Marion v. Gardner

• Decision Date: 02 May 1966
• Docket Number: No. 18163.,18163.
• Citation: 359 F.2d 175
• Parties: Esther MARION, Guardian of James E. Marion, Incompetent, Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

359 F.2d 175 (1966)

Esther MARION, Guardian of James E. Marion, Incompetent, Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Appellee.

No. 18163.

United States Court of Appeals Eighth Circuit.

May 2, 1966.

John W. Walbran, of Thompson, Walther & Shewmaker, St. Louis, Mo., for appellant. Mary P. Walbran, of Walbran & Walbran, Owatonna, Minn., was with him on the brief.

Patrick J. Foley, Asst. U. S. Atty., Minneapolis, Minn., for appellee. Miles W. Lord, U. S. Atty., Minneapolis, Minn., was with him on the brief.

Before VOGEL, Chief Judge, BLACKMUN, Circuit Judge, and STEPHENSON, District Judge.

BLACKMUN, Circuit Judge.

On November 28, 1962, the appellant-guardian applied for disability insurance benefits for her ward, whom we shall hereinafter call the applicant, under § 223, as amended, of the Social Security Act, 42 U.S.C. § 423. A hearing was granted but the application was denied administratively. The district court, on review pursuant to 42 U.S.C. § 405(g), has upheld the Secretary's action and entered judgment in his favor.

The applicant-ward was born September 4, 1932, and is now 33 years of age. He is a homosexual with his deviance directed toward young boys. He stands committed indefinitely under the Minnesota Psychopathic Personality Act, Minn. Stat.Ann. § 526.09-526.11 (1947). He possesses, however, the required quarters of coverage. His case therefore focuses solely on his claimed disability within the statutory standard. We are advised by counsel that the matter may be one of first impression.

At the time the application was filed § 423(c) (2) defined disability as follows:

"The term `disability\' means 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."¹

There is no dispute about the facts. Because they are important we review them in some detail.

The application recited that the ward was impaired by reason of "mental disorder"; that he became unable to work because of this impairment on June 4, 1962; that he was confined in the Saint Peter (Minnesota) State Hospital; and that he had worked as a salesman in a men's clothing store. The eventual hearing before the examiner produced the following:

The applicant is the oldest of three children. His home is in Owatonna, Minnesota. He graduated in 1951 from a military academy-high school in that city. He then entered school in Florida but was soon sent home because of a molestation incident there. He joined the air force in 1952 but was discharged because of his concealment of the Florida episode. He attended a Minneapolis business college for a few months. In 1954 he was picked up by the Minneapolis police due to a suspected attempt to molest and was admitted to the University of Minnesota Hospital.

After this incident the applicant returned to Owatonna and was employed in his father's men's clothing store there. In 1955 the probate court of Rice County, Minnesota, found him to be mentally ill and committed him to the State Hospital at Rochester. He was confined about a year. He returned home and worked at the store again. In 1956 he found employment in a Saint Paul department store. He ran into difficulty there on a theft charge. He came back to the Rochester Hospital for another year. In 1957 he returned to his home in Owatonna. He was at Rochester again in June 1962.

The guardian testified that she was the mother of the applicant; that Dr. J. S. Lewis, who had examined the applicant when he was at the University Hospital in 1954, told her that her son had scar tissue in the brain caused by a childhood injury; that this restrained his sexual development at an age 13 level; that when the applicant was employed in the store at Owatonna he became very nervous; that in 1955 he was arrested in Faribault on a sex charge; that after this the probate court found him to be mentally ill; that his theft charge difficulty in 1956 was due to "trying to keep up with the crowd"; and that in her opinion the applicant was mentally ill, could not work in a community such as Owatonna, was not employable in the open market, and could work only under very close supervision.

The applicant's father testified that the applicant had worked for him on and off since he was out of high school; that he observed the buildup of nervous tension; that this interfered with his son's ability to sell; that, however, he was a good salesman; that he felt he was mentally ill; and that he was in difficulty with the police because of something other than sexual deviation on only the one occasion.

The record contains a number of medical reports:

1. A report from the Mayo Clinic at Rochester, Minnesota, states that the applicant was seen there in August 1940 with a history of two falls shortly before that time with headaches and vomiting. An X-ray from home disclosed a possible skull fracture. He was dehydrated and drowsy. He was hospitalized for six days and gradually improved.

2. The report from Dr. J. S. Lewis at the University had to do with his examination of the applicant in August 1954. At that time the physical, routine laboratory, and neurological examinations were normal. Psychometric studies "revealed the patient to be quite disturbed but did not reveal a definite diagnosis". The doctor stated that it "is difficult to conjecture the etiological development of this patient's bizarre fantasies and poor impulse control. There are no similar situations in the patient's family and it is difficult to determine an environmental factor contributing to his difficulty". The diagnosis was "Sociopathic personality disturbance, antisocial type". The prognosis was "Guarded and it is entirely possible that under stressful conditions * * * the boy will eventually regress to psychosis and will need further hospitalization". The patient was discharged home "to receive further Out-Patient supportive psychotherapy as needed".

3. The applicant's return to the Rochester State Hospital in June 1962 was on a hold order from Steele County, Minnesota, occasioned by continued indications of sexual deviation. The diagnosis at Rochester was "Sociopathic Personality Disturbance, Sexual Deviation". It was stated that the applicant "did not control his impulses even while a patient in this hospital", that it was "quite possible" that, if frightened, he may physically hurt a child, and that "This man should not be readmitted in an open situation, but at least at this time requires maximum supervision". The psychologist's examination indicated average to high average intelligence and disclosed normal limits on the MMPI; he concluded that the examination "does not reflect a mental or emotional disorder of a kind of magnitude which could be considered a necessary or sufficient cause of his allegedly sexually deviant behavior", and "It is felt that he does not present treatable psychopathology, but rather * * * a broadly defined character disorder", and a "social-moral rather than a medical-treatment problem", where the best hope for control "probably lies in a judicial rather than psychiatric disposition of his case."

4. The Steele County, Minnesota, probate records contain the findings of a board (the probate judge and "two duly licensed doctors of medicine", M.S.A. § 526.10), who examined the applicant in August 1962, and of the Probate Court itself. This notes the applicant's attraction to young boys, the molestation incidents, and his being a patient at the Rochester State Hospital, and makes a determination that he is a psychopathic personality and that his commitment "is necessary for the welfare and protection of the patient and society". He was thereupon committed to the Saint Peter State Hospital under the Minnesota Psychopathic Personality Act.

5. The admission report at Saint Peter, prepared August 30, 1962, describes the applicant as "a clear thinker, forceful, fabricates", with good intellect and memory orientation and no evident organic disease. It refers to his receiving psychiatric care for his molestation problem for approximately ten years. No fears, delusions or obsessions were observed. The psychologist's accompanying report notes that the applicant was well oriented, of neat appearance and of average intelligence. "This is a hypomanic individual who does not appear psychotic at this time. * * * This kind of personality pattern suggests the likelihood of an enduring pattern unlikely to be changed much by psychotherapeutic techniques. Nevertheless, it is quite probable that this individual can be successfully rehabilitated provided he finds himself vocationally".

6. In March 1964 the consulting psychiatrist at the Saint Peter Hospital wrote the hearing examiner:

"Mr. Marion was admitted to this institution on August 29, 1962. Established diagnosis is 52.20 Sociopathic Personality — Sex Deviation. According to the Standard APA Classification this person would not be considered to have a psychoneurosis or a psychosis.

"Your letter was discussed with the patient. We are entertaining the possibility of attempting transfer to an open state hospital setting. The patient would like to acquire some funds to finance vocational training after hospital release. It would be our suggestion that at a later date, referral to vocational rehabilitation be entertained with a goal of getting help for the patient in a training program."

Elbert B. Donahue was called by the hearing examiner as a vocational expert. Dr. Donahue possesses a degree of Doctor of Education, is a college professor and director of counselor training, and has done post-doctoral study in psychology. He testified that in his opinion, although he had not seen the applicant, "the evidence would indicate that the applicant does not have a psychosis" or a psychoneurosis or any brain damage; that homosexuals experience trouble getting...