Parish v. Califano

Decision Date25 February 1981
Docket NumberNo. 79-1364,79-1364
Citation642 F.2d 188
PartiesPatricia PARISH, Plaintiff-Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Charles Trickey, III, Maceroni, Maceroni & Trickey, Warren, Mich., for plaintiff-appellant.

James K. Robinson, U. S. Atty., L. Michael Wicks, Asst. U. S. Atty., Detroit, Mich., for defendant-appellee.

Before WEICK, KEITH and KENNEDY, Circuit Judges.

CORNELIA G. KENNEDY, Circuit Judge.

This appeal requires that we decide whether nine months of employment during a period of remission from multiple sclerosis which occurred subsequent to her 22nd birthday bars a young person from receiving child's insurance disability benefits.

Plaintiff-appellant Patricia Parish contends that she is entitled to receive child's insurance disability benefits under a provision of the Social Security Act, which entitles the child of a wage earner, who died fully insured, to draw benefits based on the earnings record of that parent, beginning from the time that the application for benefits is filed, if the child (1) was dependent on that parent at the time of the parent's death, (2) was unmarried at the time of applying for the benefits, and (3) "is under a disability (as defined in Section 423(d) of this Title) which began before (she) attained the age of 22." 42 U.S.C. § 402(d)(1). To establish disability, the claimant is required by 42 U.S.C. § 423(d)(1)(A) to prove that she (1) suffers from a medically determinable physical or mental impairment which (2) prevents her from engaging in any substantial gainful activity. Stark v. Weinberger, 497 F.2d 1092, 1096 (7th Cir. 1974). To qualify for child disability benefits, claimant is also required to prove that she satisfied both these criteria of eligibility prior to her 22nd birthday, which in Miss Parish's case was October 19, 1973. Furthermore, the claimed disability must continue until the time of application for benefits, 42 U.S.C. § 402(d)(1)(G). Futernick v. Richardson, 484 F.2d 647 (6th Cir. 1973), here, February 2, 1977.

Both parties agree, and the undisputed evidence indicates that Miss Parish is now and was at the time of the administrative hearing in January of 1975 permanently and totally disabled from multiple sclerosis. The evidence further compels a finding that she has been disabled and unable to engage in substantial gainful activity since August of 1975. The questions raised by this appeal, however, are whether plaintiff has satisfied the third requirement of eligibility and whether her disability existed before she was 22 and continued from the date of her 22nd birthday until she made application for benefits.

The Administrative Law Judge held that while Miss Parish had neurological difficulties prior to her 22nd birthday she had the functional capacity to engage in substantial gainful activity of a sedentary nature and was therefore not under a disability as defined in the Social Security Act before she attained age 22. Specifically, the ALJ pointed to his finding that plaintiff attended college before and after her 22nd birthday, earning some 40-50 credits. And, furthermore, that she was employed as a case worker at a drug counseling center connected with the college from January 1975 until September 1975. The ALJ's decision became final when upheld by the Appeals Council. Miss Parish brought this action to review the denial of benefits under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). The case proceeded in the District Court on cross motions for summary judgment. The motion of the Secretary was granted affirming the agency's action. This appeal followed. In reviewing the ALJ's decision the question for this Court is whether the decision is supported by substantial evidence. 42 U.S.C. § 405(g). Henry v. Gardner, 381 F.2d 191 (6th Cir. 1967). For the reasons which follow we hold that it is not, and, accordingly, reverse.

The evidence before the ALJ consisted of Miss Parish's live testimony, in addition to documentary medical and other evidence. Patricia Parish was born October 19, 1951 and graduated from high school in June 1969. In that month, she suffered a water skiing accident. A local physician prescribed pills and the symptoms, attacks of numbness in the left arm lasting for a maximum of 10 minutes, disappeared within 3 weeks. Subsequently, Miss Parish held two temporary jobs, each lasting approximately three months. In the Fall of 1970, she enrolled in and completed her first semester at Eastern Michigan University. In April 1971, during her second semester at Eastern she had an automobile accident. X-rays indicated a fracture of the sixth cervical vertebra. Plaintiff remained in the hospital for approximately four days, at which time it was discerned that the fracture was probably an old one, possibly dating from the earlier water skiing accident. In May she experienced the first symptoms of multiple sclerosis: buckling of the right ankle, increasing difficulty walking, and frequent bladder infections. She continued to experience these symptoms in addition to balance problems and tingling in her hands, legs and arms, on into the summer.

Plaintiff returned to Eastern in the Fall of 1971 but was unable to complete the semester because of continuing difficulty walking. At the hearing she testified that she had difficulty writing which impaired her ability to take notes, and experienced frequent fatigue. Dr. Wechsler, a neurologist, admitted her to St. Joseph Mercy Hospital in Pontiac, Michigan where she remained from September 9 through 25. Treatment consisted of intensified injections and physical therapy. A myelogram and an EEG were performed. The documentary medical evidence relevant to this period consists of Dr. Wechsler's progress notes and history, and a hospital report apparently completed by Dr. Ahmad. Dr. Wechsler notes that his examination of Patricia revealed the "presence of a mild hemiparesis with mild incoordination of right arm and right leg. Reflexes are brisker throughout on the right and the right plantar is abnormal." Both reports state that plaintiff describes her right leg as "wooden," has difficulty in walking and maintaining balance and often stumbles although she has never fallen down. She also has difficulty "controlling her hand" when writing which is a problem when taking notes. On bending her neck forward for short durations, she has pain in the form of pins and needles in her fingertips which slowly progresses upwards, resulting in a feeling of numbness in both arms. Dr. Wechsler concluded that the final diagnosis was multiple sclerosis with cervical cord lesions. Dr. Ahmad's report describes plaintiff's gait as "wide based, slightly ataxic with tendency to fall on the left. No foot drop noticed.... Vibration is markedly impaired in the right leg, below knee.... There is appreciable muscular weakness in both upper extremities, no weakness is detected in lower extremities."

In his October 7, 1971 letter to Dr. Deutsch, plaintiff's general physician, Dr. Wechsler stated that "the patient has noticed a slight slurring of speech and slight loss of balance ...." The diagnosis of multiple sclerosis is again made.

Miss Parish's testimony regarding the 1972 Winter semester is somewhat unclear. At one point she indicates that she did not re-enroll at Eastern, while later she states that although she re-enrolled she was unable to complete the semester because of her continued difficulty writing and taking notes. Walking and fatigue continued to be problems. In either event she was not able to complete the semester.

Dr. Chandler, a neurologist, also examined Patricia Parish. His June 6, 1972 report indicates spasticity of the right upper and lower limbs, and of the lower limbs. The report further states that plaintiff walks with a spastic gait. Diagnosis is probable multiple sclerosis.

On July 2, 1972, Miss Parish consulted Dr. Ronald Bennett, a neurologist, for a second opinion as to the previous diagnosis of multiple sclerosis. Dr. Bennett admitted her to Mt. Sinai Hospital from July 20 through August 26, 1972. His impression was "spastic right hemiparesis, probably secondary to cervical cord compression as a result of injury in 1969." On August 7, Dr. Harvey Gass, a neurosurgeon, performed a bilateral cervical laminectomy at C-5 & C-6, in addition to an exploration of the spinal cord for a tumor. At that point he believed that a spinal tumor might be causing plaintiff's neurological difficulties. Miss Parish received physiotherapy which "improved her gait into slight limping." Following the surgery, Dr. Gass indicated in his September 28, 1972 follow-up letter to Dr. Deutsch, that:

Although she has a little limp in her gait it is minimal and much less than it used to be...

Her hand on the right has returned to normal as far as she is concerned, both as far as motor power and sensation is concerned, and even her handwriting has got back to normal. The right lower limb from the hip down doesn't feel quite the same as the left, but it is no cause of trouble to her. Occasionally there is a little tingling in the dorsum of the foot on the right. Initially the altered feeling on the right side involved her buttock also, but it doesn't any more.

Dr. Gass attributed plaintiff's improvement solely to the surgical decompression.

Miss Parish testified that she was unable to return to school in the Fall of 1972 because she was recuperating from the August surgery.

The record is again confusing as to plaintiff's activities during the Winter and Spring of 1973. Initially she testified that she enrolled in Oakland County Community College but was unable to continue because of reoccurring difficulties with walking and note-taking. When later asked if she was able to finish the second semester of the 1972-1973 term, her reply was yes.

The record is silent...

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