Crouch v. Ribicoff

• Decision Date: 01 June 1962
• Docket Number: Civ. A. No. 3078.
• Citation: 205 F. Supp. 132
• Parties: Neta Belle CROUCH, Plaintiff, v. Abraham RIBICOFF, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — District of South Carolina

205 F. Supp. 132

Neta Belle CROUCH, Plaintiff, v. Abraham RIBICOFF, Secretary of Health, Education and Welfare, Defendant.

Civ. A. No. 3078.

United States District Court W. D. South Carolina, Greenwood Division.

June 1, 1962.

Marvin R. Watson, Greenwood, S. C., for plaintiff.

John C. Williams, U. S. Atty., Charles Porter, Asst. U. S. Atty., Greenville, S. C., for defendant.

WYCHE, Chief Judge.

This is an action to review a final decision of the Secretary of Health, Education and Welfare, in accordance with § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), denying the plaintiff the period of disability and disability insurance benefits for which she applied.

The plaintiff filed application to establish a period of disability and for disability insurance benefits on June 6, 1957. A hearing was held before a Hearing Examiner of the Social Security Administration, who rendered his decision on June 12, 1959, finding that the plaintiff's combined impairments were not of sufficient severity to prevent her from engaging in any substantial gainful activity at any time prior to June 6, 1957, the date of the filing of her application which was before him. A request for review of this adverse decision was denied by the Appeals Council on September 16, 1959, and no court action followed.

The decision of June 12, 1959, of the Hearing Examiner became res judicata and is binding upon the plaintiff with respect to "disability" on or prior to June 6, 1957.

On June 6, 1960, the plaintiff filed application to establish a period of disability and for disability insurance benefits under the Social Security Act, alleging that she became disabled to work in August, 1955. On July 22, 1960, she was notified by the Bureau of Old-Age and Survivors Insurance that her application was denied. A request for reconsideration was filed September 16, 1960, and by a reconsidered determination dated December 22, 1960, which incorporated plaintiff's application filed September 16, 1960, the Bureau affirmed its original denial and plaintiff was so notified by letter dated January 10, 1961. The case was then heard by a Hearing Examiner who found that the plaintiff met the applicable earnings requirements as of June 6, 1957, the beginning date of the period under consideration, and continued to meet such requirements through the calendar quarter ending September 30, 1960; that plaintiff's combined impairments were not severe enough to make her unable to engage in any kind of substantial gainful work starting as of June 6, 1957, the date of filing her first application, or at any time on or before September 30, 1960, the date the special earnings requirements were last met, and continuing. The Appeals Council denied plaintiff's request for review.

In August, 1955, the plaintiff received an injury to her back and hip when she fell while at work in the mill. She returned to work following the accident but was unable to continue because of the pain she was suffering. She was hospitalized for approximately three weeks in September, 1955, and was fitted with a surgical corset which she has continued to wear. Ten days later she had exacerbation of symptoms and was hospitalized again for a short period. Because of continued disability and difficulty she was admitted again to the hospital and on February 11, 1956, had laminectomy of the 3rd, 4th and 5th innerspaces with removal of disc at L-5 and spinal fusion between L-4 and S-1. She has continued to have pain in her back and leg and has been unable to return to work. She has been in the hospital five times since 1957, twice on account of her back. Before the accident in 1955, she had no prior history of back trouble.

On June 10, 1957, Dr. James A. McQuown, an Orthopedic Surgeon, who operated on the plaintiff in 1956, stated "* * * Subsequent to this patient's operation she has had some improvement. * * * further investigations and subsequent X-Rays revealed a pseudoarthrosis probably between L-4 & 5 and possibly between L-5 & S-1."

Dr. Darby Pendergrass, plaintiff's personal physician, in a report dated June 24, 1957, stated: "* * * she has still had some residual sciatic pain and the X-Rays revealed an inadequate fusion of the back. * * * X-ray report Reveal a pseudoarthrosis probably between L-4 and 5. And possibly between L-5 and S-1. * * * her blood pressure is elevated to 180 over 110."

In another report of Dr. McQuown dated June 2, 1958, it is stated: "* * * x-rays of lumbar spine with pseudoarthrosis L 4-L 5".

In an undated report Dr. McQuown states: "* * * Muscle spasm, limitation of motion spine. Pseudoarthrosis lumbosacral spine. * * * This patient has loss of motion in the lumbosacral area occasioned by fibrous fusion with boney pseudoarthrosis between L-4 & 5 and possibly between 5 & S-1."

Dr. McQuown states in his report dated May 30, 1960: "Localized narrowing L-4 & 5 L-5 S-1 with pseudoarthrosis and traumatic arthritis. * * * The reflexes in knees are active on the left, somewhat hypoactive on the right. Ankle jerks are present and active. She has no atrophy in her thighs or calves, * * *."

Dr. McQuown's report of October 5, 1960, states: "* * * This patient stands 63" tall and weighs 193¼ lbs. * * She has a severe degree of lumbar lordosis and moderate degree of dorsal kyphos. * * * Right knee jerks are present as are ankle jerks but they are both hypoactive about 1 plus. * * * Right calf measures 16" and the left the same, there is no evidence of any atrophy. * * * Anterior superior spine to internal malleolus measures equal. * * *

"Radiographic examination on this date shows severe narrowing at the L-5 S-1 innerspace with severe degree of lumbar lordosis and a pseudoarthrosis between L-4 & 5 and L-5 S-1."

Dr. McQuown in his report of May 30, 1960, says that plaintiff has "Postoperative back pain with pseudoarthrosis post-laminectomy syndrome" and that plaintiff is restricted from "any prolonged standing or lifting"; and in his report of October 5, 1960, he says that "This patient has been a textile worker, has pseudoarthrosis and a painful back with occasional nerve root discomfort. It is my opinion that she is certainly disabled, that she has about a 40% total body disability. She is currently over weight and this needs to be corrected. I have advised her that if she feels she would like to return to work it will be necessary to make another attempt at spinal fusion. There would be no guarantee that it would be any more successful than the first attempt."

For the past two years the plaintiff states that she has had increasing discomfort and pain. She has severe right leg discomfort, pain in the right buttocks and hip, radiating posterior thigh into the posterior calf; she has spent several weeks in bed during the past two years because of severe low back pain. She is able to do some of her cooking and make some of the beds and wash dishes but is unable to do the sweeping or mopping of any of the heavy house work. She has continuous pain in her low back, some days it is worse than others; her leg pain has been somewhat intermittent. She has been unable to bend and is extremely uncomfortable sitting. She has had numbness in both lower extremities but more severe on the right side. Coughing and sneezing cause severe discomfort in her low back.

Dr. McQuown stated in his report of June 10, 1957, "* * * she still had leg pain primarily in the calf and her back pain has remained a constant problem. * * * At the present time she has considerable limitation of motion in forward bending and has some minimal persistent pain with straight leg raise with persistent anesthesia lateral aspect of the leg. * * *"

In Dr. McQuown's report dated May 30, 1960, he states: "* * * This patient is able to walk on her toes and heels, she bends forward approximately 65 degrees insofar as lumbar-motion is concerned. She tends to reverse her curve. Right and left lateral bending possible about 35 degrees. In the sitting position she has no marked pain with straight leg raise except on the right where her pain radiates posterior thigh. * * * she has some diminution of appreciation of vibratory sensation over the right lateral malleolus, she has some minimal subjective loss of sensation right lateral leg and over the area of the right lateral malleolus and foot. She is able to come from supine to sitting position and to sit erect with hips and knees extended."

Dr. McQuown states in his report of October 5, 1960: "* * * She is able to walk well on toes and heels. * * * She bends forward approximately 35 degrees and does not reverse her curve, right and left lateral bending are possible to about 35 degrees and she is extremely tender at the L-5 S-1 junction. She has tenderness over the crest of the right ilium in the region of the scar. * * * She has severe pain with straight leg raise on the right in the sitting position and this is referred primarily to the posterior thigh area. * * * She has fairly normal vibratory sensation. She has some suggestive numbness in the lateral aspect of the leg and foot. * * *...