*1 by persons other of the release of such necessary to motivate federal courts is STARK, Plaintiff-Appellant, Bernice F. Congress “gap” in so-called to close the say statutory To
the federal scheme.16 (Successor Caspar W. WEINBERGER least, unacceptable deny Richardson), Elliot Defendant- Appellee. right to a fair and individual citizen his No. 73-1993. dispassionate of the issue consideration guilt of his or innocence because Con- Appeals, United States Court of gress discharge has been derelict Seventh Circuit. responsibilities public of its to the at Argued Feb. large. May 31, Decided my opinion, presents this case one of the rare situations fail- give any judge
ure of the trial advice jury matter that
at all to the on a must large
have loomed in their deliberations plain in- It is almost
constituted error. jury if the
conceivable me
put to one side concern about guilty verdict,
consequences of a not
they would not have entertained a rea-
sonable doubt to the defendant’s
sanity.17 is a substantial Since there jury’s
likelihood that the outcome of by
deliberations this omis- was affected
sion, I would for a reverse and remand give
new trial with directions incorporating
struction the substance argument charge, counsel, and the Pope States, su-
described v. United
pra. (then prosecutor implicitly expressed
16. Note the comment Mr. Justice Even the Judge) Pope pretrial Circuit Blackmun United doubt when the States, supra, custody 732, following op- his under consideration. In its position “We, too, hope bail, discussion of § 211: to a motion for the Govern- ' gap, exists, system in the federal ment described the examination Dr. Rub- if adequately (Em- in, psychiatrist, quoted soon be remedied.” defense phasis added.) “gap” following report: This be identi- could from Dr. Rubin’s statutory still, fied either as the absence of au- “Mr. Greene suffered from and mandatory though so, thorization commitment less suffers from a mental dis- expressly substantially the absence of a statute establish- ease which interfered with ing procedure discretionary capacity commit- his to conform his conduct to the event, Legis- ment. In either since 49 dictates of the State law . . He had little so, Congress certainly prompted latures have done or no control over his behavior by psychotic paranoid should address Each as it was issue. time Con- delusions.” gress enlarges scope federal criminal R. 56. jurisdiction, enlarges significance expert’s opinion sufficiently it also reliable “gap” irony purpose and increases of en- serve the Government’s to con- acting legislation, is, according fine such as defendant but to the Gov- merely protects legislators’ ernment, determining guilt immediate unreliable neighbors within the District of Columbia. or innocence. *2 right to receive claims the year in which since
benefits applied under the So- for relief she first perfectly Security clear It is Act.2 cial many then—and indeed that she was *3 the years within had been—disabled meaning However, because the Act. of special of requirement of the Secretary statute,3 determined period dis- of that she must establish a commencing ability no later than Decem- ap- failure ber 1950. Plaintiff’s ply promptly (which more attributed knowledge rights) thus to lack of of her claim the amount of her limited prob- unusually created difficult but also proof. law lems of judge The administrative favor, Ap- found in her but peals Council Our review reversed.4 the entire record convinces us that original determination Chicago, 111., Kates, M. Richard should be reinstated. plaintiff-appellant. Secretary pri- The two has advanced R. Kathryn and Stanton H. Baldwin mary bases decision Div., Appellate Sec- Koppel, Attys., Civil Appeals Council. First is that Washington, Justice, D. tion, Dept, of satisfy her failed to burden Atty., C., Thompson, Chi- S. R. U. James disability. proving Second is that defendant-appellee. cago, 111.,for certain items evi- decision rests PELL, and STEVENS Before accept which we should as sub- dence Judges. SPRECHER, Circuit evaluating Before the bases stantial. Secretary’s action, we shall Judge. STEVENS, Circuit briefly the uncontradicted evi- describe supporting plaintiff’s claim. This dence been afflicted Plaintiff has testimony, plaintiff’s evidence includes scleroderma,1 progressive, incurable judge the administrative disease, the late 1930’s. since She of Medical Treatment The Handbook defined as has been Scleroderma (12th ed. mesenchymal chronic disease of undeter- origin, mined characterized connective appli- 2. 42 U.S.C. 416 & 423. Plaintiff’s §§ proliferation tissue the dermis and July 29, cation was filed on 1971. Under organs. many internal onset is insidi- The 404.307(a) provisions of 20 C.F.R. § ous, hands, sweating with stiffness of the (1973) will not receive benefits for feet, Raynaud’s phe- and the hands and period July 29, earlier than eventually nomenon. The skin becomes glossy, fingers hard, thick and and the and 416(i) (3) (B) (i). § U.S.C. Gradually toes become fixed. the entire Appeals integument involved, 4. The case was before the Council becomes and ulcera- tions, pigmentation, adminis- twice. After first reversed the calcification sought Dysphagia, gastrointes- judge, jdaintiff occur. trative law review disturbed motility, respiratory pursuant embarrassment, tinal court to 42 district U.S.C. pneumonia 405(g). and heart failure and renal That court remanded the case volvement are additional evidence. due to connective tissue to consider proliferation received, After viscera. The condition this evidence was usually slowly progressive many decision. over Council reaffirmed its summary judg- years, usually and death district then entered due to renal court sepsis. Secretary. or cardiac is before failure or to Treatment ment for the case symptomatic judgment. supportive. appeal us on an from that credited; records; affidavits of to leave her that she would formed plaintiff, physically former co-workers to do she was because doctor; treating job.7 and a a letter physician; and medical de- treatises unemployed between While scribing Raynaud’s phe- scleroderma and light 1952, plaintiff housework. did some nomenon. fingers tasks irritated were But occasionally dishwashing, and I. up.” When “flare her condition Sears, she Except dispute to work started for the over the date improved; her condition disa- affliction became believed neither continu- bling, essentially she could the facts uncontro- are difficulty effectively. ously nor She verted. at a grasping “worked scissors in 1914. now Plaintiff was born She *4 girls.” pace the other than much slower Cicero, Illinois, in with her hus resides in to leave Sears caused her Her illness band, in Plain whom she married 1935. 1953. year complete her first tiff did not to treat continued doctors Plaintiff’s high except and, an unfin school for determine to her, unable still were but course, typing vocational ished Her dis- difficulties. her the cause training. jobs: has had three an She upset she was When increased. comfort Chicago assembly line for Flexi riveter cold, feet and exposed her to or 1946; ble Shaft Co. from 1937 to as a pallid. She and numb became hands in material cutter for Roebuck Sears swelling her developed painful 1953; assembly 1952 and line and on tightness the skin fingertips and for Western from to Electric 1958.5 Neverthe- upper and chest. arms her Chicago starting Shortly after for West- less, at to work she went in 1955 assign- fingers began plaintiff’s Shaft, Flexible first Electric. Plaintiff’s ern They ulcerous, tighten- assembly to trouble her.6 became line on the ment was increasingly manip- However, to ing stiff and was unable difficult she screws. ulate, effectively especially in and was cold weather. She use screwdriver sought assignment advice, but doctors Her next transferred. soon diagnose hands, dip covered were unable to her affliction. required her that she employees Plaintiff’s solution. cellophane, fellow assisted her acetone by into an fingers work, ultimately company result, plaintiff’s at in- were but aAs highest years earnings During at Plaintiff’s three at her last two annual Chi- cago $2,664 problems hands Flexible her were in with 1945. At Sears her Flexible earnings only extremely her her total were difficult $744.81. At made highest Western Electric she achieved her work. gross earnings plaintiff’s ($4,200) to state but her Neu went on Mrs. for her so declined in have to “cover 1957 and amounted would co-workers trying keep job was $484.85 in which she her she could could do so lit- and that “she hard to do” so Neu, 6. The affidavit of Jeanette who worked finally company asked value” tle of plaintiff Chicago Flexible, states: Essentially same facts were leave. When I met her [Bernice Stark] Bshara, Patricia affidavit of forth set something wrong she stated that plaintiff between 1937 also worked with who her hands and that she had that condition Bshara, further 1946. Mrs. and years. two . . Her difficulties pain plaintiff from “would noted that progressed years with her hands as the hands.” of her the condition fingers went on. It involved her job that, were stiff mar- and which were hard testified but for to move Plaintiff company II, and as time went on she War could not hold ket created World things. employment fingers In cold weather her terminated would puff up, Finch, Compare burst and fluid would run Orzel v. out. sooner. This would occur in other weather but 153-154 cold weather affected the worst. tapering and mild denced demonstrable greatly her condition irritated atrophy. en- Tests further revealed she In March of 1957 deteriorated.8 University of arteries. farction and occlusion Research of Illinois tered the diagnosis heart Hospital, final was arteriosclerotic where Educational disease, diagnosed Raynaud’s and re- remission condition was current scler- thromboembolism. Since phenomenon.9 progressive, oderma is cure, fatal and without employ of in the Plaintiff remained doubtful that condi- January 10, 1958. Western Electric until improve. has under- tion will ever She finally discharged because She was gone and, surgery most for the perform required sat- could not part, is now confined to bed. isfactorily. Electric at Western While rate, high absence great pain she worked II. good from ceived a deal of assistance Secretary’s contention is initial The administrative her co-workers. prove, failed to as re- attempts judge “her concluded that quired by 423(d)(1)(A), 42 U.S.C. § economic from severe work resulted (A) suffered a medical- she: need.” ly physical impairment; determinable Re- reentered the (B) impairment reason of this Hospital. Her and Educational search engage diagnosed as scleroderma *5 condition was gainful activity. According to the Sec- phenomenon. accompanied by Raynaud’s retary, de- we therefore must affirm the plaintiff 1971 was ad- Between 1960 and cision of the Kirk- Council. See hospital separate on five mitted to (5th Weinberger, land v. 480 F.2d 49 complained progres- of occasions. She 1973). Cir. hardening and tenseness of the skin sive difficulty parts body, on various of her A. swallowing, increasing inability to provides 423(d)(3) 42 U.S.C. § fingers wrist, ede- move and ankle her “physical impairment” that a or mental ma, weight asymptomatic loss, and an in her left On occa- mass breast. impairment an that results from ana- plaintiff sions certain would state that tomical, physiological, psychological symptoms gave or of these her trouble less gen- past. Nevertheless, abnormalities which are demonstrable than in the her by medically acceptable progressively clinical and eral condition became laboratory diagnostic techniques. worse. purpose plaintiff of this is make In section 1971 was examined and asthenic, diaphoretic cy- or clear that statements a claimant found to and be plus pitting mere conclusions of others as to the na- anotic. not- One edema was impairment ture extremeties, and extent of an are ed in the and hands evi- employment Bshara lier term at Western Electric. Mrs. 8. The details of testimony plaintiff and corroborated Western Electric were in her set forth testi- mony judge Mrs. Leo. before the administrative law Leo, and in an affidavit of Leona a co-work- Raynaud’s phenomenon company. is a vascular disor- er at this Mrs. Leo stated : capil- spasm Finally [plaintiff] leave, marked recurrent of the der was asked to especially fingers laries, carry observing just and those of or could not on. From symptoms pallor, pain problems include toes. Concomitant with her and I do not succession, cyanosis kept pace and redness in numbness know how she on even at symptoms usually pain. limping along most are and she was physical being at. It was not her during kept pronounced working, weather. severe cold gan- “pure guts.” badly cases, local lead to I the disease believe she money. grene. needed the Bshara, Chicago a Flexi- Mrs. co-worker at ble, kept through in contact with
1097
acceptable
be
administrative
sufficient. There must
impair
judge
opinion.
are consistent
medical
that such
evidence
S.Rep.No. 744,
They
ment
90th
establish that the
existed.
onset
sclero-
reprinted
Cong.,
progression
(1967),
in derma is
1st
insidious
Sess.
its
slow;
Cong.
pp.
Admin.News.
while its cutaneous manifestations
1967
&
U.S.Code
2882-2883;
may,
occasion,
regress,
404.
the disease
20 C.F.R. §§
1501(c)
(1973). The
follows its
Secre nevertheless
fatal course.
& 404.1523
argues
Raynaud’s phenomenon,
tary
pain,
that there is no medical evi
ulcerations
tightness
establishing plaintiff’s suffering
increasing
of the skin
dence
are
1951;
there
all associated
ini-
disease
its
tial,
stages.
fore, plaintiff
prove
“physical
subsequent,
Fi-
failed to
a
well as
nally,
University
impairment.”
reports
of Illinois
contained
the record
consist-
are also
produce
Plaintiff
opinion.10
ent with this
medical
of the
doctors
records
three
who
during
treated her
1940’s and
the late
opinion
A medical
does not be
early
explained
1950’s. She
that her
unacceptable,
purposes
come
of §
destroyed
flood,
records had
in a
been
simply
423(d)(3),
because it
is based
long
two
the doctors had
since upon
symptomology,
a
Bittel
claimant’s
deceased
third doctor
Richardson,
(3d
v.
systemic
productive
goal
important
and since
sclerosis can lead
the “most
therapy”
important
“prevent
The most
and useful
lives.
is to
*7
goal
injury
therapy
preserve
hands,”
in
the
is to
function
we conclude that
disability;
question
establish a
engage
the
ence,
is
in
other kind of substan-
disabling
the
severity.
did
disease become of
gainful
tial
na-
work
exists in
which
the
clear, however,
It
is
that a disease
economy, regardless
be
tional
of
whether
actually reaching
this
come
severe without
in
work exists
the
immediate area
which
crippling stages.
its most advanced and
lives,
E.
specific job vacancy
he
or whether a
g.,
Secretary
Dept.
Health,
Martin v.
of
of
him,
exists for
he
whether
would be hired
Welfare,
(4th
Education
and
1099
plain-
31, 1950,
made
not occur until
of
December
the disease
1954. Some
on
previous
complications
to do
work”
tiff’s
were not noticed un-
“unable
[her]
423(d)(2)(A).
1954,17
others,
meaning
til
but
such as the ulcera-
within
§
tions,
primary
were a
cause
reading
purely
literal
Under
disability, clearly
were. We have
statute, plaintiff
to do
was “able”
Rostenberg
doubt,
by
as found
Dr.
only aggravate malignant,
which could
judge,
that her
administrative
progressive
believe,
illness. We do not
present
scleroderma was
while she was
Congress
enacted a rule of
Chicago
employed
Flexible
duty upon
imposes any such
law which
its intended beneficiaries.
regard
Nor do
the admission
we
III.
plaintiff’s application
controlling.
Secretary’s
second contention is
In her answer to the
when she
upon
based
three items of evidence ad
became unable to work because of her
(1)
verse to
certain
claim:
disability,
she stated:
“Dec. not
placed the
of her
medical records
onset
ambiguous
first 1958.”
answer
This
1954;
(2)
appli
illness
about
on her
because it
not clear whether
she
she
cation
benefits
stated that
December, 1958,
meant
“not
1958;
first became unable to work in
the first” time she became
(3)
employed
she was
after 1950.
work, or that she could not remember
Secretary argues that
this
evidence
specific
date when she left Western
for the determina
Electric,
“not
but
it was
the first of
Council;
therefore,
Appeals
tion of the
December.”18 We think the latter inter-
review,14
scope
under our
we
narrow
pretation
reasonable,
is the
but
more
duty
is, however,
must affirm.15 It
our
nevertheless do not consider this admis-
light
appraise
this evidence
plaintiff completed
sion
When
critical.
merely
it
entire record and not
to view
application
she knew she had worked
16
“in isolation.”
viewed in
When
and,
at Western
since
Electric
1958
upon
Ap
manner
facts
which the
represented
counsel,
peals
relied are not substantial.
Council
requirement
unaware of the
reading
necessary
A fair
of the medical records
it
made
for her to estab-
University
of Illinois Research
lish an earlier
date. She sim-
Hospital
sug-
ply
and Educational
stated the
belies
fact that she was not to-
gestion
tally
that the onset of
unable to work until 1958. That
must,
course,
pages
specifically
affirm
We
the Secre-
Ed.
are
cited
tary’s
supported by
approval
Perales,
if
decision
substan-
Richardson
402
405(g) ;
389, 401,
tial evidence.
U.S.C.
Bartell
U.S.
statement
withstanding
actually
in
the fact
that she
that
cance to the evidence
employed
and at
work.
both at Sears
fact been
after December
Western Electric
The uncontroverted
evidence demon-
Ribicoff,
F.Supp.
202
1950. See Cook
strates
that
worked
be-
(S.D.Tex.1962).
The difficult
559
desperately
money;
cause she
needed the
case,
the admission
in
issue
department
was
one
transferred
to
merely highlights,
application
in
her
condition;
another because
her
need-
employment
post-1950
con-
whether
that
ed the
her
assistance of
co-workers
to
of non-dis-
evidence
stitutes
substantial
perform;
high
rate;
had a
absence
ability
31, 1950.
as of December
great pain;
worked in
received the criti-
regulations
foreman,
cism of
Unquestionably
finally
was
concluding
fired,
provide
because she
not
a basis
could
satisfactori-
ly perform
during
plaintiff’s employment
period
job without
assistance.
greatest
significance
Of
in
to have
disa
is the
which she claims
been
disqualifying.19
evidence which indicates
that,
bled is
But
is clear
if her
properly
condition
diagnosed,
decided on its
each case must be
facts,20
certainly
post-disability
employ
almost
own
been ad-
necessarily
vised
disqualifying
to
ment
is not
in
work
discontinue
which could
only aggravate
every
progressive
simply
a
is not
case.21
incurable
Although
employment
disease.
neither
answered
the fact
or
she nor her
fully
earnings.
doctors
Rather,
extent of her
aware
the extent of
disability
struggling
answer
while she
turns on whether
she was disa-
F.Supp.
(D.Del.1966) ;
404.1532(a)
(1973) provides
161
19. 20
§
C.F.R.
see Orzel v.
Finch,
part
that,
during
in
if an individual
works
any period
alleges
By
terms,
404.1534(b)
inapplicable
in
he
its
he was under
§
employment may
disability,
where
a
the individual’s work
such
demon-
establishes that
ability
engage
he “does
strate
that he
in fact
not have the
disabled.
to
in
gainful activity
Furthermore,
404.1534(b)
substantial
C.F.R.
under the
§
criteria
(1973) provides
earnings
in §§
an
404.1532
individual’s
and 404.1533 and
.
.
.
averaging
[404.1534(a)].”
404.1532(d) pro-
from work
activities
excess of
Section
per
part:
shall,
vides in
month
under certain circum-
$140
stances,
disability.
regu-
adequacy
perform-
establish
These
of an individual’s
apparently implementations
assigned
are
ance of
lations
work
also evidence as
423(d)(4).
ability
engage
whether or
has
U.S.C.
not he
gainful activity.
in substantial
upon
20. The
also relies
our deci-
failure,
[A]n individual’s
because of his
Cohen,
sion
Kutchman
425 F.2d impairment,
perform ordinary
simple
or
In Kutchman
this court
satisfactorily
supervision
tasks
without
stated:
beyond
usually given
assistance
other
Since
invoke a fact-find-
claims
performing
may
work,
individuals
similar
process
ing
basis of the
evidence
inability
constitute
evidence of
to en-
presented
particular
gage
gainful activity.
in substantial
claim,
always questionable
whether
implies
Section 404.1533
that a claimant
bog
the invasion
a court of the
of com-
engaged
gainful
not have
in substantial
ac-
analysis
parative
case
serves
useful
tivity
he,
impairment,
where
of his
“because
purpose.
analysis
Extended
of those cas-
spend
is unable
as much time
work ac-
not, therefore,
es is
undertaken.
customarily spent by
tivities as is
individuals
HQ1 manifestly maintain because of her us to the result that seems need,” just “severe economic we think it is all under the circumstances.23 apparent that, now at all times after therefore the We reverse decision be- sufficiently se- affliction was -judgment enter low with instructions to disabling meaning rious to be within the plaintiff. for the of the Act. Reversed.
IV. Judge PELL, (dissenting). Circuit disagreement There can be no that the argu- recognize We the force of the present plight sad of the the claimant though that, ment even we differ with arousing capable high appeal of is de- Secretary’s appraisal the evi- the gree sympathy. However, I because dence, may judg- we not substitute our long agree majority am that the sup- ment his as as the evidence opinion correctly applicable the reflects porting the denial substantial law, compelled I feel to record this dis- that, case, it is not unreasonable sent. plaintiff’s post-1950 to characterize em- court district concluded as a mat- Normally ployment as substantial. ter of that the the law might bur- proper procedure a re- dictate showing den of ability that she was under dis- expert testimony mand to receive direct- before December whether, specifically the ed ap- This was pears crucial date there having symp- the benefit later known disagreement be no that regard toms, opinion proof burden of was on the claimant. having physically as unfit perform actually the work which she The district court further concluded perform after 1950. For rea- three as a matter law there was that sub- sons, however, pursue decline to we stantial evidence in the administrative route. finding Ap- record to of the peals Council. First, stated, already as the uncontra- expect Here I would to find that I was pro- dieted evidence now in the record verging from the reached result vides an affirmative answer to that majority opinion. However, opin- question; may qualify we not an- recognizes explicitly ion that “we discounting testimony swer of a judgment not substitute our [the witness whom the administrative Secretary’s] long sup- as the evidence as judge saw, Second, heard and credited. porting the denial is period since the claim involves the that, case, in this it is not unreasonable since and since the cost to both plaintiff’s post-1950 to characterize em- parties evidentiary hearings, of further ployment Nevertheless, as substantial.” possibility ap- of still another judgment court district peal, disproportionate so judg- versed with to enter a direction good at stake, amount there is reason to plaintiff. ment for the bring proceedings expe- to an end as ditiously possible. finally, appears And The result to have been impossibility determining view of the opinion reached on the basis of medical complete accuracy the extent the administrative as well record plaintiff’s equitable over affliction certain two decades considerations which ago, construing policy encompassed the settled I do find to not have been favorably statutory statute to the claimant22 leads scheme.1 As to the by Judge Sprecher Cohen, 22. See cases cited his See Bartell v. 445 F.2d 83- dissenting opinion Richardson, in Bledsoe v. 1288,1293 disagree 1. I not do with the statement in the opinion majority policy 23. For third second and reasons we also settled po- favorably do determine remand to construe the statute to the claim ant; employment, policy tential for other see note such does not to me supra accompanying text, eligibility after 1950. mean that mere under the statute *10 1102 opinion, question part group from the pay aside worked a as a and the appears majority depended production. opinion upon group that the to be It weighing finding sympathetic this evidence and conceivable that co-workers ailing persuasive admittedly help comrade, will
more than the but when three-year period evidence on which the this substantial Secre- lasts over a tary relied, pay group, pre- I the do not find the the those in also crucially sumably “bread-earners,” being the determinative record con- stantly question. diminished, it is understandable evaluating if Secretary, the the evi- Rostenberg Dr. concluded that the dence, skepticism a viewed with present was and from the during period claim that the however, This, late is not the 1930’s. engage the claimant unable to was question. person fact that a crucial The gainful activity. suffering diagnosed was disease a particular help by The or ailment at a time claim of the co-workers at proof supported by in the absence of Western sufficient of its Electric the disabling severity employee affidavit of to warrant award fellow of that one plant Henry Gardner, experi- of benefits. who told of the 381 F. difficulties by 191, 1967), during enced 2d 195 de claimant cert. nied, plant. 993, 492, at the 389 S.Ct. 19 L. The affidavit U.S. 88 states that heavy opinion claimant Ed.2d 487. I find no medical rate of ab- sence. The that disease was of sufficient severi claimant’s own affidavit ty usually states she the claimant dis “was absent rendered at least days 31, (Emphasis two half on or abled before December week.” add- ed.) The co-worker’s affidavit also employ The evidence” of “substantial states, “I believe that she said that she majority opinion ment adverted to in the getting help. some medical She was dispositive appears to me to be weak help and co-workers had to looking appeal. Just issue this with her work .... Her co-work- alone, employment I Electric Western help ers tried to her.” earnings: 1955, following note 1957, $2,556.26; 1956, $4,200.00; Ordinarily great deference should be $4,114.93; The $484.85. given credibilty to the determinations wages during period from received this by hearing actually made the tribunal January March 1955 to the case. Here the administrative highest had ever I earned. were judge found in favor the claimant. equate record am unable to substantially However, all of the evi- gain represents what in terms of dence affidavit or similar form employment assembly line ful on an interpretation and the and inferences engage any “inability substan given be to it and drawn from it were gainful activity by reason of tial before the Council. The courts medically physical . . determinable should not redetermine the facts de impairment,” the definition which is Myers novo. Richardson, disability. 423(d). 42 U.S.C. inquiry Our is to attempts explain Secretary’s determine whether findings ability working by stating supported fact are to continue sub- stantial helped evidence. Even if she was co-workers. that court opinion should be of indicated, She documenta- prevailing dates here. I started March into a should transmuted claim. and on January 10, they Likewise, go.” relatively let me the fact the claim is compared litigation costs, being ordinarily small While $484.85 would be more private litigants probably case than she would have earned in the first ten making settle, is no basis for bad law. days year, calendar of a the record is silent pay as to matters severance and ac- as to the testified Western compensation. employment: crued “I have exact vacation Electric
H03 by us, reinterpreted ry evidence can de- fails to
here the evidence met the
termination that the claimant requirement prior to 1951. sum, presented with a court is this great ap- story, pathetic one which has understanding, compassionate
peal insig- relatively one involves money today’s infla- sums of nificant
tionary court is context. But this requires
presented with a case of law.
application rules of established happily, consider- than I do so
While ing less hapless this circumstances compelled to
dividual, feel I nevertheless the rule down on the side come least, very court should At the
law. receipt than remand for do less testimony expert as to whether to 1951 was disabled demonstrat- far has
which thus extent that it in the record to the
ed
quires and direct this court to reverse plaintiff. entry judgment for the America,
UNITED STATES Plaintiff-Appellee, ANDRINO,
Robert James Defendant- Appellant.
No. 72-2141. Appeals,
United States Court of
Ninth Circuit.
May 8, 1974.
Rehearing Denied June