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ELLIS v. FINCH

October 20, 1971

Edna K. (Moore) ELLIS
v.
Robert H. FINCH, as Secretary of Health, Education and Welfare


Troutman, District Judge.


The opinion of the court was delivered by: TROUTMAN

This action is brought under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare. The final decision in this case is that of the Appeals Council dated May 26, 1969, denying the plaintiff's request for the review of a decision rendered by the hearing examiner on April 24, 1969, in which the examiner denied the plaintiff benefits under Section 216(i) and Section 223, respectively, of the Social Security Act, as amended.

 The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. 42 U.S.C. § 405(g). This Court has no authority to hear the case de novo. Thomas v. Celebrezze, 331 F.2d 541 (4th Cir. 1964); Mauldin v. Celebrezze, 260 F. Supp. 287 (D.C.S.C. 1966). The question here involved, therefore, is whether there is substantial evidence to support the Secretary's decision. To answer this question, it is the duty of this Court to look at the record as a whole. Boyd v. Folsom, 257 F.2d 778 (3rd Cir. 1958); Klimaszewski v. Flemming, 176 F. Supp. 927 (E.D. Pa. 1959).

 The test for disability consists principally of two parts: (1) a determination of the extent of the physical or mental impairment and (2) a determination whether that impairment results in an inability to engage in substantial gainful activity. Stancavage v. Celebrezze, 323 F.2d 373 (3rd Cir. 1963); Klimaszekski v. Flemming, supra, 176 F. Supp. at page 931.

  "Substantial evidence" has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion". Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S. Ct. 1018, 1026, 16 L. Ed. 2d 131 (1966); Consolidated Edison Co. of N.Y. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938). It must be enough, if the trial were to a jury, to justify a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. If there is only a slight preponderance of the evidence on one side or the other, the Secretary's finding should be affirmed. Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir. 1962).

 There are four elements of proof to be considered in making a finding as to plaintiff's ability or inability to engage in any substantial gainful activity. They are: (1) medical data and findings, (2) expert medical opinions, (3) subjective complaints, and (4) plaintiff's age, educational background, and work history. Dillon v. Celebrezze, 345 F.2d 753, 755 (4th Cir. 1965); Thomas v. Celebrezze, supra, 331 F.2d at 545; Underwood v. Ribicoff, supra, 298 F.2d at 851.

 Therefore, we proceed to a consideration of the entire record.

 At the hearing held before the examiner on March 4, 1969, the plaintiff testified that she was then forty-two years of age, that she had completed a high school education, and that she was the mother of three children, aged sixteen, eighteen and twenty-one years respectively. (P. 43) Her education consisted of the usual high school courses and to the extent that she received any training in typing, shorthand or bookkeeping, she had not followed through with further training in such field and had no experience therein whatever. (P. 44) On the contrary, the only work which she has performed is that of a machine operator, first in a fibreglass factory spinning yarn and, later as a sewing-machine operator. (P. 44) She last worked on September 29, 1967, having commenced work originally in 1946, but having interrupted her career as a worker because of her intervening career as a mother. (P. 45) She testified that because of her poor state of health, including coughing and shortness of breath, she was unable to attend work regularly and was, therefore, fired apparently in 1967, but was later rehired because of the intervention of the Union. (P. 46) She has been under the care of the family physician, Dr. Schooley, since 1964 and, among other things, is allergic to dust, sewing materials, the lint from such materials, dyes, glues, smoke, etc. (P. 46) Her condition in this respect continued from 1964 through 1967 and became, she stated, "progressively worse". (P. 46) Accordingly, she eventually left her work in September of 1967. (P. 47) Efforts to control her condition resulted in her hospitalization in the F.W. Black Hospital at Lewistown where she was first admitted for a period of five days, went home one day, was returned immediately for six more days, was home three days, and then sent to the Holy Spirit Hospital at Camp Hill for treatment by a specialist. She was at the Holy Spirit Hospital at Camp Hill for a period of eleven days, being treated for her lung condition including asthma and bronchitis. She testified that as she was subjected to the dust located in the area at which she worked, she would become short of breath and commence coughing. (P. 48) This became the subject of comment and objection by her fellow-workers. (P. 48) She also complained of arthritis and fibrosis. (P. 48) She explained that the joints in her fingers "swell considerably", that her feet and legs likewise swell and that at times she cannot bend her ankles or fingers. (P. 48) On occasions, therefore, she cannot stand. (P. 49) She is unable to remove the rings upon her fingers because of swelling and, particularly in the morning, is unable to do anything with her hands, sometimes having difficulty even carrying a cup. She testified that sometimes her "ankles don't move at all". (P. 49)

 Her past state of health has been the subject of several operations and other surgery, including a tonsillectomy, appendectomy, hysterectomy, the removal of a cyst from her bladder and the removal of "growths" from the joints of both wrists. (P. 50) The combination of these medical experiences in the past has created what she described as a "nervous" condition which, in turn, affects her asthmatic condition, causing coughing and headaches. (PP. 50, 51) Receipts were presented establishing the purchase of substantial drugs during 1967 and 1968, the consumption of which, however, has not relieved the conditions of which the plaintiff complains. (PP. 51, 52)

 Since she last worked on September 29, 1967, she has attempted to perform certain duties in the home, but is unable to perform substantial duties because of her chronic cough resulting from her asthmatic condition which keeps her awake at night, requires that she sleep on propped-up pillows and causes repeated coughing spells. (P. 53) She also suffers an arthritic condition of her hands which she states prevents her from performing "fancy stitching" which she previously did in connection with her work and which she is no longer able to do because she cannot so much as write a letter without suffering pains in her hands, cannot twist her hand or wrist, is unable to pick up small objects and perform like functions. (PP. 53, 54)

 Since September 1967 the employment office, as recently as 1969 when the hearing was held before the examiner, sought to obtain employment for the plaintiff in the area in which she resides, but was unable to obtain any work for her. (P. 54) She indicated her willingness to return to work if she could do so, but in this connection pointed out that she is not able to drive an automobile any distance because of coughing spells resulting from her asthmatic condition which at times cause her to "black out" and therefore make of her a very dangerous driver. (P. 55) Additionally, she has arthritis of the hands and fingers making it difficult for her to grasp the wheel. (P. 55) Only one train and no buses whatever service the area in which she lives each day.

 In addition to all of the above, she suffers an allergic condition and is, among other things, allergic to cosmetics whether worn by her or by others and detailed a personal experience when, while attending her son's graduation, she was carried out because of the "perfume and stuff" worn by other people which was just "too much for me ".

 
"Q. Do you think you would be able to do any work as a clerk?
 
A. I cannot be out with the public.
 
Q. Why not?
 
A. Because I'm allergic to the cosmetics, a lot of materials that other people wear, even cosmetics on other people. I went to my son's graduation, they almost had to carry me out because of the perfume and the stuff the other people had on was too much for me.
 
* * *
 
Q. But your husband smokes, right? You've indicated that you are even allergic to cosmetics and perfume worn by men and women, because there is a great trend toward men wearing colognes, after shave lotions.
 
A. I know.
 
Q. They adversely affect you, right?
 
A. Yes, sir.
 
Q. To the extent that you are unable to be among people?
 
A. That's right."
 
(See pages 56 and 57.)

 The efforts by the employment office to obtain employment for her antedated the point in time at which the arthritic condition of her hands became so bad that in her language "I could not use my hands". (P. 58) The employment office, she states, was aware primarily of her asthmatic condition and was not aware of her more recently developed arthritic condition which has been diagnosed by Dr. Whitehill. (P. 59)

 Dr. Whitehill recognizes the arthritic condition of the hands and fingers as being something which prevents her from doing "any typing or anything that may cause her discomfort with her hands". He so stated in report dated as recently as January 7, 1969. (P. 235) In connection with certain operations performed on both wrists and at least one finger, he advised the plaintiff, referring to the arthritic condition, that "he could do nothing about it." (P. 59)

 She admits that the arthritic condition is not as serious as that suffered by her mother and that she, the plaintiff, is not, like her mother, so "crippled up" that she "cannot move". However, her fingers and her ankles are, in her language, "crippled up", but she admits that she is not yet "a complete cripple with arthritis". (P. 60) Since being considered for employment by the employment office, which was unable to place her, the arthritic condition has substantially worsened.

 
"Q. But since that time the swelling, the pain in the fingers and in the joints of your fingers has substantially worsened?
 
A. Yes."
 
(See page 61)

 Her I. Q. is such that she is college material and considered "above average", but against the possibility of her going to college is the fact that her allergic condition is such that she cannot be exposed to and come in contact with people. (P. 63) Moreover, it is unrealistic to expect a mother with three children in her circumstances to assume a four-year college course which, as subsequently indicated by the vocational expert, might well become a six-year course. In any event, continuing with the arthritic condition, she explained that she cannot, when reading, hold the book for an extended period of time but is obliged to lay it in her lap. (P. 64)

 Thus, she finds herself in a position where she cannot assume employment which exposes her to the public because of her allergic condition and, on the other hand, she cannot remain at home alone because of her coughing spells resulting from her asthmatic condition which she suggests could choke her "to death". (P. 65).

 Then follows an extended and somewhat irrelevant cross-examination of the plaintiff by the examiner indicating that it was the latter's impression that the plaintiff's marriage, as recently as August 30, 1968, indicates that she is not as substantially disabled as her testimony would suggest. Obviously, the plaintiff's marriage proves nothing with respect to the extent of her disability. Moreover, the resulting colloquy in which sarcasms were exchanged as between the examiner and the plaintiff's counsel adds nothing to the record except to place the plaintiff's counsel on a platform from which he argues that the examiner was personally biased and prejudiced as against this particular plaintiff.

 Plaintiff's husband, Raymond Ellis, testified that he has known the plaintiff since 1966, that he knew of her physical condition during the entire period of their acquaintance and that it has become progressively worse. (P. 74) He explained that he has seen her completely black out as the result of coughing resulting from her asthma, that he has seen her gasp for air and, on occasions, "turn blue". (P. 75) He states that she constantly loses sleep with coughing spells, that she sleeps on pillows and is, under any circumstances, unable to sleep a whole night. (PP. 75, 76) She is unable to negotiate steps, performs very little of her housework and cooking, most of which is performed by her daughter. (P. 76) She complains constantly of pain in her hands and ankles, suffers from a swelling of her joints, particularly in the morning, is unable to move her ankles for some period of time in the morning, and "not able to do anything with her hands".

 
(See page 77.)

 Additionally, she is extremely nervous which "triggers her asthma" and requires repeated trips to the doctor. (P. 78) On an average she sees the doctor about twice a week. (P. 78) Her physical condition, according to the testimony of her husband, results in "emergency" situations, requiring him sometimes to return home over the lunch hour. (P. 81) Since their marriage in August 1968, plaintiff's coughing has become more frequent, more severe, and for longer periods of time. (P. 82)

 Her daughter, Georgia Moore, who was cross-examined at length by the examiner, testified as follows:

 
"Q. Georgia, how long have you been doing the work around the house?
 
A. Since 1965.
 
Q. Why has that been?
 
A. My mother had her hysterectomy in 1965.
 
Q. How has her condition become since that time?
 
A. It's been gradually growing worse.
 
Q. In what respect?
 
A. The asthma attacks in the summer would come more often than in the winter because she's out more, she's just slowly getting ...

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