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Kutchman v. Cohen

March 20, 1970

DOROTHY KUTCHMAN, PLAINTIFF-APPELLANT,
v.
WILBUR J. COHEN, SECRETARY OF HEALTH, EDUCATION AND WELFARE, DEFENDANT-APPELLEE



Swygert, Chief Judge, Fairchild, Circuit Judge, and Morgan,*fn1 District Judge.

Author: Morgan

ROBERT D. MORGAN, District Judge.

Upon plaintiff's petition for review, filed under the provisions of Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), the court below entered summary judgment affirming the decision of the Secretary denying plaintiff's applications to establish a period of disability and for disability insurance benefits. Plaintiff appeals from that judgment.

There is no factual dispute. Plaintiff suffered poliomyelitis as a child, as a result of which she has since suffered from partial paralysis. She has no use of her left arm. Her left leg is seriously affected by paralysis.

She completed high school. Thereafter, with the exception of certain periods of unemployment because of injury and for other reasons, she was employed in various sedentary, or semi-sedentary, occupations during a period of some twenty years and until May 28, 1964. Her employment was terminated at that time because of difficulties with her left leg. Shortly thereafter she endured a long period of hospitalization for therapeutic procedures, including fusion of her left ankle.

She filed an application for the establishment of a period of disability and disability benefits in December, 1964. In September, 1965, the Secretary determined that she was entitled to a period of disability, commencing in May, 1964, and to disability benefits. A factor deemed significant by the Secretary at that time was the fact that plaintiff, because of her physical condition, could not use public transportation in going to and from work.

On April 25, 1966, plaintiff obtained employment as a receptionist in the Personnel Department at the Lutheran Deaconess Hospital in Chicago. She did all the work that her predecessor in employment had done, except typing, and except for the fact that she worked a three-day week. After three months at Lutheran, she terminated her employment because the work and difficulties of travel to work proved too strenuous for her.

Thereafter, in October, 1966, plaintiff obtained employment at Norwegian American Hospital in Chicago. She was still engaged in that employment at the time of the hearing before the Hearing Examiner in February, 1968. Her work entailed the answering of phones, taking messages for doctors, handling mail, selling and distributing newspapers and issuing visitors passes. Much of her work is done at her desk, though the job does require considerable walking on the main floor of the hospital. At the time of that hearing, she was working an average of thirty-six hours per week. Her take-home pay was approximately $79.00 bi-weekly.

Though her supervisor at Norwegian stated that plaintiff was totally disabled, she also stated that no special conditions are arranged for plaintiff, that she was hired on her merit because she could do the work required, and that her employment would be terminated if she were not able to do the work which her job requires.

In June, 1967, the Secretary terminated plaintiff's period of disability and disability benefits upon the ground that she was working substantially full time for wages and that she was therefore able to engage in substantial gainful activity. Following a hearing before a Hearing Examiner, held at plaintiff's request, the Examiner found that plaintiff was under a disability from May, 1964, until April, 1967, and that, under the applicable statutes, her entitlement to disability insurance benefits ended in June, 1967.

No new medical evidence was introduced at that hearing.

The Hearing Examiner found that there had been no substantial change in plaintiff's physical condition since the date of the prior disability determination. He also found that the fact of her employment in a position in the competitive labor market deomonstrated her ability to engage in substantial gainful activity.*fn2

The judgment below must be affirmed. It is apparent from the administrative record that the Secretary's finding that plaintiff is able to engage in substantial gainful activity is supported by substantial evidence. That determination exhausts the limits of our power of review. 42 U.S.C. § 405(g); Workman v. Celebrezze, 7 Cir., 360 F.2d 877, 878; Jones v. Celebrezze, 7 Cir., 331 F.2d 226, 227; Degner v. Celebrezze, 7 Cir., 317 F.2d 819, 820-821.

The thrust of plaintiff's argument for the opposite result rests upon the assertion that the evidence as to the amount of plaintiff's earnings, alone, supports the Secretary's determination. She asserts that the original medical evidence, including evidence of her pain, and the finding that her physical condition has not changed substantially since 1964, refutes the presumption of her ability to engage in substantial gainful activity.*fn3 Principal reliance to support that argument is based upon the decisions in ...


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