Kohrs v. Flemming
| Decision Date | 18 December 1959 |
| Docket Number | No. 16292.,16292. |
| Citation | 272 F.2d 731 |
| Parties | Dollie KOHRS, Appellant, v. Arthur S. FLEMMING, as Secretary of Health, Education and Welfare of the United States of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James R. McGreevy, Omaha, Neb., Edwin Cassem, of Cassem, Tierney, Adams & Henatsch, Omaha, Neb., on the brief, for appellant.
Thomas J. Skutt, Asst. U. S. Atty., Omaha, Neb., for appellee.
Before GARDNER, WOODROUGH and VOGEL, Circuit Judges.
Dollie Kohrs, plaintiff-appellant, brought this action in the District Court of the United States for the District of Nebraska to review, in accordance with the provisions of 42 U.S.C.A. § 405(g), an order of the Secretary of Health, Education, and Welfare denying to her disability benefits. Plaintiff first filed her application with the Bureau of Old Age and Survivors Insurance of the Social Security Administration on April 25, 1955, to establish a period of disability under 42 U.S.C.A. § 416(i), which section defines "disability" to mean the "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." On June 4, 1956, her application was denied on the grounds that her impairment did not preclude her from engaging in "any substantial gainful activity". Upon her request for reconsideration, the Bureau affirmed its earlier finding. Plaintiff then requested a hearing before a referee of the Social Security Administration, which hearing was held on May 1, 1958. On May 28, 1958, the referee concurred in the Bureau's conclusion and denied her request for benefits. Plaintiff appealed to the Appeals Council of the Social Security Administration. On October 8, 1958, the Council denied her request for review of the referee's decision because it was of the opinion that a formal review would result in no advantage to her. Thereafter, plaintiff brought suit in the United States District Court for the District of Nebraska to obtain a judgment reversing the decision of the referee which had become the final decision of the Secretary. In the District Court both parties moved for summary judgment. The court granted the Secretary's motion and denied that of the plaintiff. Plaintiff then moved for reversal or in the alternative for a new hearing before the referee. This motion was also denied. Plaintiff appeals here both from the judgment and from the denial of her motion.
The primary question is whether or not the finding of the Secretary to the effect that the plaintiff is able to engage in a substantial gainful activity is supported by substantial evidence. The evidentiary facts do not appear in serious dispute. It is the ultimate conclusion to be drawn therefrom which causes the difficulty. Plaintiff is a single woman who became 60 years of age on August 10, 1959. She has an eighth-grade education. For approximately 20 years she worked as a practical nurse in a doctor's office. Thereafter she was employed as a food packager by the Skinner Manufacturing Company in Omaha, Nebraska, for whom she worked a year and a half until she became disabled. Her employer subsequently reported to the Social Security Administration that "Dollie Kohrs became crippled in one arm and was unable to do the work assigned to her, therefore, her employment was terminated". She has engaged in no gainful activity since April 24, 1948, and claims to be disabled within the purview of the statute.
Plaintiff's condition originated from an injury occurring in 1947 when she fell and alighted on her left arm and shoulder. Initially the injury did not appear particularly severe but shortly thereafter serious complications occurred. Plaintiff was first attended by Dr. Harry Jenkins of Omaha, Nebraska, who recommended that she carry her arm in a sling and advised her that an operation was necessary. He performed the first of a series of operations on the scalenus in the neck. After the operation, Dr. Jenkins referred her to Dr. James Martin, also of Omaha. Dr. Martin examined her in September of 1948. His advice was that, "* * * if it was his arm he would amputate it". Plaintiff then returned to Dr. Jenkins, who recommended that she see Dr. Arthur Steindler, head of the Department of Orthopedic Surgery at the University of Iowa. Dr. Steindler performed an operation on her left side known as a scalenus anticus-resection. Subsequently Dr. Steindler performed another operation consisting of a flexorplasty, or a transplantation of the tendons and muscles, of the left forearm which resulted in the restoration of some strength and mobility in her arm but did not relieve the pain in her left shoulder. Plaintiff's next operation was an arthrodesis of the left shoulder joint by Dr. Steindler in July, 1949, which procedure consists of a bony fusion and fixation of the shoulder joint to make it stiff and immovable. Plaintiff's last operation was at the University of Nebraska, where she had become a charity patient upon the exhaustion of her savings. There, on August 23, 1951, plaintiff again had an intra-articular arthrodesis of the left shoulder joint under general anesthesia and a shoulder spica cast was applied. This operation was necessary because plaintiff's arm was again out of joint at the shoulder and hung free with no control. She has undergone repeated hospitalizations and constant medical care up to the present time.
At the time of the hearing the plaintiff was carrying her left arm in an adduction brace prescribed by Dr. Richard Smith, staff doctor at the University of Nebraska Medical Hospital, which held her forearm at an angle of approximately 75° and which was necessary to relieve pain. She has used this brace since January, 1952, putting it on at around four or five o'clock in the afternoon and wear-it through the night and taking it off in the mornings. When she leaves the house she puts the brace on because it is painful to walk without it. When she is not wearing it her arm does not hang normally at her left side but extends out in almost the same position it assumes when supported by the brace. Without the brace plaintiff would be unable to sleep.
Plaintiff continues to suffer great pain in her left arm and shoulder. She testified, in answer to the question whether or not she was able to accept gainful employment, "No. I don't think I am" and, , and, "Well, I don't think that I would be able to undertake any work of any kind because of the difficulty of the brace and the pain in my forearm." The record further shows the following:
During the period of her disability plaintiff on several occasions visited a rehabilitation center in an attempt to obtain help. Such attempts were unavailing. Beginning September, 1956, plaintiff applied for and was held eligible for "Aid to the Disabled" from the Douglas County Welfare Agency which entitled her to $53.20 per month. In 1949 the Prudential Insurance Company of America recognized plaintiff's condition as one of total disability entitling her to payment under each of two policies producing aggregate benefits of $9.37 per month.
Dr. R. D. Schrock, head of the Department of Orthopedic Surgery of the University of Nebraska College of Medicine, reported to the referee:
Under "Remarks", he stated:
(Emphasis supplied.)
The referee, following the hearing of May 1, 1958, concluded that:
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