Before BIGGS, Chief Judge, and McLAUGHLIN and KALODNER, Circuit Judges.
The plaintiff, Mrs. Julia Carr, the mother of John M. Braun, filed a complaint pursuant to subchapter II of the Social Security Act as amended, Section 205(g), 42 U.S.C.A. § 405(g), to review a denial by the Secretary of Health, Education and Welfare of a claim of John M. Braun, for "childhood disability benefits" under Section 202(d) of the Act, 42 U.S.C.A. § 402(d).*fn1 An answer was filed by the Secretary denying liability. Cross motions for summary judgment predicated on the pleadings and on a certified transcript of the administrative record were filed and the court below granted the Secretary's motion.*fn2 The appeal at bar followed.
The application originally filed for Braun by his mother for disability benefits was rejected by the Bureau of Old-Age and Insurance of the Social Security Administration and a hearing was requested before a Referee. This was granted.
The following appears from the transcript of the administrative record and exhibits admitted by the Referee. Braun was born in 1935. At the age of eleven he was seriously injured as a result of a collision between two automobiles. He was seated on the curb and one of the colliding cars rolled over him, fracturing his skull. Up to this time he had had no difficulties of any kind and had been an honor student at school. After treatment for this injury at a local hospital he was admitted to Temple University Hospital because of severe personality changes, aphasia, and paralysis of the right arm, leg and face. His personality disturbance was marked by apprehension and constant crying. The hemiplegia involved his right arm, face and leg, and the motor aphasia affected his speech. He could not use the right words. After exploratory trephines, a large subdural hematoma was found on the left side of his skull. This was removed by surgery. Some improvement in his condition followed. There was some recession of his hemiplegia and aphasia, but he continued to present a serious personality problem. At thirteen years of age further medical examination showed that the hemiplegia seemed to be clearing up but that Braun continued to suffer from headaches and dizziness. There was a prognosis that he might become entirely free of this discomfort. Psychological testing showed that he was functioning at that time at about the ten-year old level. Dr. J. B. Spradley, a qualified neurologist, head of the New Jersey State Hospital at Trenton until his retirement to private practice, as the result of an examination made in September, 1948, reported: "The prognosis from a physical standpoint is good; but the prognosis so far as his personality changes is concerned is guarded. * * * This boy should be removed from the class in school where he is now required to meet a certain scholastic standard as he is not mentally capable of improving himself by the training and class work to which he is exposed. He should be placed in a special class in school and emphasis put on craft work. If this is done he can eventually become proficient in some trade and become a self-supporting individual and adjust himself to the community."
Dr. Spradley examined Braun again on November 30, 1957, shortly after Braun's application was filed with the Bureau of Old-Age and Survivors Insurance of the Social Security Administration, and this report is also in evidence. He stated that at the time of his earlier examination of Braun, he had "recognized that there was an intellectual defect caused by the trauma, that he would not be able to progress normally in school, and gave the opinion that personality changes might develop. I suggested that the parents give consideration to placing him in an institution for special training.
"At the time of my re-examination I found that he continues to have headaches 3 or 4 times a week which he attempts to control with 9 to 10 Anacin tablets per day. During the period of headaches he is very irritable. He displays many marked psychopathic trends and there is an appreciable degree of mental deficiency. * * *
"This young man is suffering from traumatic encephalopathy*fn3 characterized by changes of personality and intellectual deficiency. This is complicated by the neurological defects recorded. From an industrial standpoint he should be considered as practically totally incapacitated, since the physical and mental sequelae of the injury will make it difficult for him to obtain work or to meet the minimum requirements of a job. The condition is progressive and I recommended to the mother that he be placed in the State Hospital but she feels that she can supervise him at home at least for the present."
Dr. Bernard A. Hirschfield, at the request of the Referee or the Bureau gave Braun a psychiatric examination on August 19, 1958. Dr. Hirschfield's report also is part of the record. After reciting Braun's disabilities largely in terms of behavioral problems, Dr. Hirschfield made the following "Comment": "This is an angry young man whose hostile and generally difficult behavior may be the result of personality changes attendant upon the head injury of the patient. Of course, this type of hostile reaction is common enough in individuals who have no evidence or history of brain injury; in this case, however, I feel that it is necessary to give the patient the benefit of the doubt.
"The question of his employability is difficult to answer. Given the right kind of employer, that is, one whom the patient might respect and who is understanding, kind and yet firm, it is possible that this patient might be able to perform gainful work. It is admitted, however, that such fortunate circumstances would be hard to obtain; so, that for all practical purposes, this young man might be regarded as unemployable.
"For the purpose of classification, this case may be labeled post-traumatic personality disorder."
There is also included in the record by the Referee exhibits showing Braun's various employments. These were generally of a temporary nature though he had a job as a truck driver with the Trenton Times for approximately 18 months before he was dismissed. He worked for the Wellington Print Works, Inc. for 6 months at a wage of $50 a week. He had a position with Acme Rubber Company for about 3 months. Most of his jobs were of short duration. He was in the Naval Reserve for a year and a half but was given a medical discharge after two weeks at boot camp. The scars of the trephining are apparent on his head and there are obvious depressed places on his skull.
Both Braun and his mother testified before the Referee. Mrs. Carr, widowed by the death of the claimant's father, had remarried, and stated there was real friction in the home particularly between Braun and his stepfather. It was obvious, as the Referee found, that Braun presented and presents a serious case of disturbed personality, that he is sullen, morose, irritable, particularly when his headaches are upon him, uncooperative with his employers, and altogether a "difficult" individual. He apparently ceased to attend school, having incurred difficulties there, when he passed the 9th grade. On the other hand it would seem that he is not generally disoriented but that he possesses many psychopathic traits, as the Referee indicated in his opinion. Both Braun and his mother testified that he had been without gainful employment for about two years despite his efforts to get a job, and that the aid of the New Jersey State Rehabilitation Commission had been invoked to procure employment for him without success.
The Referee carefully reviewed the evidence and concluded that Braun had failed to prove that he was unable to engage "in any substantial gainful activity including not only his previous occupation but any other occupation in which he might be employable considering the circumstances of his education, age, work experience, and physical and mental capacities; and that, in determining whether the impairment claimed is of the required degree of severity, consideration must be given * * * to reasonable medical or surgical treatments * * *" which might alleviate his condition. The Referee relied in large part on Braun's prior record of temporary employment. He also stated: "But apart from the problem of causation, the ultimate problem is claimant's resentful and hostile personality, which obviously makes all social relationships, including any work relationships extremely difficult. The difficulty is by no means insuperable, as his employment record demonstrates. He has as a matter of fact kept one job for over a period of a year.", and, "And to commit him now to ...