six pounds. There is no evidence that Dr. Levin had - ever moved the lever of a power crane or knew how much _ pressure was required to ‘thove one, and his opinion that plaintiff should be able to ‘‘operate levers’’ is not a sub- _ stantial basis for the Examiner’s conclusion that plaintiff was physically capable of operating the levers of a power crane as a full-time occupation. ‘‘Satisfaction of the claim- ant’s statutory obligation to show that he is not able to do any substantial work is to be judged i in a practical way.’’ Rathf v. Celebrezze, 338 F. 2d 978, 983 (6th Cir. 1964); Kerner v. Flemming, supra. The test for determining an applicant’ s competency and the availability of work, as ' stated by Judge Sobeloff, requires that the availability and the nature of the work be judged ‘‘in the light of what is reasonable and not of what ~is merely: conceivable.’’ - Thomas v. Celebrezze, 331 F. 2d 541, 546 (4th Cir. 1964). On this record there is\no evidence that plaintiff can reasonably work a power shovel on a full-tifMe basis, or that there is any practical likelihood that he could find an employer willing to hire someone with all of plaintiff’s physical limitations. Dr. Levin reported that plaintiff ‘‘will not be able to do : any bending Seyond that ordinarily associated with seden- tary occupation.’? The Examiner himself conceded at the hearing that a crane operator has to do some bending. Plaintiff’s testimony is unchallenged that the lifting of _ ables is sometimes involved and that there are times when a crane operator may have to climb around on the machine to do repair work. Such activities are admittedly beyond w : ein | plaintiff ’s physical competency. Dr. Levin reported that plaintiff could not do climbing ‘‘which would require a moderate amount of strain,’’ The Hearing Examiner sug- gested that plaintiff could use a ladder to climb the eight aes feet up to the crane.once in the morning, and’ down again _ at night, as. a means of circumventing plaintiff’s lack of ability. to climb onto the crane-in the ordinary way. Neither the plaintiff nor Mr. Ganns had any idea whether ‘ah employer would object to the inconvenience that. woyld be caused by such a method. Plaintiff agreed that he might be able to work levers and that he could climb up and down | the proposed ladder once a day, but protested that there was much more to the job than those two operations. His | testimony about the nature and details of the work is un- challenged throughout the entire record. .A work activity report filed by a claimg representative for the Secretary, and which is one of the exhibits in the record, describes plaintiff’s inability to lift anything or to be ‘‘climbing around shovel and rig”’ as factors that have an effect on the quality of plaintiff’s work as a crane operator. The _same report stated that plaintiff ‘‘had to use hands and feet to control levers and operate shovels (diesel and com- pressed air) for controls and brakes.’’ Mr. Ganns’ testi- mony that plaintiff could ‘‘probably’’ operate the levers on ‘‘modern cranes’? and climb up and down once a day and — that plaintiff’s ability to operate the levers depended on. . the body position is too speculative to support a finding that the plaintiff could reasonably and practically find and engage in work of this nature in view of his physical limi- tations. ‘‘There must be something more tangible estab- lishing what employment opportunities there are for a man with his impairment.’’ Stancavage v. Celebrezze, 323 F. 2d 373, 378 (3d-Cir. 1963). ‘A theoretical ability to so * engage is not enough if no reasonable opportunity is avail- able.’’ Celebrezze v. Warren, 339 F. 2d 833 (10th Cir. 1964). i ame | am = 15 “The Hearing ‘Examiner’s question about the number ‘of existing jobs for crane operators, directed to Mr. Ganns, -- was deliberately phrased to exclude ‘any inquiry as to the practical availability of employment of crane operators in * the construction industry for men with plaintiff’s physical limitations. Mr. Ganns’ answer; ‘‘Oh, yes, a lot of con- struction work is going-on,’’ casts no light on the avail- ability of job opportunities for this’ plaintiff. ‘‘Since the abstract ‘average’ man is not the standard to be used, * Pearman v. Ribicoff, 307 F. 2d 573 (4th-Cir. 1962), there must be evidence to show the reasonable availability of jobs which this particular claimant is capable of perform- ing.’’ Cyrus v. Celebrezze, 341 F. 2d. 192, 196-197 (4th Cir. ; 1965) ; Ray v. Celebreeze, 340 F. 2d 556 (4th Cir. 1965).- The evaluation by Judge Sobeloff of a case similar to the instant case is applicable here: ‘“Bmployers are concerned with substantial capacity, psychological stability, and steady attendance; they will not unduly risk increasing their health and lia- bility insurance costs. It.is unrealistic. to think that — they. would hire anyone with the impairment of: this claimant.’’ Thomas v. Celebrezze, supra at 546. Plaintiff urges that the rejection of plaintiff’s applica- tion for vocational rehabilitation by the Bureau of Old-Age and Survivors Insurance}, the: same bureau which termin- ated his disability benefits, should bind the Secretary in his determination of plaintiff’s disability. The rejection was based on a determination by the Indiana Vocational - Rehabilitation Division ‘on March 28, 1963 that plaintiff’s- , ‘‘impairment.(was) too severe.’’ ‘This court does not need to reach that point in view of the findings above. The situ- : ation, however, poignantly illustrates the dilemma of a person considered by the same agenty of government to be too disabled to learn a new job, yet not disabled enough to be entitled to his Social Security insurance benefits. 16 | fat = ‘ * the record to support the Secretary’s finding that plain- > tiff’s disability terminated as of December, 1962. There is . abundant evidence in the record to establish that plaintiff is disabled within the meaning of the Act and the cases, * even if such a conclusion were based solely on the reports - and testimony upon which the Secretary sought to base his — contrary conclusion. There’ is no apparent reason to re- take testimony, and no such request has been made. The litigation has already consumed’ more than two and one- half. years since plaintiff’s benefits were terminated. Cyrus v. Celebrezze, supra; Ratliff v. Celebrezze, supra. . * _ The decision of the Secretary of Health, Education, and Welfare terminating plaintiff’s disability benefits ‘as of December, 1962 is reversed. The Secretary is ordered to allow and pay disability benefits to the plaintiff from the time of their termination until such time as a new de- termination is made that plaintiff’s disability has, in fact, ‘terminated. The period of disability must include: at least the period until the date of the hearing from which this - appeal is taken. bis Entered this 30th day of September, 1965. Jesse E. Escusacs, United States District Judge. This court finds that there is no substantial evidence in. mand the casé or give the Secretary further opportunity to _ eA tha ox Canin cei he athe Da CctanT s: i" . - ° ’ [y tHe Unitep Statrs District Court. Perrrion. TO DETERMINE ACCRUED Brwerrts anp PEtrrion FoR APPROVAL OF AGREEMENT FOR ATTORNEY Frrs—Filed January 10, 1966 Raymond Hopkins, being first duly sworn upon his oath, respectfully represents. to the Court as follows: 1. That heretofore on the, 30th day. of September, 1965, this Qourt entered its judgment in this case which. judgment | is hereby incorporated herein by reference. The Court’s particular attention is now directed ‘to the following sentence of the Court's judgment, to-wit: “The Secretary is ordered to allow and pay dis- ability. benefits to the Plaintiff from the time of their termination until such time as a new determination is made that the Plaintiff’s disability has, in fact, termi- nated.” 2. That a notice of pre ae was filed by the Defendant in this case on or about the.26th day of November, 1965, which notice of appeal was @ismissed by the order of this Court on the 30th day of ember, 1965. '3. That as shown at page 85 of the transcript orig- inally filed inthis cause at ‘the time said benefits were - terminated on the 31st day of December, 1962, Raymond Hopkins. and. Verna B. Hopkins, his.wite, were receiving a montlily benefit in. the sum of One Hundred Sixty-One ‘Dollars and Forty Cents ($161.40) and there was an addi- tional sum of $92.80 ‘payable for the minor children .of Raymond Hopkins and Verna B. Hopkins. That the total henefits paid and payable atthe said time were Two Hun- dred Fifty four Dollars ($254.00) per month, That as 18° shown by said determination of award at page 85 of said transcript, which determination was dated September 13, 1961 and approved September 14, 1961, the primary amount’ was in the sum of One Hundred Fifteen Dollars ($115.00). That effective January 1, 1965 there was a seven per cent (7%): increase in said benefits and the primary amount in this case would have been adjusted to’ approximately One Hundred Twenty-three Dollars ($123.00). hat on the basis of the above and foregoing determination it is believed by. the undersigned. that be- tween January 1, 1963 and the present time the under- signed claimant would be entitled to at least thirty-six. — (36) months of benefits at Two Hundred Fifty-four Dol- © lars ($254.00) per month or a total of Nine Thousand One Hundred Forty-four Dollars ($9,144.00). In addition to this there would be a seven per cent (7%) increase for _ benefits accruing after January 1, 1965. 4. That-on'this 6th day of January, 1966, the Attorney for the undersigned claimant, namely, AllengSharp, Wil- liamsport, Indiana, conferred with the Deputy United States Attorney for the Northern District of Indiana, namely, Mr. Joseph F. Eichhorn, with ,reference to the -* mount of accrued unpaid and ‘past due benefits payable pursuant to the order and judgment of this Court entered September 30, 1965. Said Mr. Joseph -F. Eichhorn related to said Allen Sharp that on the basis of a communication _ from the office of the Attorney General of the United States that. the Defendant Secretary of Health, Educatjon and Welfare would pay the sum of Three. Thousand Seven Hundred Forty-four Dollars and Eighty Cents ($3,744.80) as accrued past due and unpaid benefits in this case. That in the month of December, 1965, representatives of the Defendant Seeretary of Health, Education and Wel- fare, Social Security Administration Office, Danville, Ili- - nois, requested of the undersigned claimant certain infor- mation with reference to his income and his condition since January 1, 1963. :That the undersigned provided all re- quested information. That in substance the information PB a isnsiscrccecacitice.. : Biliaie inet Be ti Pia iytn lew ESD eo . : a . re . e { . . provided was to the effect’ that since January 1, 1963 the. undersigned has earned*no income and that his wife has earned no income and that his minor children have earned no income and that his physical situation with reference ' to disability has remained the same. That’ the indicated determination of unpaid and accrued benefits by the Defendant Secretary of Health, Mduéation and Welfare is not consistent with the order and judgment of this Court heretofore entered herein. That the Defen-: dant Secretary should be ordered to pay disability benefits from January 1, 1963 until the. present time. That there has not been a new determination that the Plaintiff’s. dis- ability has, in.fact, been terminated. 5. That at the time the undersigned Plaintiff engaged | the legal services of Allen Sharp a written contract and - agreement with reference to said services. was entered into, the same being dated May 12, 1964, a copy of which agreement is attached hereto and incorporated herein by — reference. That prior to the preparation and execution of said agreement the said Alen Sharp carefully examined certain court decisions with reference to attorney fees in such proceedings as these. In particular he examined the. ease of Sheppard v.' Flemming, 189 F. Supp. 571; and Sparks v. Celebrezzc, 228 F. Supp. 508. That this agree- ment was entered ‘into and signed openly. and freely. by both parties prior to the enactment and effective date. of Public Law 89-97, the effective date of which was July | 30, 1965. Said Public Law 89-97 is found in Title 42, United States Code Annotated; 1965 Cumulative Annual Pocket Part at Section 406(b) (1). That pursuant to said employment agreement said Allen Sharp has rendered efficient and faithful service, has ad- vanced the suns for filing fee and other costs in this action, has made numerous trips to "Lafayette, Indiana, has made - numerous. long distance calls to. both the Social Seeurity Administration Office in Danville, Hlinois, to the Clerk of the U. S. District Court at Lafayatte, Indiana and to oo oe oe: 2 — the office of the United States Attarney in Fort Wayne, Indiana. That said Attorney has carefully examined the transcript in this case, has prepared: numerous and exten- sive memorandum of law in this case, has spent many days" in research in preparing memoranda and briefs. That subsequent to the filing of the notice of appeal by the De- . fendant in this case on November 26, 1965, said attorney spent one full day in the Library of the Chicago Bar Asso- ciation examining briefs and records of appeal and other - similar cases. That the undersigned believes that said . fee agreement was fair at the time it.was entered into and believes that it is fair now. That the undersigned prays _ the Court.for an order approving said fee agreement. Wherefore, the undersigned prays the Court for an order determining the amount-of unpaid accrued disability bene- - fits pursuant to the judgment -and order of this Court ‘entered September 30, 1965 and approving the agreement for employment and attorney fees entered into on the 12th day of May, 1964: . eisee" /s/ Raymond Hopkins. hed if Pe hana Clee V0 a All IID StL i ice 0 Ah my 00 3 Ol iS ta ‘ CMA nae Saavik Dain RS ts EOC IG HBP AIS II Me ew ® . 21 MEMORANDUM. - — -- The record speaks for itself with reference to the deter- mination of benefits payable under the Court’s order. With reference to the matters of attorney fees the under- signed Attorney carefully examined the decisions with reference to the same at the time the employment agree- | ment was entered into. At that time the court decisions were to the effect that a contingent fee contract could be entered into with refererice to disability proceedings in— United States District Courts. vias eee . There was no regulation as to the amount of fees at - that time. In fact, in the case of Sheppard v. Flemming, 189 F. Supp. 571, which is cited with approval in ’Cistalle. ‘v.* Secretary of Health, Education and Welfare, 238 F. Supp. 340 (1965) Western -District: of Louisiana, a con- tingent fee contract similar to the present one was ap- . proved. The undersigned attorney does not intend to vio- - ' late the provisions of Public Law 89-97 which was effective ‘July 30, 1965. Therefore, we desire the matter of attorney fees to be completely before the ‘Court and would request the Court to approve the agreement of the parties if the ‘Court is persuaded, as we are, that the limitation placed in Public Law 89-97 does not apply to an agreement made _in good faith and openly and in aceord-with court decisions _ prior to the effective date of that Aét. - Certainly we will abide any decision the Court makes in this regard. We are also prepared to submit expert evidence to the Court with reference to the reasonable value of. attorney © fees should the Court desire to receive the same. Respectfully submitted, /s/ Allen Sharp. Certificate of Service. The undersigned certifies that on this 7th day of Jan- uary, 1966, he deposited in the United States Mail at’ Wiltiamsport, Indiana, postpage prepaid, a copy of the above and foregoing document properly addressed to Jo- seph F. Eichhorn, United States Attorney, Fort Wayne, Indiana. | | . | _ /s/ Allen Sharp, Attorney at Law, Williamsport, Indiana, — Attorney for Plaintiff. State of Indiana, 2 | County of Warren, ss. | The above Petition was subscribed and sworn to before me, a Notary Public in and for said County and State, on this 7th day of January, ‘1966. (Seal) Notary Public. My Commission Expires April 9, 1966. - J/s/ Allen Sharp,- nis” Bes Dh tae i Pi CaS Da a RUS LR CTS OME Ve bites b Rapa SRA C2 ° ATTACHMENT TO PETITION. 23 " AGREEMENT FOR EMPLOYMENT—May 12, 1964. | ‘This memorandum of agreement made and entered into between Raymond Hopkins and Verna B. Hopkins, hus- -~ band and wife, of Warren County, Indiana, First Parties, and Allen Sharp of Williamsport, indians, Second Party, | - Witnesseth that Whereas the first party Reayncnd Hopkins has a dis- ability claim now pending with the Social Security Adminis- tration and desires to pursue the same in court, Whereas, Allen Sharp ) is an Attorney at Law, duly licensed to practice law in the State of Indiana, . Now, Therefore, it is agreed between the parties hereto .as follows: _ 1. That the First Parties agree to employ the Sead Party as Attorney to ptsue this-claim in the United States District Court and the United States Court of Appeals, if , necessary. Said Attorney shall be _ compensated on the following basis? a. In the event-an award is awarded by decision of the _ United States District Court the Second Party shall be paid an amount equal to forty per cent .(40%) of the benefits accrued from January 1, 1963 to the date of said award: — b. In event it is necessary to appeal to the United States Court of Appeals, said Second Party shall be paid an amount equal to fifty per cent (50%) of the benefits from J ge 1, 1963 to the date of said award. That the Second Party agrees to use his best profes- meee abilities and to. — his best professional time to’. “this. claim. In Witness Whereof, the Parties have Libirdamto set | their hands dnd seals at. Williamsport, Indiana, on this 12th day of May, 1964. _ Raymond Hopkins, —S_- (Seal) Verna B. Hopkins, ~~ (Seal) vi | First Parties, Allen Sharp. .- e(Seal) + APPENDIX V_ Lament {Si 305-85-2662-I1A32, HC 3, 2 District Office, Danville, Illinois, [os ied: January 24, 1966. Mr. Raymond Hopkins, sae Rural Route 2, - ai Williamsport, Indiana .47993, Dear Mr. Hopkins:- * s - “We are writing about your claim for socjal security | benefits. | | | : , Ithas been determined that you are still disabled. There- - fore, you and your family will continue to receive benefit payments. - ° arrangement,‘ and it seems a very reasonable choice to make the remedy apply to all pending cases. 3. 2 Sutherland, Statutory Construction 115 (3rd ed. 1943). 4. ‘It has come to the attenfion of the committee that attorneys have upon occasion charged what appear to be inordinately large fees for representing claimants jn Federal district court actions arising under the social security program. Usually, these large fees result from a contingent-fee arrangement-under which the attorney is entitled to a percentage (frequently one-third to one-half) of tL PLE BP ARE ANE Bnet NA Meant ba ge af etinetiemeninaaitie a . 33 J The fourth circuit has held the statute applicable where judgment was entered after the enactment, notwithstand- ing the existence of a prior fee corftract.> - We find no basis for any construction which would exempt the allowance of fee in the instant case from the application of the statute. _ The base upon which the. 25 percent maximum is to be computed. Mr. Sharp points out that although the past-due benefits for Raymond Hopkins individually, accrued to the end of 1965 (something less at date ‘of . Judgment) were some $3,700, the judgment also deter- - mined, in actual though incidental, effect, that Mrs. Hop- kins and the children were entitled to benefits, so that some $8,000 were the real total amount recovered for the Hopkins family as a result of Sharp’s. efforts. He contends that thé 25 percent limitation should be com- puted upon the larger figure. aes The key word is ‘“claimant,’? as used in sec. 406 (b) (1)... That statute operates ‘‘whenever a court renders a — _Judgment favorable to a claimant,’’ the claimant must have been ‘‘represented before the court by an attorney,’’ and the maximum limit of attorney’s fees is measured by a percentage of the benefits ‘‘to which the claimant is entitled by reason of such judgment.’’ The word ‘‘claim- ant’’ is found in the preceding subs. (a), which deals with | the accrued benefits. Since litigation necessarily involves a con- siderable lapse of-time, in many cases large amounts of accrued benefits, and consequently large legal fees, are payable if the claimant wins his case. nae is 3 “‘The committee bill would provide that whenever a court _ Tenders a judgment favorable to a claimant, it would have express. authority to allow as part of its judgment a reasonable fee, not in excess of 25 percent of accrued benefits, -for services rendered in connection with the claim; no other fee would be payable. ...”’ S. Rep. No. 404, 89th Cong., Ist Sess. 422 (1965), U. S. Code Cong. & Admin. News 1965, p. 2062. : 5. Lambert v. Celebrezze (4th Cir. 1966), 361 F. 2d 677, 679; Redden v. Celebrezze (4th Cir. 1966), 361-F. 2d 815, 816. : representation of claimants in administrative proceedings before the secretary. -. - Mr. Sharp would contend that .‘‘claimant’’ may ‘be read in the plural and includes those whose right to what may be termed derivative benefits is established by the judg- ment in favor of one found to be entitled to what may be termed primary benefits. If Mr. Hopkins is the .only ‘‘claimant,’’ the district court correctly limited the fee to 25 percent of the past-due benefits accrued to him. If his wife and children are also ‘