SSR 73-60c: Rescinded 1981

20 CFR 404.1502, 404.1505 AND 404.1506

SSR73-60c

Waldron v. Secretary , 344 F. Supp. 1176 (D. Md., 1972)

Where a claimant with a history of emotional instability and antisocial

activity but without psychosis or organic brain symptomatology had,

because of this history, been committed to a State institution pursuant to

a State "defective delinquent" statute, and where he alleges that his

commitment and confinement as a result of his medical history, establishes

his inability to engage in any substantial gainful activity, and where

there was no medical or other evidence that his antisocial actions were

compulsive or uncontrollable, held , claimant's commitment and

confinement do not, by themselves, require a finding of disability; the

claimant must prove that it is his impairment and not his confinement

which precludes his engaging in substantial gainful

activity. [*]

MILLER, District Judge : This is an action under 42 U.S.C. §405(g)

to review a final decision of the Secretary of Health, Education and

Welfare denying the plaintiff disability benefits under 42 U.S.C. §§416(i)

and 423. The initial decision by a hearing examiner on August 27, 1970,

denying benefits became the final decision of the Secretary in this case

when the Appeals Council denied plaintiff's request for review on

September 25, 1970. The defendant has moved for summary judgment.

The plaintiff, upon conviction of breaking and entering in the Circuit

Court of Anne Arundel County, Maryland on April 17, 1968, was sentenced to

five years imprisonment. Later after a diagnostic evaluation and a

judicial hearing, he was adjudicated to be a "defective delinquent" by a

Maryland court of competent jurisdiction under art. 31B, §1, et. seq.,

Md. App. Code (1971 Repl. Vol.)

The plaintiff, upon conviction of breaking and entering in the Circuit

Court of Anne Arundel County, Maryland on April 17, 1968, was sentenced to

five years imprisonment. Later after a diagnostic evaluation and a

judicial hearing, he was adjudicated to be a "defective delinquent" by a

Maryland court of competent jurisdiction under art. 31B, §1, et. seq.,

Md. App. Code (1971 Repl. Vol.)

Patuxent is a medium security institution established for the treatment of

recidivists whose criminal activities are occasioned, at least in part, by

mental disorders. Tippett v. Maryland , 436 F.2d 1153 (4th Cir.

1971), cert. granted 404 U.S. 999 (1971) cert. dismissed as improvidently

granted sub nom. Murel v. Baltimore Court , --U.S.--40 L.W. 4776

(1972). Commitment to Patuxent must be subsequent to a criminal conviction

but the commitment proceeding is civil in nature. Confinement, after a

judicial determination of an individual's "defective delinquent" status,

is for an indefinite period of time subject to periodic petitions for

review in the state courts. An individual may also obtain release through

the decision of the Patuxent staff.

On December 17, 1969, plaintiff filed with the Secretary an application

for disability insurance benefits alleging therein that he had been unable

to work because he was a "defective delinquent." After a hearing at which

plaintiff and an employee of Patuxent Institution testified and after

reviewing certain records relating to the plaintiff the hearing examiner

denied the application primarily on the ground that the plaintiff had not

sustained his burden of proof and that the evidence failed:

. . . to establish that the claimant's impairments were of such severity

as to preclude him from engaging in substantial gainful activity for any

continuous period beginning on or subsequent to June 1968 that has lasted

for at least 12 months. (tr. 16).

r

denied the application primarily on the ground that the plaintiff had not

sustained his burden of proof and that the evidence failed:

. . . to establish that the claimant's impairments were of such severity

as to preclude him from engaging in substantial gainful activity for any

continuous period beginning on or subsequent to June 1968 that has lasted

for at least 12 months. (tr. 16).

The only issue before this court is whether the final decision of the

Secretary is supported by substantial evidence. 42 U.S.C. §405(g). Vitek v. Finch , 438 F. 2d 1157 (4th Cir. 1971).

To qualify for disability insurance benefits and a period of disability

under §223 and §216(i) of the Social Security Act (42 U.S.C. 423 and

416(i), an individual must meet the insured status requirements of these

sections, be under age 65, file an application for disability insurance

benefits, and be under a "disability" as defined in the Act.

* * *

The defendant agrees that plaintiff had worked a sufficient number of

quarters to meet the insured status requirements of the Act.

The plaintiff testified that he was born on June 22, 1942 and has an

eighth grade education. He has worked as a plumber, electrician, shrimper,

short-order cook, truck driver, taxicab driver, and service station

attendant. He completed an eight-week course in welding at Patuxent and

substantially completed a correspondence course in refrigeration and air

conditioning. He makes plumbing repairs regularly at the Institution when

the situation demands. His physical health is good and he regularly

engages in weight lifting activities in the gymnasium at the

Institution.

The plaintiff was previously convicted of auto larceny in 1952, a Dyer Act

violation in 1956, an assault and beating in 1960, an assault and battery

in 1961, a parole violation in 1962, a trespassing in 1962, and grand

larceny in 1962.

tion when

the situation demands. His physical health is good and he regularly

engages in weight lifting activities in the gymnasium at the

Institution.

The plaintiff was previously convicted of auto larceny in 1952, a Dyer Act

violation in 1956, an assault and beating in 1960, an assault and battery

in 1961, a parole violation in 1962, a trespassing in 1962, and grand

larceny in 1962.

Plaintiff received psychiatric treatment for about two years starting when

he was 12 years old because he was continually running away from home. In

1968, prior to his latest conviction, he was evaluated at Clifton P.

Perkins State Hospital, in Maryland, where he was diagnosed as having a

sociopathic personality, antisocial type. The evaluation at Patuxent found

no obvious clinical evidence of psychosis. He was not hallucinated nor

delusional, nor was there evidence of psychotic thought disorder. The

Patuxent staff, in a report dated August 20, 1968, stated that his

emotional instability coupled with his history of antisocial activity made

him a serious danger to society and qualified him for commitment as a

defective delinquent within the meaning of art 31B §1, et seq., Md.

Ann. Code (1971 Repl. Vol.). (tr. 61-63).

Plaintiff argues that his commitment and confinement as a "defective

delinquent" constitute sufficient evidence of a disability by reason of a

mental impairment on the theory that his confinement resulting from his

defective status prevents his being engaged in any substantial gainful

activity.

uent within the meaning of art 31B §1, et seq., Md.

Ann. Code (1971 Repl. Vol.). (tr. 61-63).

Plaintiff argues that his commitment and confinement as a "defective

delinquent" constitute sufficient evidence of a disability by reason of a

mental impairment on the theory that his confinement resulting from his

defective status prevents his being engaged in any substantial gainful

activity.

The burden of proof rests upon the plaintiff to establish his entitlement

to disability insurance benefits under the Social Security Act. Cyrus

v. Celebrezze , 341 F.2d 192 (4th Cir. 1965). The findings of the

Secretary as to any fact, if supported by substantial evidence, shall be

conclusive. 42 U.S.C. §405(g). Substantial evidence is more than a

scintilla but less than a preponderance and must be based on the record as

a whole. Vitek v. Finch, supra; Thomas v. Celebrezze , 331 F.2d 541

(4th Cir. 1964); Bolas v. Celebrezze , 316 F.2d 498 (8th Cir.

1963).

The hearing examiner's decision was guided by the Secretary's Regulations

promulgated under the authority of Section 205(a) of the Social Security

Act, supra . Evaluation of disability is discussed in 20 C.F.R.

§404.1502, which specifies that primary consideration must be given to the

severity of the claimant's impairment. Section 404.1502 provides in

pertinent part:

Consideration is also given to such factors as the individual's age, to

education and work experience. Medical considerations alone can justify a

finding that the individual is not under a disability where the only

impairment is a slight neurosis, slight impairment of sight or hearing, or

other slight abnormality or a combination of slight abnormalities. . .

.

vides in

pertinent part:

Consideration is also given to such factors as the individual's age, to

education and work experience. Medical considerations alone can justify a

finding that the individual is not under a disability where the only

impairment is a slight neurosis, slight impairment of sight or hearing, or

other slight abnormality or a combination of slight abnormalities. . .

.

To be considered disabled, the Regulation goes on to state, it must be

established that the physical or mental impairments are of such severity

(i.e. result in such lack of ability to perform significant functions as

moving about, handling objects, hearing, speaking, reasoning, and

understanding) that the individual is not only unable to do the previous

work, or work commensurate with previous work, but cannot, considering his

age, education, and work experience, engage in any other kind of

substantial gainful work which exists in the national economy.

The examiner next considered the Regulation discussing personality

disorders. 20 C.F.R. Subpart P, App. §12.04. That Regulation provides, in

pertinent part, that for a personality disorder to be considered

disabling, the disorder must be:

Manifested by marked restriction of daily activities and construction of

interests and deterioration in personal habits and seriously impaired

ability to relate to other people and persistence of one of the

following:

* * *

G. Life-long, habitual, and inappropriate patterns of behavior manifested

by one of the following:

* * *

isorder to be considered

disabling, the disorder must be:

Manifested by marked restriction of daily activities and construction of

interests and deterioration in personal habits and seriously impaired

ability to relate to other people and persistence of one of the

following:

* * *

G. Life-long, habitual, and inappropriate patterns of behavior manifested

by one of the following:

* * *

(2) Antisocial or amoral behavior (including pathologic sexuality)

manifested by: (a) inability to learn from experience and inability to

conform with accepted social standards, leading to repeated conflicts with

society or authority and (b) by psychopathology documented by mental

examination and the results of appropriate, standardized psychological

tests;

The plaintiff appears to have the requisite persistent antisocial or

amoral behavior. The hearing examiner, however, found that such behavior

alone did not constitute a "disability" because of the personality

disorder was not: "Manifested by marked restriction of daily activities

and construction of interest, and deterioration in personal habits and a

seriously impaired ability to relate to other people . . . . (tr. 13).

The plaintiff has worked before, in between, and even during this period

of incarceration. The hearing examiner found that the plaintiff is

mentally and physically capable of performing in any of his past

occupations. That conclusion is substantially supported by the evidence.

Plaintiff's mental disorder is not of the severity which is required by

the Act and Regulations in order to qualify him for disability

benefits.

n between, and even during this period

of incarceration. The hearing examiner found that the plaintiff is

mentally and physically capable of performing in any of his past

occupations. That conclusion is substantially supported by the evidence.

Plaintiff's mental disorder is not of the severity which is required by

the Act and Regulations in order to qualify him for disability

benefits.

The plaintiff points to Marion v. Gardner , 359 F.2d 175 (8th Cir.

1966), for support of his claim. That case illustrates one pole, however,

of the distinction between incarcerated individuals with personality or

behavior disorders which result in "disability" and those whose disorders

do not result in "disability." Marion dealt with an individual

suffering from medically diagnosed uncontrollable sexual urges

which had resulted in his confinement under the Minnesota Psychopathic

Personality Act, Minn. Stat. Ann. §526.09-526.11 (1947). The other pole is

illustrated by Pierce v. Gardner , 388 F.2d 846 (7th Cir. 1967),

cert. den. 393 U.S. 885 (1968). In Pierce no uncontrollable impulse

was shown, but rather the evidence was that the claimant there was not

mentally ill or deficient but had a "sociopathic personality with

pedophilic tendencies" which resulted in his propensity for the

commission of crimes.

In this instant case, the plaintiff has been diagnosed as having a

"Sociopathic Personality Disorder, Antisocial Type" by the Patuxent staff

(tr. 67), but without psychosis or organic brain symptomalogy (tr. 67).

There was no medical or other evidence that his antisocial actions were

compulsive or uncontrollable. As previously indicated, he worked in the

Institution as a plumber and had participated successfully in several

vocational training courses. His behavior within the Institution generally

was good and he occupied a status of having maximum privileges within the

framework of Patuxent

7).

There was no medical or other evidence that his antisocial actions were

compulsive or uncontrollable. As previously indicated, he worked in the

Institution as a plumber and had participated successfully in several

vocational training courses. His behavior within the Institution generally

was good and he occupied a status of having maximum privileges within the

framework of Patuxent. The hearing examiner had substantial evidence upon

which to find that the personality disorder of the plaintiff did not so

severely restrict the daily activities, constrict the interests,

deteriorate the personal habits or impair the ability to relate to other

people on the part of the plaintiff as to constitute a disabling

impairment within the meaning of 42 U.S.C. §223.

There is an important difference between an impairment which results in an

inability to perform the physical or mental functions necessary to engage

in substantial gainful activity on the one hand and antisocial behavior

which results in confinement on the other. In the latter case, it is the

confinement rather than the impairment which precludes the individual from

engaging in substantial gainful activity. The Act does not intend for

simple incarceration to result in a finding of disability. Pierce v.

Gardner, supra , at 848; Marion v. Gardner, supra at 182; Hunter v. Secretary , H.E.W., at 284 F. Supp. 524 at 526 (E.D. Pa.

1968).

on the other. In the latter case, it is the

confinement rather than the impairment which precludes the individual from

engaging in substantial gainful activity. The Act does not intend for

simple incarceration to result in a finding of disability. Pierce v.

Gardner, supra , at 848; Marion v. Gardner, supra at 182; Hunter v. Secretary , H.E.W., at 284 F. Supp. 524 at 526 (E.D. Pa.

1968).

The facts of this case bring it more within the rationale of Pierce v.

Gardner, supra , than of Marion v. Gardner . Here the evidence

supports the hearing examiner's decision that the plaintiff's propensity to commit crimes caused by an underlying personality

disorder does not preclude him from engaging in substantial gainful

activity. Certainly the evidence did not require the hearing examiner to

find that the plaintiff had uncontrollable urges to commit crimes

caused by a severe mental or personality disorder which does preclude him

from engaging in substantial gainful activity. There being substantial

evidence supporting the hearing examiner's decision, the defendant's

motion for summary judgment must be granted.

[*] This ruling supplements

interpretation of the law and regulations illustrated in SSR 70-12a, C.B.

1970, p. 83.