Ber v. Celebrezze

• Decision Date: 25 May 1964
• Docket Number: Docket 28628.,No. 312,312
• Citation: 332 F.2d 293
• Parties: Shirley A. BER, Plaintiff-Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Appellee.
• Court: U.S. Court of Appeals — Second Circuit

332 F.2d 293 (1964)

Shirley A. BER, Plaintiff-Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Appellee.

No. 312, Docket 28628.

United States Court of Appeals Second Circuit.

Argued February 11, 1964.

Decided May 25, 1964.

Walter & Tepper, Brooklyn, N. Y. (Julian C. Tepper, Brooklyn, N. Y., of counsel), for appellant.

Joseph P. Hoey, U. S. Atty., Eastern District of New York (Leonard J. Theberge, Asst. U. S. Atty., of counsel), for appellee.

Before LUMBARD, Chief Judge, and WATERMAN and FRIENDLY, Circuit Judges.

WATERMAN, Circuit Judge.

This appeal is from the United States District Court for the Eastern District of New York in an action brought pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to challenge a determination by a Hearing Examiner acting for the Secretary of Health, Education and Welfare that appellant is not entitled to disability benefits and a disability freeze under Sections 216 and 223 of the Act, 42 U.S.C. §§ 416, 423. The Examiner's decision became that of the Secretary when the Appeals Council of the Department denied review. This action followed. The court below found, on the pleadings, that there was sufficient evidence to support the administrative result, granted the Secretary's motion for summary judgment and dismissed appellant's complaint. The sole question raised on appeal is whether there is substantial evidence in the record to support the Hearing Examiner's decision that appellant failed to establish that her condition satisfied the statutory test of an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of longcontinued and indefinite duration." Social Security Act, § 223(c) (2), 42 U.S.C. § 423(c) (2). Having examined and studied the administrative record in the case, we answer this question in the negative and reverse the district court and instruct that judgment be entered in favor of appellant.

Appellant, Mrs. Ber, was born in Austria on September 18, 1901, and emigrated to the United States twenty-five years later. She had completed six years of elementary public school in Europe, and, after arriving in this country, supplemented this basic education by attending night high school for three years. Apparently her attendance at night school was primarily for the purpose of learning the English language, and she did not graduate. Mrs. Ber secured full-time employment as a sewing machine operator a week or so after her arrival in this country, and she steadily pursued this occupation and no other for a period of about thirty-five years until March of 1960. She was at that time employed as a sewing machine operator by a lingerie manufacturer in New York City, and, having suffered a slipped disc in the neck, the effects of which were compounded by a nineteen year old arthritic condition which she said had worsened over the preceding two years, she was forced to quit work. Although on two occasions thereafter she attempted to return to her employment she found it impossible to work at her job because of severe pains in her arms, head, and neck, and she has not been back at work since her final attempt to return in August of 1960.

On September 28, 1960, Mrs. Ber filed an application for disability benefits under the Social Security Act, but the Bureau of Old Age and Survivors Insurance, on March 9, 1961, determined that her condition was not disabling within the meaning of the Act. The Bureau, pursuant to a request made on March 14, 1961 by Mrs. Ber, later reconsidered her case and on June 4, 1961 rendered a decision affirming its original determination. Mrs. Ber then requested and was granted a hearing on her application; and in a decision dated March 12, 1962, the Hearing Examiner concluded that Mrs. Ber was not suffering from any physical or mental impairment of such a nature as to entitle her to Social Security disability benefits. On March 12, 1962, the Appeals Council of the Department denied Mrs. Ber's request for review, and thereupon the Hearing Examiner's decision became the official and final decision of the Secretary of Health, Education and Welfare, which in turn was upheld by the court below.

In his decision the Hearing Examiner pointed to no occupation other than that of a sewing machine operator which Mrs. Ber could have been expected to enter into and to engage in satisfactorily, nor did he give any indication that he had even considered the possibility that she might obtain another type of employment. Thus, though the decision is not explicit on this point, it is apparent that the Hearing Examiner did not refuse to grant Mrs. Ber disability benefits on the ground that, although prevented by her condition from continuing to operate a sewing machine for a living, she was able despite her maladies to engage in some alternative occupation. According to the rule which we established in Kerner v. Flemming, 283 F.2d 916 (2 Cir.1960), and which we have reaffirmed on several later occasions, Rinaldi v. Ribicoff, 305 F.2d 548 (2 Cir.1962), Pollak v. Ribicoff, 300 F.2d 674 (2 Cir.1962), such a determination would have had to be accompanied by a specification of types of employment opportunities actually available to Mrs. Ber, for "mere theoretical ability to engage in substantial gainful activity is not enough if no reasonable opportunity for this is available." Kerner v. Flemming, supra, 283 F.2d at 921. See also Stancavage v. Celebrezze, 323 F.2d 373 (3 Cir.1963); Hodgson v. Celebrezze, 312 F.2d 260 (3 Cir.1963). Therefore, as the Government recognizes on this appeal, the Hearing Examiner's decision could only have been based upon a finding that Mrs. Ber's condition was such that she was able to continue to be a sewing machine operator despite her claims that her condition was so extremely painful that she was required to cease that work and was unsuccessful in two attempts to return to it. We have therefore examined the record to determine whether this finding is supported by substantial evidence from the record taken as a whole.

Mrs. Ber testified that she had been suffering from an arthritic condition for about twenty years prior to the time she ceased to work, but that in the last two years that she worked the pain she suffered had considerably increased. It radiated out from her spine to her neck, head, arms, and legs, becoming so severe as to make even the use of eyeglasses most painful and requiring her to wear a cervical collar and a prosthetic corset. Mrs. Ber testified that she had been treated for a number of years for arthritis at a health center maintained by her union, and that she had been hospitalized because of this ailment from May 4 through May 18 of 1960; that her ailment forced her to sleep with a special board placed under her mattress; and that at times she was even compelled to leave her bed to spend the night in a beach chair. At the time of the hearing she was taking eight or ten pills a day, including sleeping pills, but found that these gave her little or no relief, and she was often unable to hold objects in her hands. She further testified that she could not perform her normal household duties, and that her husband had to do the cooking and cleaning and all but the very light shopping. Mrs. Ber's work as a sewing machine operator required her to sit at an electric sewing machine and operate it with her feet while steering material that she lifted from a pile beside her through the sewing mechanism at the top of the machine with her hands. She had to get up and leave her machine periodically, and at times had to carry bundles of cloth over to her machine. As we have already noted, she testified that her intense arthritic pains had forced her to stop working in March of 1960 and had thwarted her in two attempts which she thereafter made to return to her job.

In addition to the testimony of Mrs. Ber there was introduced into the record a considerable amount of medical evidence in the form of the written reports of a number of doctors who had examined Mrs. Ber. It was upon this evidence, which we summarize below, that the Hearing Examiner relied when he rejected Mrs. Ber's claims about the severity of her condition and determined that she was not suffering from a physical or mental impairment so severe as to prevent her from returning to her job. We think that this finding lacks substantial evidentiary support. While the medical evidence may perhaps indicate that Mrs. Ber's physical symptoms were of a type which probably would have caused many people considerably less pain than Mrs. Ber suffered, it nevertheless amply supports her complaint that in her particular medical case these symptoms were accompanied by pain so very real to her and so intense as to disable her.

Dr. Harry Grodzicker, Mrs. Ber's personal physician, prepared on September 29, 1960 and April 5, 1961 two medical reports which were submitted into evidence. In the first report Dr. Grodzicker stated that his patient suffered from pain in her neck which radiated down both arms, and that X-rays of the cervical spine showed marked arthritic changes and a slipped disc. Under the heading "Diagnosis" the report stated "arthritis of cervical spine, slipped disc of cervical region, menopause, chronic bronchitis"; and under the heading "Progress" there was a statement that Mrs. Ber's condition was getting progressively worse, that improvement could be expected only in the indefinite future, and that the patient's activity was restricted in that she could not do work requiring the use of her arms. Dr. Grodzicker concluded this report with the following statement: "Pt. has severe pains in cervical spine radiating to shoulders. Was in hosp. in traction & received many injections by a Neurologist. She is in constant pain and is completely disabled. Has generalized arthritis."

In the second...