Deyo v. Weinberger, 73 Civil 1993.

• Decision Date: 15 December 1975
• Docket Number: No. 73 Civil 1993.,73 Civil 1993.
• Citation: 406 F. Supp. 968
• Parties: Arnold E. DEYO, Jr., Plaintiff, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Southern District of New York

406 F. Supp. 968

Arnold E. DEYO, Jr., Plaintiff, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant.

No. 73 Civil 1993.

United States District Court, S. D. New York.

December 15, 1975.

Mark D. Fox, Goshen, for plaintiff.

Paul J. Curran, U. S. Atty., New York City, for the United States; Christopher Roosevelt, Walter S. Mack, Jr., Asst. U. S. Attys., Borge Varmer, Regional Atty. II, Diana M. Weiner, Asst. Regional Atty., Office of the General Counsel, Dept. of H. E. W., of counsel.

OPINION

EDWARD WEINFELD, District Judge.

Plaintiff commenced this action pursuant to section 205(g) of the Social Security Act¹ for judicial review of a final decision of the Secretary of Health, Education and Welfare (hereafter "Secretary") denying plaintiff's application for disability insurance benefits.² The parties have made cross-motions for summary judgment. The sole issue is whether the Secretary's determination that plaintiff was not "disabled" within the meaning of the Act³ is supported by substantial evidence based upon a consideration of the record as a whole.⁴ After a word-by-word reading and "searching investigation"⁵ of the entire record and a close analysis of the report of the Magistrate to whom the matter was referred⁶ and who recommended reversal of the Secretary's determination, the court is persuaded that the Secretary's determination must be upheld.

The plaintiff, Arnold Deyo, is 59 years of age and of limited education. Until 1968 he was self-employed as a junk dealer, but, he claims, he then became unable to continue in business because of his ill health. Specifically he alleges a disability arising out of a progressively worsening knee condition and an arthritic condition affecting his lower back. He receives total disability payments from the Veterans Administration,⁷ and has been hospitalized twelve times in a VA hospital since he first applied for Social Security disability benefits in 1964.⁸

Plaintiff's claim has received extensive consideration by the administrative agency. In August 1971 a hearing examiner affirmed a prior determination that he was not entitled to disability benefits under the Act.⁹ Upon review, the Appeals Council held, contrary to the hearing examiner's finding, that plaintiff may be precluded from his usual heavy work activity and remanded the case to obtain additional evidence and the testimony of a vocational expert as to the type and existence of work activity, if any, for which the plaintiff is qualified. Upon remand, and before another hearing examiner, additional testimony was received from plaintiff, as well as from a vocational expert. The hearing examiner, among other findings, found that in view of plaintiff's age he could not have engaged in substantial gainful activity in his prior work as an auto wrecker and junkyard worker. However, the hearing examiner further found that plaintiff had transferable skills and that the evidence was insufficient to establish that plaintiff's left knee or other impairment rendered him unable to engage in substantial gainful work, commensurate with his age, education and work experience, which exists in the national economy. The prime issue here centers about that finding.

The hearing examiner, upon a detailed analysis of the extensive Veterans Administration hospital records and medical reports, found that the only impairment severe enough to affect plaintiff's ability to work was the left knee impairment, and that because of the knee's aching and swelling its use for prolonged periods was limited. Apart from that impairment, plaintiff has suffered recurrent hemorrhoids, colitis, gastritis, a respiratory infection and various other transient conditions, some of which were accompanied by an anxiety neurosis. The Social Security Act, however, conditions its benefits not upon general ill health, but upon the existence of a "physical or mental impairment"¹⁰ which must be "of such severity that the claimant is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work."¹¹ Viewed against the applicable law, the record abundantly supports the Secretary's determination. Because of the importance of the objective medical evidence, it is reviewed at some length.

On March 12, 1964, plaintiff entered the VA hospital at Castle Point, New York, complaining of persistent low back pain preventing him from doing heavy lifting. X-rays were taken, revealing slight arthritic changes in the left knee and a spondylitis of the lower spine with small anterior osteophytes. Plaintiff was diagnosed as suffering from a sacroiliac sprain, which improved with treatment, and an internal derangement of the left knee resulting from service-related injuries suffered during World War II, which was left untreated. These diagnoses were reaffirmed after an examination of plaintiff conducted on April 10, 1964, on behalf of the New York State Department of Social Welfare. Plaintiff was at that time certified as "able to do light manual work."

Plaintiff was next examined by Dr. Penelope Sherwood, an orthopedic specialist, in September 1964, following his initial application for Social Security disability benefits. Although Dr. Sherwood found degenerative arthritis of the spine and post-traumatic arthritis of the left knee, she noted that the range of motion of plaintiff's spine was not limited, and she found no restriction on plaintiff's ability to walk, stand, bend, or lift. X-rays taken at that time again verified plaintiff's left knee injury, but failed to reveal "any significant bone or joint changes" in the lumbar spine.

In May and June of 1966 plaintiff was again hospitalized for low back pain. Although he complained of pain that was at times quite severe, the hospital records state that the physical examination "was essentially negative." X-rays of the lumbar spine were consistent with those taken earlier and revealed only "very slight productive changes." Plaintiff received physiotherapy and responded with marked improvement. He was readmitted on September 13, 1967, complaining of pain in both knees, and a diagnosis of osteoarthritis of the lumbar spine and of both knee joints was entered. The examining physician also noted that plaintiff had formed an anxiety reaction in response to his condition, and prescribed tranquilizers and muscle relaxers. Plaintiff's symptomology improved, and he was discharged on September 25th.

In February 1968 plaintiff was hospitalized and treated for a rectal polyp after complaining of epigastric pain. Osteoarthritic symptoms were again noted but not treated. Plaintiff returned to the hospital on February 29, 1968, one day after his previous discharge, complaining of epigastric pain, weakness and diarrhea. Although an upper respiratory infection was diagnosed and treated, the hospital record noted that plaintiff's physical examination was "unremarkable." He was referred to a psychiatrist, who thought plaintiff to represent "a case of psychoneurosis, anxiety state with some depression." Plaintiff was reassured and it was noted that "he felt less nervous on discharge."

Following plaintiff's second application for disability benefits (the application before the court in this case) he was seen by a general practitioner, Dr. S. Schleiermacher, on May 24, 1969. Dr. Schleiermacher diagnosed plaintiff as suffering from arthritis of the spine, with curvature, and muscle spasms in the arms and legs. There was no indication that Dr. Schleiermacher performed any special studies or that he ordered x-rays or laboratory reports, and in a letter to the Social Security Administration the doctor stated that "in my opinion, plaintiff should be examined by your doctor in Middletown." At the request of the Secretary, plaintiff was then examined on August 15, 1969, by Dr. M. Altchek, a specialist in orthopedic surgery and a member of the American Board of Orthopaedic Surgery and the American Academy of Orthopaedic Surgeons. Dr. Altchek found that plaintiff could move his back through a full range of motion without spasm and that he could toe and heel walk well, although he could not do so without complaining of pain. Plaintiff's muscles were found to be "in excellent shape," and straight leg raising tests were completely negative both sitting and lying. Plaintiff could operate all the joints of his arms and legs through a full range of motion, and there was no evidence of swelling or deformation in any joints other than the left knee. Dr. Altchek concluded that "despite plaintiff's complaints, there is no evidence of any arthritis in the fingers, the toes, the joints of the feet, or the ankles." X-rays revealed no significant changes from five years earlier — they showed "some mild osteoarthritic lipping throughout," but the doctor concluded that the amount was "about average" for plaintiff's stated age, and "possibly a little less." Although evidence of osteoarthritic changes in the left knee was found, there was no evidence of other arthritic changes "of any significance." Dr. Altchek concluded: "In any event, I believe the left knee would cause some aching on hard use and might swell up now and then. In my opinion the patient should be able to perform activities of weightbearing, walking, bending, stooping, standing, lifting, and grasping within normal limits for a man of his age group except that he might have some aching and swelling in the left knee after prolonged periods of use. It is not sufficient to prevent him from doing any of these activities to a normal extent. . . . Outside of this left knee, I cannot find any evidence of organic impairment beyond that of an average male of his stated age...