Dunbar v. Califano, Civ-77-69.

• Decision Date: 12 July 1978
• Docket Number: No. Civ-77-69.,Civ-77-69.
• Citation: 454 F. Supp. 1261
• Parties: Jack D. DUNBAR, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfare, Defendant.
• Court: U.S. District Court — Western District of New York

454 F. Supp. 1261

Jack D. DUNBAR, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfare, Defendant.

No. Civ-77-69.

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

July 12, 1978.

COPYRIGHT MATERIAL OMITTED

Legal Counseling for the Elderly Project, Legal Aid Bureau of Buffalo, Inc. (Olney H. Clowe, Buffalo, N. Y., of counsel), for plaintiff.

Richard J. Arcara, U. S. Atty., Buffalo, N. Y. (Theodore J. Burns, Asst. U. S. Atty., Buffalo, N. Y., of counsel), for the Government.

CURTIN, Chief Judge.

This is an action brought under 42 U.S.C. § 405(g) to review a final determination of the Secretary of Health, Education and Welfare, denying the plaintiff's application for social security disability benefits. The case is before the court on the defendant's motion for summary judgment.

On December 9, 1971, the plaintiff filed an application for social security disability benefits. On April 13, 1972, he received a notice from the agency that his application had been denied. In a notice of reconsideration dated July 1, 1974, the initial denial of the claim was affirmed. On April 29, 1975, an administrative hearing was held before an Administrative Law Judge ALJ, who again denied the plaintiff's claim for benefits. This decision became the final decision of the agency when it was affirmed by the Appeals Council in all respects in a letter dated October 22, 1976.

The procedural history of this case reveals over six years of persistent and painstaking efforts on the part of Mr. Dunbar to establish his claim for benefits. At all stages, his efforts have been met with delays, misunderstandings, and a general lack of sensitivity by the Social Security Administration SSA to the realities of his individual case. His extreme frustration and disillusionment are both understandable and justified.

Mr. Dunbar claims that he became unable to work in 1970 because of severe pain caused by an arthritic condition. Because the ALJ's determination was based on his credibility, his unusually successful work history is worth recounting in some detail.

Mr. Dunbar was born in 1916, and received a Bachelor's degree in engineering. He has worked extensively in various management and technical capacities since 1933, including the space sciences, and has completed approximately twenty in-service special courses in management and technology. At the time he was forced to leave his job in 1970, he served as Principal Scientist at Bell Aerospace in Niagara Falls, with an annual income in excess of $20,000. His professional background demonstrates that he is a highly motivated and competent individual, who has held positions of great responsibility. He worked as a metallurgical assistant from 1933 to 1938, a metallurgist and management trainee from 1938 to 1942. In 1942, he moved to Washington, D. C. to work in the Pentagon on weapons development. He worked there for ten years in the Office of Chief of Ordnance, beginning as a metallurgist, and succeeding to the positions of assistant chief engineer, chief of the engineering and inspection section, and civilian chief. From 1952 to 1957, Mr. Dunbar established and managed his own consultant business, Industrial Materials and Methods-Management Consultant. During this same time, from 1954 to 1956, he also worked as an associate director of research and development with Alloy Engineering and Steel Casting. Mr. Dunbar then took a job with General Electric, managing various laboratories and departments in the areas of nuclear power and space sciences. In 1963, he transferred to Bell Aerospace, where he established several new laboratories and directed the manufacturing engineering department.

When his physical condition began deteriorating in 1968, Bell permitted Mr. Dunbar to set up a traction device at work for use during the day, allowed him to schedule his own hours, and made other efforts to accommodate his increasingly debilitating condition. By March, 1970, his condition had become so poor that continued work was impossible. He had regularly recurring attacks of acute pain, during which time he would be confined to traction for as much as a week at a time. During the attacks, normal activity such as walking and elementary personal hygiene became virtually impossible.

Finally, on March 26, 1970, a cervical laminectomy was performed on Mr. Dunbar to correct degenerative disc disease. Although it was hoped that the surgery would result in some permanent improvement, it did not eliminate his pain. He continues to suffer constant low-level pain in every joint, with periodic attacks of great severity.

At the hearing, the plaintiff, his wife, and a vocational expert testified. Numerous medical reports were submitted into the record. Since the evidence in this case is voluminous and was well summarized in the AJL's decision, it will only be briefly summarized at this time.

Mr. Dunbar's March 1970 operation involved a surgical fusion of two joints in his spine. His attending physician during this hospitalization, Dr. A. Slepian, a neurosurgeon, reports that the surgery was a medical success because the disc disease was eliminated. However, the plaintiff claims that the disc operation did not eliminate his pain, and that his disabling condition is not limited to disc disease but consists of a more general arthritic condition.

The plaintiff submitted numerous medical reports from his regular physician, Dr. Taylor. He states that the plaintiff has had little benefit from his surgery and should be considered to be 100% disabled.

The record contains various other medical reports and statements from both examining and nonexamining physicians. In short, these reports indicate that the plaintiff has had a long history of varied musculoskeletal discomfort which particularly involved his neck, low back, left knee, and upper extremities. Although the physicians disagree as to the extent of the plaintiff's physical impairment, they all agree that at least some impairment exists which could partially explain the pain. None, however, are as favorable to the plaintiff as Dr. Taylor.

The plaintiff testified that he suffers constant, low-level arthritic pain in every joint with periodic severity. He stated that it is constant in his lower back, neck, left elbow, and left hip. It affects his other joints periodically. He testified that he takes twenty-five to forty pills a day depending on whether his condition is good or acute. On some days, his lower back pain immobilizes him. On better days, he can walk, but only with a limp. He needs two hands to raise a cup of coffee and to comb his hair because his hands tremble at all times. He can drive, but only for short periods of time.

This testimony was substantiated by Mr. Dunbar's wife. The only other witness at the hearing, the vocational expert, testified that the plaintiff could not be employed in any position if his allegations of pain and of functional restrictions were accepted as true.

The plaintiff's efforts to continue working after his operation, followed by his protracted efforts to establish disability, are worthy of note. The plaintiff testified while he was recovering from the cervical surgery performed in 1970, he was still hopeful of returning to work. Because he had five children and a wife to support and large medical bills, he withdrew his entire pension fund. He also applied for and received unemployment insurance benefits. In anticipation of being able to work, in July of 1970 Mr. Dunbar filed numerous job applications and distributed his personal resumes to approximately 125 different employers. At that time, Dr. Slepian reported that he had fully recovered from the surgery and could return to work. Although Mr. Dunbar had several interviews, he was unable to secure a position in his field.

In April of 1971, the plaintiff's unemployment benefits ran out. Since his liquid assets had also been exhausted, he became eligible for and began receiving public assistance benefits. In July of 1971, Mr. Dunbar registered with the New York State Office of Vocational Rehabilitation. In conjunction with the office, he devised an educational plan that it was hoped would enable him to become a part-time teacher at Buffalo State College. However, in November of 1971, the Office withdrew its assistance because it determined that his physical condition was too poor to permit the plan to be carried out and that he had no rehabilitative potential.

In the meantime, in October 1971, the New York State Bureau of Disability Determinations classified the plaintiff as permanently disabled. As a result, his public assistance was converted from the home relief category to the Aid to the Disabled category.

In December 1971, the Equitable Life Insurance Society certified Mr. Dunbar as disabled for the purpose of private insurance benefit entitlement, and set an onset date of March 13, 1970. At this time, the plaintiff accepted the fact that he was permanently disabled, and applied for social security disability benefits upon recommendation of the Office of Vocational Rehabilitation.

The plaintiff's application was denied in May of 1972 based on Dr. Slepian's report of a normal post-operative recovery. At that time, the SSA assumed that the plaintiff's claim of disability was based solely on the condition which had been treated surgically.

In January of 1974, the Aid to the Disabled program was supplanted by the Supplemental Security Income program SSI, administered in New York by the federal government. The plaintiff, since he had been receiving benefits under the old disability program administered by the state, was automatically placed on SSI.

In February of 1974, the plaintiff requested reconsideration of the original determination by SSA of non-disability and simultaneously filed a second application. On June 8, 1974, the New York State Bureau of Disability Determination, which makes recommendations to SSA on applications for...