Ribicoff v. Hughes, 16716.

• Decision Date: 01 December 1961
• Docket Number: No. 16716.,16716.
• Citation: 295 F.2d 833
• Parties: Abraham RIBICOFF, Secretary of Health, Education and Welfare, Appellant, v. Ira HUGHES, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

295 F.2d 833 (1961)

Abraham RIBICOFF, Secretary of Health, Education and Welfare, Appellant, v. Ira HUGHES, Appellee.

No. 16716.

United States Court of Appeals Eighth Circuit.

December 1, 1961.

Marvin S. Shapiro, Atty., Dept. of Justice, Washington, D. C., made argument for appellant. William H. Orrick, Jr., Asst. Atty. Gen., William H. Webster, U. S. Atty., St. Louis, Mo., Morton Hollander, Atty., Dept. of Justice, Washington, D. C., were with him on the brief.

Paul B. Rava, St. Louis, Mo., made argument for appellee, and Robert Nagel Jones, St. Louis, Mo., was with him on the brief.

Before SANBORN, MATTHES and RIDGE, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from a judgment in an action brought by Ira Hughes against the Secretary of Health, Education and Welfare under Section 205(g) of the Social Security Act, as amended (42 U.S.C.A. § 405(g)), to obtain a review of a final decision of the Secretary disallowing the plaintiff's claim for a "period of disability" under Section 216 (i) (1) of the Act (42 U.S.C.A. § 416(i) (1)) and for disability insurance benefits pursuant to Section 223 of the Act (42 U.S.C.A. § 423). The judgment reversed the decision of the Secretary and remanded the cause with directions that the plaintiff's claim be allowed and that such benefits be granted to him as he would have been entitled to had his application been allowed.

The application of the plaintiff, filed March 13, 1957, with the Bureau of Old-Age and Survivors Insurance, of the Social Security Administration, was based upon the claim that he had been unable, because of a disability due to a back injury, to engage in any substantial gainful activity since May 15, 1951, when he was 46 years of age, and that, under the Social Security Act, he was entitled to the allowance of a "period of disability" and to disability insurance benefits. Initially, and upon reconsideration at the plaintiff's request, the Bureau disallowed the claim on the ground that he had not satisfactorily established that he was disabled within the meaning of the Act.

To establish a "period of disability" and entitlement to disability insurance benefits, an applicant such as the plaintiff must prove "inability 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 indefinite duration." 42 U.S.C.A. § 416(i) (1); 42 U.S.C.A. § 423(c) (2).

Social Security Administration Regulations No. 4, as amended 1957, § 404.1501(g), 22 F.R. 4362, 20 C.F.R. (1949 Ed.) § 404.1501(g), reads as follows:

"Impairments which are remediable do not constitute a disability within the meaning of this section. An individual will be deemed not under a disability if, with reasonable effort and safety to himself, the impairment can be diminished to the extent that the individual will not be prevented by the impairment from engaging in any substantial gainful activity."

The plaintiff challenged the rejection of his claim by the Bureau and requested a hearing before a Referee of the Social Security Administration. At that hearing which was held on July 29, 1958, at Moberly, Missouri, the plaintiff was the sole witness. The entire evidence consisted of his testimony and certain documents and doctors' reports.

The evidence of the plaintiff showed that he was born in 1904; that he went to country school and had a sixth grade education; that he has a wife and three children; that until he was about thirty years old he did farm work with his father; that the first time he hurt his back was when he fell down a mine shaft while working for his uncle; that he never got over that back injury; that he could do light work; that after he left the farm, at about the age of 30, he worked in Kewanee, Illinois, in a valve and fitting factory "a year or so"; that he subsequently went to Texas and worked in an aircraft factory during the war; that his job was inspecting parts; that it ended when the war was over; that he then came back on the farm with his father; that he got a job in a shoe factory at Brookfield, Missouri, staining the soles of shoes, from about 1946 or 1947 to about the summer of 1951, when he became sick, and on advice of his doctor quit the factory; that he was employed at a saw mill, where he sorted out wood, and was paid a dollar an hour; that at the end of three days he was struck on the right hip by a piece of wood kicked by a power saw, and was knocked "in a twist"; that this was in May 1951; that he made a claim for Workmen's Compensation, which was resisted and eventually settled; that it was about a year before he got it; that he did not try to work until after the settlement; that he worked as a school janitor in the last part of 1952 and up to the spring of 1953; that he had to quit because he "couldn't take it"; that he tries to mow the lawn or work around the house; that he has an ache and arthritis and gets nervous; that he can go out and do something, but his back will get to hurting; that he drove a borrowed car to the hearing before the Referee; that he had no one else to drive; that driving tears his nerves "all to pieces."

Plaintiff's evidence also showed that he was being paid $55 a month by the Missouri Department of Public Welfare; that that Department had sent him to various doctors; that his wife works as a clerk in a store for about $30 a week; that his wife's earnings and his welfare checks are his only income; that his worst disability is his back; that the "medical team of the Missouri Department, Division of Welfare wouldn't have approved" his application for welfare payments on the basis of permanent and total disability "if there'd been any cure" for his back; that his disability is "supposed to be permanent," which means "no cure"; that he has colon trouble and has "doctored it and doctored it" and is on a permanent diet for his colon; that his appetite comes and goes; that his weight is about normal; that even his own children bother him; that he would have to think about submitting to surgery. The plaintiff was asked by the Referee whether he believed he "could do some kind of sedentary work sitting down." His answer was: "I get more nervous sitting around the house, I do. I have to get up and get out * * *." Asked what he did with his time, he said:

"Oh, I just walk up town, and in fact, like I told my wife, it\'s quite a proposition. A lot of people might think — of course, I\'ll walk down to the electric shop, you know, or maybe go over to the park, they have a little park where they play base-ball. It used to be I could drive. I got to where I got so nervous I didn\'t want to drive."

There is more of plaintiff's testimony about himself, his back, and his inability to do anything either substantial or useful. Enough has been recited, we think, to show his capabilities, the kind of person he is, and his potentialities, if any, for any substantial gainful activity.

A report of a Field Representative of the State Division of Welfare of Missouri, dated February 21, 1958, shows that an application of the plaintiff for permanent and total disability was rejected by the Division in 1954; that two applications were rejected in 1955; and that he was "approved" in March 1956. It appears from a record of the State Division of Welfare, dated March 22, 1956, that a Medical Review Team of that agency certified that the plaintiff "has a physical or mental disability which renders him permanently and totally disabled."

A number of medical reports were included in the evidence. We do not propose...