Margaret L. Nichols v. Joseph A. Califano, Secretary of the Department of Health, Education, and Welfare

Appellant Margaret Nichols brought suit in the district court to overturn a determination of the Secretary of Health, Education, and Welfare that she is not entitled to disability benefits under 42 U.S.C. §§ 416 (i) and 423. The district court entered summary judgment in favor of the Secretary. We reverse.

Nichols, a 53-year old woman, suffers from urinary incontinence. She is also diabetic. Since 1968 she has undergone two major operations to correct her problem, but neither was successful. The period of her disability allegedly began on June 20, 1973. Nichols applied for disability benefits on September 5, 1973.

All concede that Nichols’ present physical condition renders her unable to engage in gainful employment. The administrative agency nevertheless ruled that, under 20 C.F.R. § 404.1507 (1976), 1 her willful failure to submit to still a third operation precludes a finding that she was disabled. On appeal, Nichols contends that her refusal of yet another surgical intervention was supported by justifiable cause and was therefore not “willful” within the meaning of section 404.1507.

The administrative record contains the opinions of four doctors. Dr. Murray, Nich *933 ols’…

dissenting:

This case may raise an important issue pertaining to the administration of disability benefits under 42 U.S.C. §§■ 416(i) and 423. It is whether a claimant whose disabling impairment reasonably can be regarded as remediable is entitled to disability benefits notwithstanding a refusal to undergo the remedy. My answer to the question is no. Under such circumstances, the refusal is wilful within the meaning of 20 C.F.R. § 404.1507 (1976).

I am not certain how the majority responds to the issue. Judge Kennedy acknowledges that there exists in this case “substantial evidence to support a finding that Nichols’ condition could be corrected by surgery.” Nonetheless, he then proceeds to find that Nichols had justifiable cause to refuse to undergo the surgery that would have corrected her condition. As a consequence her refusal was not wilful within the meaning of § 404.1507. Justifiable cause turns on factors such as the “physician’s outlook as to the success of the treatment,” the nature of the relationship between the physician and claimant, the nature of the surgery required, the severity of the claimant’s ailment, and the claimant’s age, background, and medical…

556 F.2d 931 Margaret L. NICHOLS, Appellant, v. Joseph A. CALIFANO, Secretary of the Department of Health, Education, and Welfare, Appellee. No. 76-1265. United States Court of Appeals, Ninth Circuit. June 8, 1977. Allan S. Ghitterman, Ghitterman, Schweitzer & Herreras, Ventura, Cal., submitted brief for appellant. William D. Keller, U. S. Atty., Los Angeles, Cal., submitted brief for appellee. Appeal from the United States District Court for the Central District of California. Before HUFSTEDLER, SNEED and KENNEDY, Circuit Judges. KENNEDY, Circuit Judge: 1 Appellant Margaret Nichols brought suit in the district court to overturn a determination of the Secretary of Health, Education, and Welfare that she is not entitled to disability benefits under 42 U.S.C. §§ 416 (i) and 423. The district court entered summary judgment in favor of the Secretary. We reverse. 2 Nichols, a 53-year old woman, suffers from urinary incontinence. She is also diabetic. Since 1968 she has undergone two major operations to correct her problem, but neither was successful. The period of her disability allegedly began on June 20, 1973. Nichols applied for disability benefits on September 5,…