Seldomridge v. Celebrezze

• Decision Date: 30 December 1964
• Docket Number: Civ. A. No. 29091.
• Citation: 238 F. Supp. 610
• Parties: John O. SELDOMRIDGE v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare.
• Court: U.S. District Court — Eastern District of Pennsylvania

238 F. Supp. 610

John O. SELDOMRIDGE v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare.

Civ. A. No. 29091.

United States District Court E. D. Pennsylvania.

December 30, 1964.

COPYRIGHT MATERIAL OMITTED

Ira I. Pechter, Philadelphia, Pa., for plaintiff.

Drew J. T. O'Keefe, U. S. Atty., Merna B. Marshall, Asst. U. S. Atty., Philadelphia, Pa., for defendant.

HIGGINBOTHAM, District Judge.

Plaintiff Seldomridge again seeks review of the final decision of the Secretary of Health, Education and Welfare denying his application for the establishment of a disability freeze under § 216(i) of the Social Security Act, 42 U.S.C.A. § 416(i), and for monthly disability benefits under § 223 of the Act, 42 U.S.C.A. § 423.¹ Both plaintiff and defendant have moved for summary judgment.

As Seldomridge v. Ribicoff, 204 F. Supp. 707 (E.D.Pa.1962), this action was first reviewed and thereafter remanded by Judge Luongo, who concluded in accord with the Hearing Examiner's findings, that "the evidence in this case reveals an impairment of long lasting duration * * *." Id. at 711. (Emphasis added.) Having found a lack of substantial evidence "to support the Secretary's ultimate finding that plaintiff is not precluded from engaging in `light work'," Ibid., Judge Luongo remanded the record to the Secretary to adduce more evidence "as to the actual activities in which plaintiff can and cannot engage and as to his employment opportunities." Id., at 711.²

Thus, because of his specific findings of the "noted deficiencies of the record * * * on material points," and by reason of the findings which the Secretary "failed to make," and because the "primary evidentiary facts" were "legally insufficient," the learned District Judge could have then (1) instantly granted plaintiff's motion for summary judgment, or, (2) as he did in a proper exercise of discretion, given the Secretary an additional opportunity to bolster the record in efforts to meet the precise standard of substantiality which the Secretary had failed to meet.

As I view the present posture of this case, my review will be limited to ascertaining whether the Secretary, after having had a second chance, has filled these evidentiary gaps which Judge Luongo properly termed deficient.³

As the Court of Appeals of this Circuit has repeatedly emphasized, the test of disability consists of two parts: "(1) a determination of the extent of the applicant's physical or mental impairment, and (2) a determination of whether that impairment results in an inability to engage in any substantial gainful activity." Janek v. Celebrezze, 336 F.2d 828, 833 (3rd Cir. 1964). See also Stancavage v. Celebrezze, 323 F.2d 373 (3rd Cir. 1963); Farley v. Celebrezze, 315 F.2d 704 (3rd Cir. 1963); Hodgson v. Celebrezze, 312 F.2d 260 (3rd Cir. 1963); Klimaszewski v. Flemming, 176 F.Supp. 927, 931 (E.D.Pa. 1959); Kerner v. Flemming, 283 F.2d 916 (2d Cir. 1960).

As to the first test—plaintiff's physical impairment—the Secretary apparently concedes that Seldomridge has some partial impairment; and even if such a concession had not been made, I am in agreement with Judge Luongo's finding that "the evidence in this case reveals an impairment of long lasting duration." 204 F.Supp. 707, 711.

The Hearing Examiner, on June 6, 1960, found that by "the weight of the substantial medical evidence * * * claimant is suffering from partial disabilities which, no doubt, handicap him in obtaining suitable gainful employment which may prevent him from engaging in his prior occupation or in other arduous work, * * *" (Tr. 14.)⁴

To cast this case in its proper posture for review, it is necessary to (1) review some of the medical evidence as to the extent of the disabilities in order to (2) decide if Seldomridge has an inability to engage in any substantial activity.

After having reviewed the evidence, I have concluded that plaintiff is entitled to summary judgment because the record demonstrates that he has "an inability to engage in any substantial gainful activity." Janek v. Celebrezze, supra, 336 F. 2d at p. 833.

I. STANDARD OF REVIEW

Even a cursory review of this record demonstrates that before and after the remand, the Secretary consistently resolved every possible inference against the claimant—even though there was often substantial evidence to support the position of the claimant. In fact, the Secretary's representative took painstaking efforts to exert every possible argument against the claimant.⁵ When one recognizes that the Social Security Act "* * * is a remedial statute and must be construed liberally,"⁶ such consistent administrative harshness causes one to have concern about the quality of justice for those numerous indigent claimants who cannot afford counsel. Also "in view of the severe restrictions as to attorney's fees,"⁷ there is a similar concern about the quality of justice which actually exists for those claimants who are readily able to pay for competent counsel.⁸ In the instant matter, prior to the complaint filed in this court, Seldomridge was not represented by counsel at the bureau level, or in the appeals to the hearing examiner or to the Appeals Council.

Yet, if there is "substantial" evidence supporting each of two diametrically opposed conclusions, and if within that context any of the Secretary's representatives is inclined when given a choice to resolve every permissible inference against the claimant, legally, such is his prerogative for which he cannot be reversed—even if most fact finders would have readily reached the opposite result by sustaining the claim. This is his prerogative by reason of a presumed administrative expertise, and it is within such a limited scope of judicial review that I hereafter discuss and weigh the evidence.⁹

II. EXTENT OF MEDICAL DISABILITY

Plaintiff's application for benefits alleges an inability commencing January 16, 1959, because of "heart trouble, kidneys and lungs."

Plaintiff, a single male, was born in either 1900 or 1902. While there is evidence in the record establishing several ailments,¹⁰ the major disabilities appear to be "pulmonary and cardiac impairments."

Plaintiff filed his application for social security benefits on July 20, 1959. Thus, as the Appeals Council noted, he must "establish that a disability * * * began on or before July 20, 1959." (Tr. 116.)

On July 5, 1962, thus subsequent to Judge Luongo's remand, Seldomridge was admitted as a patient to the Henry R. Landis State Hospital with active moderately advanced pulmonary tuberculosis. (Tr. 259-260.) He was admitted as a transferee from an earlier admission to the Veterans Administration Hospital. As of the close of the medical records in this case, there was no evidence that Seldomridge had been discharged, and the Appeals Council found that at Landis State Hospital the "duration of hospitalization was indefinite." (Tr. 115.) The representative of Landis State Hospital in his most recent communication of record had stated the following:

"What is the claimant's present condition?

"The claimant is considered to be chronically, not acutely ill.

* * * * * *

"What is the probable duration of hospitalization?

"This is difficult to forecast * *. The hospital policy is to keep patients at least one year after the last positive smear or culture. The last positive sputum culture was in 7/62 (reported in 9/62). Therefore, claimant should be confined at least until 7/63, assuming subsequent cultures are negative. If they are positive, you will be confined that much longer." (Tr. 266.)

A. Evidence Supporting Plaintiff's Claim of Medical Disability

The substantial evidence of record which supported Seldomridge's claim that he was totally disabled as of July, 1959, is as follows:

1. "The claimant's significant medical history began in 1953 when with a diagnosis of tuberculosis by the Philadelphia City Chest Council (Exhibit AC-2C, p. 1) and the Veterans Administration (Exhibit AC-25, p. 28), he was admitted to the White Haven Sanitorium on January 23, 1953." (Second Decision of the Appeals Council, Tr. 111.)

2. On October 4, 1953, he was discharged with a diagnosis of "moderately advanced pulmonary tuberculosis, and apparently arrested, negative sputum." (Tr. 111.)

3. After various jobs as a shipfitter in 1955, for Bethlehem Steel, he began work as a shipfitter for New York Shipbuilding Corporation, Camden, New Jersey, on May 1, 1958. (Tr. 111.)

4. In December, 1958, "He began missing work * * * and was carried in a medical status beginning January 9, 1959. He performed no work after that date and on August 1, 1960, he was discharged." (Tr. 111) (Emphasis added.)

5. On February 7, 1959, a medical certificate was filed with New York Shipbuilding Corporation by Dr. David Cohen "describing the claimant's illness as `virus infection, acute bronchitis'." (Tr. 111.)

6. "A claim was filed under New Jersey Temporary Disability Law (Exhibit AC-24) and the claimant received payment of $35.00 a week from February 18, 1959, to July 23, 1959." (Tr. 112.)

7. "On March 15, 1959, claimant was admitted to St. Lukes and Children's Medical Center with a `history of shortness of breath, dizziness, and palpitation, all of two months' duration'." (Tr. 112.)

8. On April 2, 1959, claimant was examined by the Veterans Administration resulting in a "diagnosis of pulmonary tuberculosis, and apparently inactive; pulmonary emphysema, advanced; cardiac failure under treatment; recurrent renal lithiasis; general arteriosclerosis, and general debility. Complaints were of shortness of breath, fatigue, suffocation, pains to the upper chest, and coughs." (Tr. 112.) As the result of an x-ray study, "the impression was suggestion of left renal calculus and evidence of old minimum re-infection tuberculosis of the right upper lobe of questionable activity." (Ibid.) (Emphasis added.)

9. As a result of x-ray studies at the Burge Tuberculosis Clinic, on April 24, 1959, they found ...