McCalip v. Richardson, 71-1563.
| Decision Date | 31 May 1972 |
| Docket Number | No. 71-1563.,71-1563. |
| Citation | 460 F.2d 1124 |
| Parties | Alma M. McCALIP, Appellant, v. Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Bryce Bartu, Blevens, Bartu & Blevens, Seward, Neb., for appellant.
Randall A. Rinquest, Asst. U. S. Atty., Omaha, Neb., Richard A. Dier, U. S. Atty., for the District of Nebraska, and Paul C. Cacioppo, Acting Regional Atty., Region VII, Department of Health, Education, and Welfare (Michael Romain, Asst. Reg. Atty., Dept. of Health, Education and Welfare, Kansas City, Mo., on the brief), for appellee.
Before Mr. Justice CLARK,* VOGEL and LAY, Circuit Judges.
Alma M. McCalip, plaintiff-appellant, brought this action in the United States District Court for the District of Nebraska under the Social Security Act, as amended, 42 U.S.C.A. § 405(g), seeking judicial review of a decision of the Secretary of Health, Education and Welfare denying her child's insurance benefits under the Act. From a summary judgment in favor of the Secretary, plaintiff brings this appeal. The District Court's opinion granting the Secretary's motion for summary judgment is published as McCalip v. Richardson, D.C.Neb., 1971, 333 F.Supp. 1207. The crucial fact question is whether Miss McCalip has sustained her burden of proving that she is suffering from a present disability within the purview of the Act which began prior to her eighteenth birthday and has continued thereafter to the time of her application for benefits. 42 U.S.C.A. § 402(d), § 416(i), § 423(d). Concededly, the Secretary's findings of fact and the reasonable inferences drawn therefrom are conclusive and binding if supported by substantial evidence. Celebrezze v. Bolas, 8 Cir., 1963, 316 F.2d 498, 500. See, also, e. g., Vineyard v. Gardner, 8 Cir., 1967, 376 F.2d 1012, 1014; Brasher v. Celebrezze, 8 Cir., 1965, 340 F.2d 413, 414.
The Supreme Court, in a recent Social Security case, Richardson v. Perales, 1971, 402 U.S. 389 at page 401, 91 S.Ct. 1420, at page 1427, 28 L.Ed.2d 842, reiterated its definition of "substantial evidence":
"
We are convinced, after reviewing the entire file and transcript, that the Secretary's conclusion that Miss McCalip failed to meet her burden of proof is not supported by substantial evidence and that the record clearly demonstrates by a great preponderance of evidence that not only was she permanently disabled within the purview of the Act as of the date of the hearing, but that she had also been so disabled at and prior to attaining age eighteen. We reverse and direct the entry of judgment in favor of the plaintiff with a direction that attorney's fees be assessed and allowed by the District Court.
A review of the record is required. Plaintiff was born on December 28, 1924, and is accordingly approaching 48 years of age. She has never married, has always lived with her parents and been supported by them with some assistance coming from a brother, who died in 1953. Her father, upon whose earnings record this claim is predicated, died in 1960. She is presently living with her mother, who is more than eighty years old. Her application indicated, and she testified generally and specifically, to an entire lifetime of illness and disability beginning in infancy. In addition to having a curvature of the spine, she has suffered from osteomyelitis and osteoarthritis of the back and left leg, tendonitis of both feet and legs, pneumonia and anemia. She had a great deal of difficulty in school. She took the first grade twice. While in the fourth grade, which she also attempted to take twice, her doctor advised that she discontinue school. She suffered from pain in her back and paralysis of the right arm and left leg. She had trouble walking back and forth to school and often had to lie down and rest or stop in with neighbors. According to the claimant, her disability has continued up to the present time. She has had numerous hospitalizations with operations ranging from the removal of bone tumors to a total hysterectomy. For years she was confined to a back brace, apparently due to the spinal curvature. She testified that during her lifetime she has tried to work. First, she helped out in a florist shop as a saleslady for half a day several times a week. This effort forced her to spend most of the rest of her time in bed. "It was just all I could take." She did this "a half day off and on for maybe a couple of months." She finally quit at the behest of her brother, who claimed it was costing him more in doctor bills than she was earning. The next attempt at holding a job was as a driver for the County Assessor. This lasted but a short time and if she worked more than three days a week she had back trouble. Miss McCalip attempted to take an art course by correspondence, but on medical advice was forced to give it up. Claimant is able to do a little housework.
Plaintiff's claim of disability beginning prior to her eighteenth birthday and extending up to the present time was fully supported by lay witnesses who had known her and her family for many years. They included Judge Fred H. Bruns, whose cousin is married to one of claimant's sisters, Berdean Golden, a sister of claimant presently residing in Phoenix, Arizona, Zella Walsh, Lucille M. Abel, Bertha Mae Gannon, William J. Cardwell and George A. Bergantzel, all neighbors of the McCalips who have known the claimant prior to and subsequent to her attaining age eighteen.
Mrs. Golden testified by affidavit to the effect that the claimant, because of her physical condition, did not have a normal childhood, that she could not run and play like other children, that she was unable to go to any family functions away from home or to any activity with other children for the reason that she would become ill for several days on each occasion. She stated that the claimant started school at the age of five and continued to the fourth grade, that she was absent a greater portion of the time and upon doctor's orders was taken from the school, never to return; that at that time, at the age of nine, she lost complete use of one arm and one leg; that she received chiropractic treatments therefor. She went into great detail with reference to the claimant's physical difficulties, concluding that:
"* * * Alma McCalip has never been able to secure and maintain any gainful employment; that she has sought such employment; that lack of education, diseases, illnesses and operations have resulted in disabilities of physical and mental impairments of such degree and magnitude to prevent her from engaging in gainful employment activity; that said physical and mental impairments occurred and began before she attained the age of 18, and have continued without interruption to the present time."
Zella Walsh, Lucille M. Abel, Bertha Mae Gannon, George A. Bergantzel and William J. Cardwell, neighbors of the McCalips, made similar statements in their affidavits completely supporting the foregoing.
Judge Bruns, who had been the County Assessor who had given the claimant a job as his chauffeur, had known Miss McCalip and her family for his entire life. He testified as to her general physical condition, her "very stooped and hunched position" and her various hospitalizations. He stated:
"* * * I can only find use for her as a chauffeur and then my contact was such that I felt that she did not have value to me to be able to be employable."
In answer to the question of whether or not her impairment would prevent her from engaging in any substantial gainful activity, he replied:
He was asked:
"Q Now your history and knowledge of the family, etc. — in your opinion, do you feel that this impairment began when Alma was 18 years old?"
He replied:
"A Well, it\'s all a combination of many things over the years, but I am sure that this started back in the days when she was a very small girl." (Emphasis supplied.)
Additionally:
He refused to express any opinion with reference to the claimant's mental problems.
Dr. C. S. Griffin, D.O., of Seward, Nebraska, claimant's hometown, in a report dated March 1, 1968, stated that he first saw the claimant in June 1936 when she came to him complaining of inability to move her right arm and fingers and a stiff left leg. He noted:
Dr. Griffin further stated that the claimant was "never able to work", that he first examined her in June 1936 and she visited him twice a week for a time thereafter. He last saw her on February 13, 1968. He reported as to the claimant:
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Breashears v. Mathews
...above stated have been approved in numerous cases that have cited and followed Bolas. In McCalip v. Richardson, Secretary of Health, Education and Welfare, 460 F.2d 1124 (8th Cir. 1972), the Eighth Circuit again considered and affirmed Bolas, and beginning at the bottom of page 1125 "Conced......
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Strickland v. Califano, FS-76-86-C.
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Irvin v. Mathews, FS-75-123-C.
...Richards, Sec., etc., 453 F.2d 882 and Gaultney v. Weinberger (5th Cir. 1974) 505 F.2d 943. In McCalip v. Richardson, Secretary of Health, Education and Welfare, 460 F.2d 1124 (8th Cir. 1972), the Eighth Circuit again considered and affirmed Bolas, and beginning at the bottom of page 1125 "......
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Reading v. Mathews, 76-1327
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