Powell v. Richardson, Civ. A. No. 71-2861.

• Decision Date: 13 February 1973
• Docket Number: Civ. A. No. 71-2861.
• Citation: 355 F. Supp. 359
• Parties: Anna F. POWELL v. Elliot RICHARDSON, Secretary of Health, Education and Welfare.
• Court: U.S. District Court — Eastern District of Pennsylvania

355 F. Supp. 359

Anna F. POWELL v. Elliot RICHARDSON, Secretary of Health, Education and Welfare.

Civ. A. No. 71-2861.

United States District Court, E. D. Pennsylvania.

February 13, 1973.

Bruce E. Endy, Community Legal Services, Inc., Philadelphia, Pa., for plaintiff.

Barton A. Hertzbach, Asst. U. S. Atty., Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

CLIFFORD SCOTT GREEN, District Judge.

I.

On April 28, 1969, Anna F. Powell (hereinafter referred to as the plaintiff or claimant) filed an application for disability insurance benefits with the Department of Health, Education and Welfare (hereinafter referred to as the Secretary or defendant) at its branch office in Philadelphia, Pennsylvania. Plaintiff filed her claim pursuant to Title 42, United States Code, Section 423 (Social Security Act), alleging, inter alia, that because of a fracture of her left humerus she was unable to work since October 5, 1967. Her claim was approved and she was granted disability insurance benefits through April of 1970, when her benefits were terminated. Thereafter, the claimant requested and was granted a hearing on the merits of her claim; said hearing was held on April 14, 1971. The hearing examiner found that the claimant was not disabled within the meaning of the Act. Plaintiff appealed this decision and on September 28, 1971, the Bureau of Hearings and Appeals, by letter, informed plaintiff that:

"Your request for review of the hearing examiner's decision has been carefully considered by the Appeals Council. The Council's consideration of your request has included all the evidence in your case, . . .. Evidence in addition to that which was before the hearing examiner has been received by the Appeals Council.

"The Appeals Council has concluded that the decision of the Hearing Examiner is correct." (Tr. 4) (Emphasis supplied)

This decision thus became a final decision of the Secretary, and as a result, claimant has requested a review of that decision by this Court pursuant to Title 42, United States Code, Section 405(g).¹ Hodgson v. Celebreeze, 312 F.2d 260 (3rd Cir. 1963).

Presently, before the Court are motions for summary judgment filed by both parties. For reason which shall appear hereinafter, we grant plaintiff's motion, and deny defendant's motion.

II. Standards for Review

Title 42, United States Code, Section 405(g) in relevant part provides that:

"The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ." (Emphasis supplied)

The crucial language of this section and the focus of our review in this case is the determination of whether there is "substantial evidence" to support the decision of the Secretary. If so, that decision must prevail.

Substantial evidence has been defined by the Supreme Court as ". . . more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (citing from Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Similarly, the Court of Appeals for the Third Circuit has defined "substantial evidence" as ". . . evidence which a reasoning mind would accept as sufficient to support a conclusion. `It consists of more than a mere scintilla of evidence but may be less than a preponderance' of the evidence." Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3rd Cir. 1971), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971).

Thus, it is well settled that if there is "substantial evidence" to support the decision of the Secretary, his decision must stand. Weisenfeld v. Richardson, 463 F.2d 670 (3rd Cir. 1972); Ginsburg v. Richardson, supra. However, it is the duty of this Court in reaching a determination to review the entire record as a whole. Gentile v. Finch, 423 F.2d 244 (3rd Cir. 1970).

The claimant has the burden of establishing that she is disabled within the meaning of the Act, 42 U.S.C. § 416(i)(1); Domozik v. Cohen, 413 F.2d 5 (3rd Cir. 1969); Lewis v. Gardner, 396 F.2d 436 (6th Cir. 1968). In order to establish her claim of disability, the claimant must show (1) the extent of her mental or physical impairment, and (2) that the extent of her mental or physical impairment results in her inability to engage in "any substantial gainful activity". Janek v. Celebreeze, 336 F.2d 828, 833 (3rd Cir. 1964).

Utilizing the aforementioned legal standards, we now proceed to an examination of the entire record in this case.

III. Medical Evidence

Presently, claimant is a forty-seven year old female residing with her daughter and six (6) children; her formal education terminated at grade seven (7). (TR. 29). For fourteen years prior to 1964, plaintiff worked as a short-order cook at Metropolitan Hospital in Philadelphia. It is undisputed that she can no longer engage in that occupation. It is also uncontroverted that at various times before 1964, plaintiff worked as a domestic, and cigar wrapper on occasions. Plaintiff has done "no other type of work". (TR. 31).

Sometime in 1964, plaintiff resigned her job as a short-order cook to reside with her daughter and help care for her four children. Some two years later on October 5, 1967, plaintiff accidentally fell through a porch railing and fractured her left humerus. On the basis of this physical injury, plaintiff requested and was granted disability insurance benefits.

On February 25, 1970, Dr. Resnick, a consultant orthopedic surgeon for the department, reported that "She the plaintiff still has pain in the region of the left shoulder. The patient complains of generalized tenderness and pain on all ranges of motion of the left shoulder. Tenderness is present on palpation, generally about the shoulder and the entire upper arm." However, on the basis of an x-ray examination, he concluded that "the fracture of the humerus has healed solidly and is in good position." * * * "I estimate the permanent partial physical impairment associated with the healed fracture and the residual limitation of shoulder motion to be equivalent to 10% of the upper extremity or 6% total." (TR. 98, 99). In addition Dr. Corn, an orthopedic surgeon, had reported on January 30, 1970, that the fracture had "healed completely." Relying on these reports the hearing examiner concluded that the basis for claimant's original disability (i. e., fracture of her left humerus) had ceased to exist as a grounds for disability insurance as of "February 1970". Accordingly, her disability insurance benefits were terminated as of April 1970.

On August 27, 1970, asserting anew her right to disability insurance, plaintiff was interviewed at the District office of the Social Security Board; the interviewer observed and reported, inter alia:

"II. Progression of Condition "she had to be taken to emergency ward 8/24/70 because she could not walk at all—arthritis." (TR. 76). "III. Effects of Current Condition "she has developed arthritis in her right leg. She gets sharp pains in her knee cap and the leg stiffens up." (TR. 76). "VII. Observations "This was a very obese woman with many scars on her left shoulder. She could hardly stand up because her leg stiffened. She limped away from the desk. She was brought to the BO by her daughter." (TR. 78). (Emphasis added).

Three days later on August 30, 1970, plaintiff was admitted to Pennsylvania Hospital where her condition was diagnosed as Degenerative Arthritis of the right knee, and possible Thrombophlebitis of the right leg. The treatment prescribed was "bed rest with leg elevation and warm soaks." (TR. 102, 123). Because plaintiff continued to have knee pain when walking, x-rays were taken in an effort to learn the etiology of this pain. It was found that there was degeneration of the lateral meniscus and possible fluid accumulation in the area of the right knee. At this point, the knee was aspirated, the pain subsided, and the knee generally improved. Plaintiff was discharged on September 21, 1970.

On October 21, 1970, plaintiff was readmitted to Pennsylvania Hospital because the pain in her right knee persisted. On October 23, 1970, an "Arthrotomy of the right knee and excision of lateral meniscus of right knee" was performed by Drs. Rothman and Saul. (TR. 138). Thereafter, plaintiff was discharged on November 24, 1970, by Dr. James P. Marvel who reported that "There is no effusion of the right knee and the patient is able to flex to 90 degrees with full extension against gravity." (TR. 139).

At the time of discharge, Dr. Marvel also recommended "progressive resistive exercises, continue with cane support." and that plaintiff "return in three weeks". (TR. 139). In accordance with Dr. Marvel's direction, plaintiff returned on December 15, 1970, for a physical examination of the knee and medical treatment, and Dr. Marvel noted:

"There is some continued synovial thickening of the right knee, and the patient relates that she fell at home on this knee last week. . . . There was tenderness over the thickened synovium and over the patella.

"Betamethasone was injected into the right knee, and the patient was advised again in a program of progressive resistive exercises. Feel that she should continue cane support." (TR. 140) (emphasis supplied).

Again, on January 12, 1971, Dr. Marvel in his progress notes, after a visit by plaintiff, reported:

"Is experiencing some discomfort in the right knee which appears to be on a degenerative joint disease basis. Received considerable relief from the previous steroid injection in this knee and the knee was again injected with Betamethasone." (emphasis supplied).

On the basis of the foregoing medical evidence, the examiner found that "the claimant's other impairment-residuals of the right knee, meniscectomy and arthritis, possible mild cardiomegaly and thrombosis of the right leg have not been established as disabling." (TR. 20). This...