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HOCKENBURY v. RIBICOFF

November 27, 1961

Mary E. HOCKENBURY
v.
Abraham A. RIBICOFF, Secretary of Health, Education and Welfare



The opinion of the court was delivered by: WOOD

On February 16, 1959, plaintiff filed with the Bureau of Old Age and Survivors Insurance of the Social Security Administration, Department of Health, Education and Welfare, applications to establish a period of disability and for disability insurance benefits under Sections 216(i) and 223, respectively, of the Social Security Act, as amended, 42 U.S.C.A. §§ 416(i) and 423, which were disallowed by the decisions of the Referee on June 22, 1960. The Appeals Council denied plaintiff's request for a review of the Referee's decision on October 19, 1960, and this then became the official act of the Secretary.

This proceeding was then instituted for review under § 205(g) of the Act, 42 U.S.C.A. § 405(g), which provides that 'The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing.'

 The basic facts which are not in dispute disclose that the plaintiff was born on October 12, 1902, and achieved an eighth grade education; that she worked as a burler (carpet mender) for thirty-eight years and worked with one employer over a period of twenty-five years; that she has performed no other type of work except that mentioned aforesaid for over a period of thirty-eight years and has not acquired any hobby nor has she taken any specialized schooling in any other field of endeavor.

 In December of 1955, plaintiff fractured her right hip as a result of a fall at her place of employment and was hospitalized for three weeks. A pin was inserted and thereafter she used a wheelchair, crutches and a cane for a period of ten months until she was able to return to her original employment. In October of 1956, she returned to work and was able to perform her usual duties until October of 1957 when the hip became extremely painful and required a further operation, a prosthesis, because of the nonunion of the pin in her hip. Following this second operation, she attempted to return to her original place of work but was unable to find employment there because of her inability to stand, sit or walk for any period of time, and for the further reason that she was unable to travel from her home to her place of employment. In addition to the serious injury to her hip, she has suffered from high blood pressure and has been treated for that condition for a period of ten years by her family physician, Dr. J. Irving Schwartz.

 Dr. Stephan A. Christides (an orthopedist) who examined plaintiff on April 8, 1959, recorded that plaintiff was able to return to work ten months after her original operation but that her hip became worse; that after insertion of the prosthesis the plaintiff had had to use a cane to walk. He further found that plaintiff walked with a cane, limped excessively on the right leg, and that it was one-half inch longer than the left but that there was no atrophy. He further found:

 'It is unfortunate that this woman so well preserved cannot resume her previous activities as a carpet mender. She is a strong and intelligent woman with at least 10 years of active working life ahead of her. She can have a sitting job and I believe if she can learn sewing this will be an ideal job for her in the future. She is able to walk six square blocks without pain or discomfort and climb up and down the bus with ease. * * *' (Record p. 87.)

 On July 16, 1959, Dr. Henry S. Wieder, Jr., to a large extent confirmed the former treatment of the plaintiff and concluded that plaintiff might undertake any type of work which permitted her sitting at the job or standing for short periods.

 Dr. Oscar Corn agreed with the findings of the other doctors as to physical disability. He further found that she was totally disabled from doing work requiring any prolonged standing or any degree of walking, and he further stated that she was disabled by the fact that she was unable to handle the rigors of using public transportation.

 Dr. J. Irving Schwartz reported that plaintiff, although primarily under the care of an orthopedist, which he was not, had been treated by him for hypertension and the nonsurgical aspects of her fracture and convalescence. He further stated, interestingly enough, that unquestionably this woman could not do the work for which she had been trained for many years and that for all practical purposes, she was unemployable.

 Finally, Dr. H. L. Fittingoff provided a report of a complete examination made on November 2, 1959. He agreed that the right leg was found to be one-half inch longer than the left and that movement of the right hip elicited complaint of pain that there was restriction in the motion of the hip joint. He further concluded that pain in the right hip joint was probably the result of fairly extensive degenerative changes. In the opinion of this doctor, that while admittedly she could not return to her former occupation, he believed that she could perform some type of work that did not require her to stand or walk.

 Lay testimony revealed that this woman, who was fifty-five years of age in 1957 when she filed her original application, lives alone in a trailer in a rural community, some distance from adequate bus or rail transportation; that she has had eight years of schooling, and can read and write adequately; that at the present time she had no knowledge of sewing or any other occupation which would gain her a livelihood; and giving the greatest latitude to the testimony of all of the doctors, both pro and con, and to the position of the Examiner in this case, admittedly she can do nothing which will require her to stand or walk except for very short periods of time.

 What the Examiner and the experts in this case who referred to 'sedentary' occupations meant, we are not able to completely understand. The rule of law in these cases which come before us as expressed by the examiners repeatedly seems to be that if the person involved can do anything at all and is not a hopeless mental or physical wreck, then he is not entitled to the benefits of the Act. This we do not believe is the purpose of the Act nor the intention of the Congress which passed it.

 We have not reduced all of the facts in this case to this opinion because it would be burdensome to do so, but have attempted to recite those which give the greatest weight and support to the ...


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