Dinkel v. Secretary of Health & Human Services, 89-1686
| Decision Date | 09 February 1990 |
| Docket Number | No. 89-1686,89-1686 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Beverly F. DINKEL, Plaintiff-Appellant, v. SECRETARY OF HEALTH & HUMAN SERVICES, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before MILBURN and ALAN E. NORRIS, Circuit Judges; and CONTIE, Senior Circuit Judge.
Plaintiff-appellant, Beverly F. Dinkel, appeals from the district court order affirming the Secretary of Health and Human Services' determination that she was employed in substantial gainful activity before she reached the age of 22 and, therefore, was not entitled to child's insurance benefits. For the following reasons, we affirm the judgment of the district court.
On January 8, 1987, claimant filed an application for child's insurance benefits, alleging that she had been unable to work since birth due to deafness, blindness of the left eye, cerebral palsy, and degenerative arthritis. Claimant is presently receiving supplemental security income benefits due to these impairments. Her application for child's insurance benefits was denied initially and upon reconsideration because it was determined that claimant had been employed in substantial gainful activity before reaching the age of 22.
A hearing before an Administrative Law Judge (ALJ) was held on November 25th, 1987. At the hearing the following evidence was introduced.
Claimant was born on November 23, 1948, and completed the eleventh grade in school. Claimant commenced work on June 27, 1968, before she reached the age of 22 at the United States Post Office as a machine operator. Claimant gained entry into her employment through a joint U.S. Postal Service and Michigan Rehabilitation Services Program, which was implemented to employ otherwise unemployed deaf people. Claimant was employed by the Post Office until July 23, 1971, when she resigned.
Agnes Foret, a friend of claimant and a freelance interpreter for the deaf, testified as a lay witness. She stated that she was familiar with the Post Office program as it originated in the City of Detroit in 1967-1968. At that time Ms. Foret was asked by the Michigan Rehabilitation Services Program to develop training materials to help train the deaf to pass the Federal Civil Service exam. She trained about 100 deaf people to take the exam and after they were taken into the Post Office, she was involved in job orientation and was called back several times to help with difficulties with deaf employees, but was never an employee of the Post Office herself. Ms. Foret stated that there was a person in the Post Office with sign knowledge who was able to work with the deaf people. When asked by the ALJ if any accommodations for the deaf were made other than providing an interpreter, Ms. Foret stated that she thought special counseling and encouragement was also given. The ALJ replied, Ms. Foret replied, "No."
When asked if to her knowledge concessions were made, Ms. Foret answered that the Post Office was more lenient in allowing the deaf to continue on the job even though "they didn't know the schemes, and the ... time element on the LSM machine." When asked if there were deaf people who were working in the Post Office today, Ms. Foret stated that there were and as far as she knew they were performing their jobs in an acceptable manner.
Claimant, who was represented by counsel, testified through an interpreter that she tended two machines, one of them a LSM machine, at the Postal Service. Asked whether she was treated differently than other employees, claimant stated: Claimant indicated that she failed tests at one of the machines four to six times, "[b]ut I kept on working in that job." Asked whether she received different supervision than the other employees, claimant stated: Asked how often this extra supervision was given, claimant stated:
In response to a questionnaire sent by the Social Security Administration to the Postal Service on February 27, 1987, a United States Postal Service personnel assistant indicated that claimant was employed from June 27, 1968 to July 23, 1971, when she resigned. A question asking whether special working conditions were provided was answered "N/A."
Christian R. Barrett, a licensed vocational and clinical psychologist, testified as a vocational expert. When asked if in his opinion claimant's employment at the Post Office constituted substantial gainful activity, Mr. Barrett stated:
Well, does remain the question whether an individual without a handicap could function and perform at the degree of skill accuracy that Ms. Dinkel did and still maintain the employment. I guess what ... I've heard in this hearing today is that allowances and leniencies were provided, you know, for her that would not be given to an individual without a handicapping condition of her type. By that, if we assume that, then it would be more of a sheltered experience.
If we assume the Post Office typically would make allowances, decrease their expectations, increase their amount of time for training and retraining, for anyone that they thought was a potential good employee which I really don't believe they do, then it would be a substantial gainful activity.
At the conclusion of the hearing, the ALJ stated that the issue was whether claimant, when she was working for the Post Office, was working in a sheltered workshop or in a competitive environment and that it was necessary for somebody from the Post Office to testify.
Claimant's attorney replied that he was having difficulty in getting someone from the Post Office to appear. Claimant's attorney stated that over the telephone he had been told by a postal employee that deaf people were employed on the LCM machines because the machines made too much noise for regular employees. Claimant's attorney felt that the Post Office would be reluctant to testify about this. The ALJ told claimant's attorney that he had subpoena powers and would be willing to sign a subpoena.
After the hearing, claimant supplemented the record with three letters. In a letter written January 21, 1988, Joyce Keener, an Employment Service Analyst employed by the Michigan Rehabilitation Services, stated that between 1967-1968 Michigan Rehabilitation Services and the United States Postal Service "had a pilot program to employ the deaf and hearing impaired on a non-competitive basis through a selected placement process." Ms. Keener stated that claimant may have been one of those individuals if her dates of employment were correct.
A second letter from Ms. Keener, dated March 18, 1988, briefly described the mechanics of the pilot program. Entry into the program required certification by Michigan Rehabilitation Services that the person was severely vocationally handicapped. Program participants did not have to compete on a competitive basis by taking the written portion of the Federal Civil Service examination. The letter further stated:
The program was modified to assist the special needs of the hearing-impaired/deaf participants by allowing extra time to complete or learn task [sic] due to lack of communication skills. Special Interpreters, work area and supervisors with sign language were provided to closely monitor and to train the participants. Counseling staff from Michigan Rehabilitation Services were brought in to deal with special needs and problems to assist in understanding the work environment and work rules.
The letter stated that continued eligibility in the trial...
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