Simms v. Weinberger, 73-532-Civ-J-S.
| Decision Date | 25 April 1974 |
| Docket Number | No. 73-532-Civ-J-S.,73-532-Civ-J-S. |
| Citation | 377 F. Supp. 321 |
| Parties | Betty T. SIMMS, Plaintiff, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Giles P. Lewis, Jacksonville, Fla., for plaintiff.
Harvey E. Schlesinger, Asst. U. S. Atty., Jacksonville, Fla., for defendant.
This Social Security disability case came before this Court for hearing on the Secretary's motion for summary judgment, filed herein December 13, 1973. For the reasons set forth below, defendant's motion will be denied and summary final judgment will be entered, sua sponte, in favor of the claimant. 6 J. Moore, Federal Practice ¶ 56.12, at 2241 (2d ed. 1974).
This is an action under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare denying disability benefits to the plaintiff.
The final decision was that the claimant-plaintiff was not disabled within the meaning of the Act at any time prior to September 30, 1968, which both parties agree is the date upon which the claimant's insured status, for purposes of disability, expired.1 The sole issue before this Court is whether the Secretary's final decision is supported by "substantial evidence".
The plaintiff is a 41 year old female who has a high school education and since high school has either been a housewife or a PBX operator and receptionist. She has never had any special job training and her insured status under the Act expired on September 30, 1968.
The undisputed evidence indicates that Mrs. Simms is now permanently disabled with multiple sclerosis. However, the plaintiff cannot recover disability insurance benefits unless she can demonstrate that this progressively degenerative disorder was sufficiently severe so as to render her "disabled" within the meaning of Section 223(d)(1)(A) of the Act, 42 U.S.C. § 423(d)(1)(A), prior to expiration of her insured status on September 30, 1968.
The evidence before the administrative law judge consisted of both live testimony and documentary medical evidence. The three live witnesses were Mrs. Shirley Mohr, the claimant's former neighbor, Mrs. Simms herself, and her husband, Virgil A. Simms.
Mrs. Mohr testified that she had known the plaintiff since about 1955 or 1956 and that she has had contact with her on a continuing basis at least once a week since that time. She said that the claimant fell in a grocery store about 12 years ago for no apparent reason. She further stated that Mrs. Simms' hands became "affected with a condition she was unable to identify"; that in 1967 the claimant became unable to lift pans in her kitchen; and that she was unable to go shopping after late summer of that year. She became unable to walk over 30 minutes at a time, to sew, cook or to do any of her housework, much less work at gainful employment. Mrs. Mohr further testified that, at that time, the claimant ". . . couldn't keep up with her little girl" and drove her automobile "very little". Mrs. Mohr usually found the plaintiff in bed when she visited the plaintiff's home. In addition, it became increasingly difficult for Mrs. Simms to arise from a prone position and she stumbled frequently. Furthermore, she never left the house without her husband.
Mr. Simms testified that his wife's condition commenced in 1958 when her left side, including her left arm and left leg, became numb, which condition persisted some three months and for which she received medical treatment. The symptoms reappeared in June 1967, with the additional symptoms of severe dizziness, loss of balance, acute weakness, diplopia (double vision) and inability to move her right leg. As a result, Mr. Simms and his mother permanently assumed the family housekeeping responsibilities.
Mrs. Simms corroborated the foregoing testimony and further testified with regard to her attempts to return to work with her previous employer in July 1968 for one week and in July 1969 for two weeks in order to "fight" the condition. She testified that she was unable to perform the work required of her as a receptionist in that she could not escort visitors through the plant as she did in the past because of extreme fatigue. She had to ask others to relieve her for brief periods at least every hour so she could lie down and rest. She could not walk up steps which did not have a rail and, on one occasion, she fell down some stairs. Because she could not "hold out" physically she was forced to quit her job. She could not adequately perform the tasks required of her.
The documentary medical evidence fully corroborated the live testimony and was quite extensive. The final diagnosis upon her discharge from St. Vincent's Hospital on May 20, 1969, was that she had multiple sclerosis, characterized by remissions and exacerbations. Reference was made therein to an episode of diplopia in June 1968 when the plaintiff became unable to turn her left eye to the side. This was followed by a remission of these symptoms, which, in turn, was followed by a recurrence which persisted approximately six weeks, only to subside once again. Reference was also made to the paralysis which occurred in 1967 and which Mrs. Simms testified alternated one side of her body to the other. Upon readmission to St. Vincent's in 1971, the discharge diagnosis was once again multiple sclerosis.
Three physicians who personally treated the plaintiff rendered unqualified medical opinions that the plaintiff was disabled prior to September 30, 1968. Doctor Howard C. Chandler, a board-certified neurosurgeon who has treated Mrs. Simms on a continuous basis since April 15, 1958, concluded that she became unable to engage in substantial gainful activity in September 1967, a year before her insured status expired. Doctor Jacob Green, another neurosurgeon who examined the plaintiff in May 1969, concluded that she was disabled prior to September 1968. Doctor Charles O. Joest, an obstetrician and gynecologist who has treated her from November 30, 1965, until the present on a continuous basis, concluded that the symptoms of multiple sclerosis became manifest on or about April 13, 1966, and have progressively increased in severity since that time. Doctor Joest felt "certain" that she became unable, both mentally and physically, to work prior to September 30, 1968.
The only evidence in the administrative record to indicate that the plaintiff was not disabled on or before September 30, 1968, is the conclusion of the Social Security disability review physician2 to that effect. It should be pointed out that the disability review physician never personally examined the plaintiff but only reviewed a cold record which did not include the medical reports of Doctor Green and Doctor Joest or a complete record from St. Vincent's Hospital.
Section 223(d)(1)(A) of the Social Security Act, 42 U.S.C. § 423(d)(1)(A), defines "disability" as follows:
. . . inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months;
Section 223(d)(3) of the Act, 42 U.S.C. § 423(d)(3), provides:
For purpose of this subsection, a "physical or mental impairment" is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
The pertinent HEW regulation, 20 C.F. R. § 1506, Subpart P., App. 11.09, provides that the requisite level of severity for the neurological disorder of multiple sclerosis includes the following impairments:
The administrative law judge concluded that "Mrs. Simms' state of health had not, by September 30, 1968, reached the point where she was so handicapped and so impaired that she was from that point in time precluded from all work activity leading to the accomplishment of substantial gainful activity". This Court concludes that the administrative law judge's decision was not supported by "substantial evidence" and that, in addition, he misapplied his own regulation in reaching his decision.
First of all, the administrative law judge's denial of the plaintiff's claim for disability benefits can be supported only by the conclusory opinion of the non-examining disability review physician that the claimant was not "disabled" within the meaning of the Act on or before September 30, 1968. When viewed in the light of the medical opinions of three examining experts to the contrary, together with the uncontroverted testimony of Mrs. Mohr, Mrs. Simms and Mr. Simms that the plaintiff was unable to engage in normal housework activities much less "substantial gainful activity", it cannot be said that the administrative law judge's opinion was bottomed on substantial evidence. The medical opinion of the disability review physician, predicated as it is on a record bereft of personal observation and professional contact, simply cannot withstand the overwhelming opposing evidence of physical impairment presented herein.
In this regard, the Court is inclined to follow the law as expressed in the recent Fourth Circuit case of Martin v. Secretary of HEW, 492 F.2d 905 (1974), wherein it was held that ". . . a non-examining physician's opinion cannot, by itself, serve as substantial evidence supporting a denial of disability benefits when it is contradicted by all the other evidence in the record". 492 F.2d at 908. See also Hayes v. Gardner, 376 F.2d 517 (4th Cir. 1967). This Court agrees with the...
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