Lowe v. Finch

• Decision Date: 14 March 1969
• Docket Number: Civ. A. No. 68-C-87-A.
• Citation: 297 F. Supp. 667
• Parties: Myrtle E. LOWE, who sues on behalf of herself and her daughter, Anna L. Lowe, Plaintiff, v. Robert FINCH, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Western District of Virginia

297 F. Supp. 667

Myrtle E. LOWE, who sues on behalf of herself and her daughter, Anna L. Lowe, Plaintiff, v. Robert FINCH, Secretary of Health, Education and Welfare, Defendant.

Civ. A. No. 68-C-87-A.

United States District Court W. D. Virginia, Abingdon Division.

March 14, 1969.

James R. Moore, Abingdon, Va., for plaintiff.

William C. Breckinridge, Asst. U. S. Atty., Roanoke, Va., for defendant.

OPINION AND JUDGMENT

DALTON, Chief Judge.

Mrs. Myrtle E. Lowe, the claimant, brings this action under section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), for review of a decision of the Secretary of Health, Education and Welfare. It is the claimant's contention that her daughter, Anna L. Lowe, is entitled to child's insurance benefits under section 202(d) of the Act, as amended, 42 U.S.C.A. § 402(d) (Cum.Supp.1969). In order for a dependent child to be entitled to child's insurance benefits under section 202(d), it must be established that the child, prior to the age of eighteen, was under a "disability"¹ as defined by section 223(d) of the Act, as amended, 42 U.S.C.A. § 423(d) (Cum.Supp.1969).

The decision of the Secretary held that the evidence was insufficient to show that Anna Lowe was unable to engage in any substantial gainful activity prior to her attaining the age of eighteen. In reviewing this decision of the Secretary the question for this court is whether the decision is supported by substantial evidence. Underwood v. Ribicoff, 298 F.2d 850 (4th Cir. 1962). For the reasons which follow we find that it is not, and, accordingly, reverse.

Anna Lowe, who is now forty-five years old, is an unmarried female who has lived with her parents all her life. Although she has been mentally retarded since birth, it was not until 1967 that she first underwent psychiatric testing and evaluation. The resulting medical report revealed the following:

Miss Lowe was not particularly cooperative with the testing efforts. When pressed she became very irritated and refused to perform. This makes it difficult to judge just what her intellectual potential is. Her sentence structure and vocabulary would indicate that she is probably functioning within the borderline defective range. Yet, her scores on the WAIS would indicate that she is moderately defective with a verbal I.Q. of 63, a performance score of 70, and a full scale I.Q. of 64. This woman is very poorly informed. Her judgment is impaired, she has much difficulty calculating, her thinking is very concrete, she has trouble sorting essentials from nonessentials, and she has considerable difficulty with analysis and syntheses. * * * Miss Lowe's performance on the Bender-Gestalt Test suggests a rather low level of functioning. She cannot remember, she is highly anxious, she is impulsive, and she is negativistic. * * *

It would appear from surveying the test results that Miss Lowe is only mildly defective and that she has rather severe functional problems. She certainly has a propensity for psychotic behavior, and she has very little motivation to use what potential she has. Apparently she has been convinced and has now convinced herself that she is rather helpless and incapable of being productive. This is well ingrained, and it is a picture that is not going to change.

This assessment of Miss Lowe's mental competence is corroborated by the other medical evidence in the record, dating since 1966, and the consensus is that Miss Lowe has the mental age of an eight or ten year old.

Mrs. Lowe, the claimant, states that Anna has always been mentally deficient, an opinion which is supported by that of numerous friends and acquaintances of the Lowes. Mrs. Lowe described her daughter as an emotional child, sensitive about her condition and prone to cry when her feelings were hurt, which was often. Anna began school at the age of eight and quit at age thirteen without satisfactorily completing the third grade. The record of her school performance shows average or above average marks in reading, writing and spelling, but consistently poor or failing marks in English and arithmetic. She has rudimentary reading and writing skills, but even now is incapable of performing the simplest arithmetic. She cannot handle money or appreciate its value. Mrs. Lowe stated that Anna quit school at the age of thirteen because she could not learn, a statement consistent with her brief school record. It also appears that at the time Anna quit school her services were needed around the home, since her father became disabled and her mother had to go to work to provide for the family of ten children. Two of Anna's younger brothers are also mentally retarded, and it seems that for the past thirty years Anna has shouldered some of the responsibility for their care and supervision while Mrs. Lowe was at work. Anna's domestic talents are limited, however, since she does only light housework and prepares simple meals which do not require much cooking.

Although Anna has never been a behavioral problem, and is capable of taking care of simple personal needs, she has never been permitted to function without close supervision. Her only activities outside the home are attending church, which she does at every opportunity. Her mother describes her as a religious fanatic.

Anna Lowe's only work experience occurred during World War II, when she was twenty-one or twenty-two years old. At the hearing before the hearing examiner Anna testified that she worked an eight-hour shift, five days a week. She said she enjoyed the work, which she described as consisting of gluing domes on B-29 airplanes, and that she got along well with the other girls in the crew. Anna's job was terminated after three or four months when the war ended. Mrs. Lowe explained she also worked at the factory, which she says was hiring anyone who applied, and that Anna's conduct at work was rather foolish and a constant source of embarrassment to Mrs. Lowe.

In his decision denying disability benefits the hearing examiner relied primarily on his belief that Anna's brief work experience had demonstrated an ability to engage in substantial gainful activity. He also cited the report of a psychiatric consultant to the Social Security Administration, who reviewed the record and concluded:

There is no evidence whatever that she is not able to go around by herself. There is no evidence that she has ever gotten into trouble because she was unable to avoid danger. Her mother says that she is unable to manage money, but we have no objective evidence that this is the case. * * * Even now * * * a psychologist who saw her finds an I.Q. of 64. At the time of her 18th birthday it could not have been less than this and was probably higher. It is equally probable that her motivations to use her potentials that she had were not as inactive as they have gradually become over the intervening years. An I.Q. of 64 in itself

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