Goodwin v. Railroad Retirement Bd., 76-1504

• Decision Date: 10 February 1977
• Docket Number: No. 76-1504,76-1504
• Citation: 546 F.2d 1169
• Parties: Joseph C. GOODWIN, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1169

546 F.2d 1169

Joseph C. GOODWIN, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent.

No. 76-1504.

United States Court of Appeals Fifth Circuit.

Feb. 10, 1977.

Jeffrey J. Skarda, Houston, Tex., for petitioner.

Dale G. Zimmerman, Gen. Counsel, David B. Schreiber, Assoc. Gen. Counsel, Edward S. Hintzke, Asst. Gen. Counsel, James E. Lanter, Gen. Atty., Railroad Retirement Bd., Chicago, Ill., for respondent.

Petition for Review of an Order of the Railroad Retirement Board (Texas Case).

Before BROWN, Chief Judge, GODBOLD, Circuit Judge, and MEHRTENS, District Judge. ^*

MEHRTENS, District Judge:

Petitioner appeals from a decision of the Railroad Retirement Board (RRB) denying him a disabled child's insurance annuity under section 5(c) of the Railroad Retirement Act of 1937 (45 U.S.C. § 228e(c)). We reverse.

In 1973, petitioner Joseph C. Goodwin filed an application with the RRB for a child's insurance annuity, based on his deceased father's service to the railroad. The Board denied his application, and he appealed to this Court as permitted by 45 U.S.C. § 228k.

To qualify for these benefits "a 'child' shall have been dependent upon its parent employee at the time of his death . . . and . . . shall, without regard to his age, be unable to engage in any regular employment by reason of a permanent physical or mental condition which disability began before he attained age twenty-two . . ." (45 U.S.C. § 228e(l )(1)(ii)(C)).

Petitioner has three different problems upon which he has based his claim for benefits: epilepsy, heart condition and mental deficiency. He claims he has had substantial medical treatment for these conditions but many of the records of the childhood treatments are unavailable or illegible.

Thirty-four years old at the time of his application, petitioner dropped out of school in rural Louisiana in the fifth grade at the age of 15. In 1957, when he was 16 years old, he spent six months in a mental health center. The diagnosis was moderate mental deficiency, with a neurotic reaction. The center described the impairment as severe and treated him with medication and electro-shock therapy. Upon his discharge, the center stated his impairment was moderate and they could do no more for him. In 1972 his IQ was found to be 56, which is described as mentally defective.

Prior to reaching age 22, petitioner had received treatment for epilepsy from five clinics or hospitals. The medical records of two of those sources positively diagnose epilepsy.

The medical records from Lafayette Charity Hospital concern the period of petitioner's life prior to his 22nd birthday. They are largely illegible, however, probably due to the lack of sophisticated copying equipment. While there is no mention of epilepsy, he was found to have a heart murmur.

Records from St. Landry Hospital in Louisiana show treatment for epilepsy, nervous spells, emotional stress and tachycardia (rapid beats of the heart). He responded well to medication. Other records do not give enough details to determine the type, frequency, severity and duration of seizures or whether the epilepsy was successfully controlled by treatment.

From 1963 to 1969, when he was employed as a dishwasher and general helper in a hospital, he was treated for epilepsy, according to lay testimony provided by the petitioner, his aunt, and other hospital workers who heard of his seizures. A nurse substantiated the occurrence of blackouts during his employment.

From 1969 to date, the medical evidence shifts diagnosis from epilepsy to convulsive disorder. Some records show an ambiguity of diagnosis between convulsive disorder and anxiety reaction. Nevertheless, all generally agree that the seizures exist, that they cause the petitioner to lose consciousness and that they at least contribute to his disability.

In relation to his heart problems, petitioner had a cardiac catheterization in 1959. On October 28, 1975, a clinic was testing his heart condition by using a treadmill and he reacted by having a seizure during the test. Petitioner argues that this supports his position that whether the condition be classic epilepsy or some mental disorder, he cannot deal with the pressures of competitive employment.

The Board interpreted sections 5(c) and 5(l )(1)(ii)(C) of the Railroad Retirement Act of 1937 as requiring a continuing disability from before age 22 until the time of application for benefits. It found that Goodwin's disability was not continuing because he secured some employment. Yet, petitioner has been certified for various disability benefits from three other agencies, including the Louisiana Department of Public Welfare, the Harris County (Texas) Welfare Department and the Social Security Administration.

The conclusion of this Court is that the petitioner's work at the hospital was not regular employment so as to deny him benefits.

The adequacy of one's job performance is a factor to be considered in determining disability. At 20 C.F.R. § 404.1532(d) it is stated that:

". . . 'Made work,' that is work involving the performance of minimal or trifling duties which make little or no demand on the individual and are of little or no utility to his employer, or to the operation of a business, if self-employed, does not demonstrate ability to engage in substantial gainful activity."

Ziskin v. Weinberger, 379 F.Supp. 124, 127 (S.D.Ohio, W.D., 1973)

When he did work at the hospital, petitioner's employment situation was not that of a normal worker. The nun who was president of the hospital noted his ability to function was based on the close-knit situation where several of his cousins were employed in nursing service, as well as having other relatives who worked in both the laundry and housekeeping departments. He also worked under the guidance of his aunt in the dietary department. She utilized her position to schedule his work so as not to put stress on him. Also, several of his uncles and neighbors were employees of the dietary department at the time. These families arranged a car pool so that transportation would not be a problem. The president noted that the Sisters in charge of the dietary department were sympathetic towards him and overlooked many of his shortcomings.

The Board denied petitioner's annuity after finding that his condition was not severe enough to be considered disabling within the meaning of the Act. Supporting its ruling, it made lengthy findings, focusing on the vagueness of some of the witness' testimony, some conflicting evidence as to the frequency and severity of seizures, and the lack of medical records substantiating the lay testimony.

However, the evidence taken as a whole clearly shows the petitioner's lack of fitness for substantial, regular employment. The sheltered environment and special treatment he received at the hospital were not the type of working conditions that can be duplicated outside this family atmosphere. See, Lowe v. Finch, 297 F.Supp. 667, 671 (W.D.Va.1969).

The Board's concern about the lack of records does not take into consideration the realities of petitioner's situation. The doctors and nurses at the hospital where he worked reportedly treated him as the need arose, but the formality of keeping a chart on kitchen help was probably not the practice.

The lay testimony of the petitioner's mother and two aunts documents his early seizures. While all have an interest in the establishment of his disability, all three describe a continuous history of observance and treatment of seizures from onset to age 22. In light of the illegibility of the early records, corroborating lay testimony should be given due credence. McCalip v. Richardson, 460 F.2d 1124, 1129 (8th Cir. 1972). The Board erred as a matter of law in discounting such testimony.

Supporting our finding that petitioner's disability was a continuing one despite his work experience are several Social Security Act cases the disability sections of the Social Security Act having been more litigated than the corresponding sections of the Railroad Retirement Act. The validity of the analogy between the two acts regarding their disability standards is well supported. See, Parker v. Railroad Retirement Board, 441 F.2d 460, 463 at n.6 (7th Cir. 1971); Duncan v. Railroad...