Capaldi v. Weinberger, Civ. A. No. 73-2325.

• Decision Date: 24 February 1975
• Docket Number: Civ. A. No. 73-2325.
• Citation: 391 F. Supp. 502
• Parties: Kathleen CAPALDI v. Caspar WEINBERGER, Secretary of Health, Education and Welfare.
• Court: U.S. District Court — Eastern District of Pennsylvania

391 F. Supp. 502

Kathleen CAPALDI v. Caspar WEINBERGER, Secretary of Health, Education and Welfare.

Civ. A. No. 73-2325.

United States District Court, E. D. Pennsylvania.

February 24, 1975.

Paul L. McSorley, Philadelphia, Pa., for plaintiff.

Robert E. J. Curran, U. S. Atty., Paul E. Holl, Asst. U. S. Atty., Philadelphia, Pa., for defendant.

OPINION AND ORDER

BECHTLE, District Judge.

This is an action under § 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Secretary of Health, Education and Welfare ("HEW").¹ That decision denied the plaintiff's application for a period of disability and for disability insurance benefits based on the finding that the applicant had failed to establish that she was disabled within the meaning of the Act at any time prior to March 31, 1959, the date when her insured status under the Act expired. The matter is before us on the Secretary's motion for summary judgment for affirmance of the decision and dismissal of the complaint on the ground that there exists no issue concerning any material fact. The only question before the Court is whether the Secretary's final decision is supported by substantial evidence and is in accordance with applicable law and regulations.

Plaintiff was born on November 25, 1938. After completing eleven years of schooling, she held three jobs during her short working career. The first was as a secretary-receptionist from February of 1955 to May of 1957; the second was as a keypunch operator from May of 1957 to August of 1957; and, the third was also as a keypunch operator from August 12, 1957, until December 20, 1957. The basis for the termination of her last employment was given as "absence caused by illness due to pregnancy." She has not returned to work since then. She married on October 26, 1957, and has three children who were born, respectively, in May, 1958; May, 1963; and April, 1965. She filed her application for disability benefits on April 19, 1971, based on her own wage record, stating that she became unable to work in January of 1958, when she was age 19. Her explanation for the 13-year period between the claimed time of disability and the filing of the application was, in addition to the fact that she did not know she had the right to file an application for disability benefits under the Social Security Act, that she had felt she would be able to resume work until her doctor told her she was completely unable to work.

There is no dispute that she met the special insured status or earnings requirement of the Act and that such status expired on March 31, 1959. A condition of qualifying for benefits is that the applicant must establish that he or she became disabled within the meaning of the Act at a time beginning prior to the expiration of the insured status period. The burden is not on the Secretary to make an initial showing of nondisability.² Dr. Norman Learner, a specialist in internal medicine since 1941 and clinical professor of medicine at Temple University School of Medicine, was called by the Secretary to testify as an expert medical witness. He is referred to in the record as a medical adviser to the Secretary and as an "impartial" medical expert. He had not examined nor treated the plaintiff and had not seen her prior to the de novo hearing before the administrative law judge on October 18, 1972. He testified, among other things, after reviewing exhibits numbered 9 through 35 and listening to plaintiff's testimony, that she could not have been gainfully employed after January 17, 1964, the first time she visited Dr. Edgar C. Smith, because of her physical impairments. A medical condition having its beginning during the covered period, but which may have become disabling after the earnings requirement is last met, may not serve as a basis for qualifying under the disability provisions of the Act.³ The critical period in which plaintiff must have shown that she was disabled is the time before April 1, 1959, the day after her insured status ended.

In her application, she claimed that partial stomach removal, cervical cancer, deafness in one ear, chronic kidney disease and recurring surgery prevented her from working, and that she became unable to work beginning in January of 1958 because of her disability. She testified that she had been under the care of numerous physicians and that pain and weakness had limited her activities. The Secretary found that the medical evidence of record does not establish that plaintiff's physical impairments were of such severity as to have prevented her from being substantially gainfully employed on or before March 31, 1959. We hold that the Secretary's findings are not supported by substantial evidence; and his motion for summary judgment must, therefore, be denied.

The stomach operation for the removal of a pre-pyloric ulcer occurred in April of 1970. The medical evidence did not show that she had excessive weight loss, malnutrition, or serious stomach disorder before March 31, 1959. This condition may not serve as a basis for finding disability in the critical period. However, the record does show the presence of ear and urinary tract disorders on or before March 31, 1959, and thereafter.

Plaintiff testified at the de novo hearing that she had middle ear trouble since early childhood and that she went to the Children's Hospital of Philadelphia about every other day for about eight years and that a mastoidectomy was performed there upon her right ear back in 1945. Although the hospital records as to her visits and treatment were unavailable, they did show she had been a patient at the Children's Hospital starting in 1944. Transcript p. 169, Ex. 32 Regarding her vertigo, she stated that she was not astonished by the symptom itself because she had it "all my life" and that she would have dizzy spells every two weeks or once a month, that she would faint without warning, that the spells would last for several seconds, and that they would cause her to fall if she were standing at the time. She also stated that the reason for her three employment dismissals was because of her dizzy spells. She told the administrative law judge that her hearing was practically gone in her right ear and very little remained in the left and that she was aided in conversation by lip reading. She also added that since 1945 her right ear had been operated upon at least four more times in an effort to stop the drainage and remove the cause of the vertigo symptom.

Reports, in letter form, from some of her treating doctors corroborated her testimony regarding her ear trouble. A report of an ear doctor Nicholas F. Hoffman, Transcript p. 179, Ex. 36 dated November 29, 1972, revealed that she had office visits in 1955, 1957 and for the last time in 1961; that during the 1957 visit her main complaint was dizziness of two months duration, and that since she had a middle ear disease the symptom of vertigo could not be considered unusual or highly significant.⁴ Another ear doctor Felice J. Santore, Transcript p. 170, Ex. 33 wrote that in 1964 a tympano-mastoidectomy was performed upon her for otitis media and conductive deafness, and that she complained of vertigo. Another more detailed report of three medical associates Emil P. Liebman, Bernard J. Ronis and Max Lee Ronis, Transcript p. 168, Ex. 31, who are ear, nose and throat specialists, discloses that she had undergone a mastoidectomy in 1945, that after another operation was performed around 1964 in an attempt to improve her hearing the ear began to drain, and that sometime later a radical mastoidectomy was done, but the ear continued to drain. An audiometric evaluation was done at the initial visit, and a maximum conductive hearing loss was noted on the right, and a severe conductive loss noted on the left ear. She complained of intermittent unsteadiness and dizziness which is not uncommonly seen in a patient with chronic ear infections; and because of inadequate drainage, a revision of the right radical mastoidectomy was carried out in February of 1971. The report concluded as follows:

"She does have a considerable conductive hearing loss bilaterally, and according to her history, which certainly appears to be substantiated by her physical examination, she has had a hearing loss for many years, and drainage from the ear for many years. It would certainly be our opinion that it would be most difficult for

...