Tietze v. Richardson

• Decision Date: 08 May 1972
• Docket Number: Civ. A. No. 69-H-460.
• Parties: Arthur L. TIETZE v. Elliott L. RICHARDSON.
• Court: U.S. District Court — Southern District of Texas

342 F. Supp. 610

Arthur L. TIETZE v. Elliott L. RICHARDSON.

Civ. A. No. 69-H-460.

United States District Court, S. D. Texas, Houston Division.

March 9, 1972.

As Amended May 8, 1972.

COPYRIGHT MATERIAL OMITTED

Murray L. Lieberman, Lieberman, Tratras & Markowitz, Houston, Tex., for plaintiff.

Anthony J. P. Farris, U. S. Atty., and Wayne H. Paris, Asst. U. S. Atty., Houston, Tex., for defendant.

MEMORANDUM AND ORDER

CARL O. BUE, Jr., District Judge.

This is an action under § 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health, Education & Welfare, denying claimant's entitlement to a period of disability and application for monthly disability insurance benefits.

Although the history of this litigation may be traced only through lengthy and circuitous administrative mazes, it is necessary that such tracings be done to effect an understanding of claimant's position at present. Plaintiff's initial application was filed on May 19, 1961, and was denied initially and on reconsideration by the Social Security Administration (Tr. 123-26, 129-31, 133-35). A hearing was held (Tr. 39-90) on January 9, 1963, following which the examiner found that the plaintiff was not entitled to a period of disability or to disability insurance benefits (Tr. 172-88). That denial was affirmed by the Appeals Council on January 28, 1964 (Tr. 210-34). A second application was filed on February 3, 1964, denied in March of 1964 (Tr. 246-51), and became the final decision of the Secretary when the plaintiff did not appeal from that denial. These applications are not before this Court for review.

A third application was filed on July 24, 1967, alleging a disability beginning in January of 1966. After an evaluation of the evidence by a physician and disability examiner, the Texas Division of Disability Determination found against the plaintiff. On submission to the Bureau of Disability Insurance of the Social Security Administration, plaintiff's application was denied initially and again on reconsideration (Tr. 256-57, 259-62). After a de novo hearing before the hearing examiner, a finding was reached on September 17, 1968, that the plaintiff was not under a disability beginning on or before September 30, 1963, the date he last retained the necessary disability insured status (Tr. 20-27, 91-122). The Appeals Council considered plaintiff's request for review, and on March 24, 1969 (Tr. at 3), held the decision of the examiner to be correct, which decision then became the final decision of the Secretary of Health, Education and Welfare. This action was then commenced.

The hearing examiner declined to treat the application as one for a disability beginning in 1966, as alleged by the plaintiff. To do so would have certainly denied plaintiff any possibility for an award of benefits, since plaintiff last met the special earnings requirement for disability insurance benefits under the Act on September 30, 1963. In order to prevail, plaintiff must establish that he was unable to engage in substantial gainful activity on or before that date, Dillingham v. Cohen, 403 F.2d 213 (5th Cir. 1968).

The hearing examiner, treating the application as a petition for reopening of the initial denial of disability benefits, found that plaintiff (1) had failed to show good cause for reopening, as he had not offered any new and material evidence bearing on his condition as of September 30, 1963, and (2) had failed to file his application within four years after denial on initial determination, as required by regulation, 20 CFR § 404.957(b).

However, and regardless of these findings, the examiner did consider the evidence submitted by the plaintiff, analyzing such evidence by application of the standards in effect, both prior to the amendments of 1965 and subsequent thereto. He found that after plaintiff's hospitalization early in 1961 as a consequence of an obstruction of the inferior vena cava and left renal vein due to thrombosis, and the ligation of the vena cava at that time, plaintiff's condition had improved to the extent that by the fall of 1961 he was able to engage in light and sedentary activity. It was found that previous evidence concerning plaintiff's capability to work in clerical and sales fields as of that time was amply supported.

The examiner further found that plaintiff's medical status could possibly have changed as a result of a cerebral vascular accident in July of 1967, but he also found that plaintiff was not insured for disability insurance purposes at that time.

The scope of review by this Court is limited to the consideration of whether the findings of the Secretary as reflected in the record are supported by substantial evidence and whether proper legal standards were applied, 42 U.S.C. § 405(g); Green v. Gardner, 391 F.2d 606 (5th Cir. 1968). Substantial evidence is defined as that amount of relevant evidence that a reasonable mind might accept as adequate to support the Secretary's conclusion, Hayes v. Celebrezze, 311 F.2d 648 (5th Cir. 1963). It is not a Court's function to try the case de novo, Alsobrooks v. Gardner, 357 F.2d 110 (5th Cir. 1966), reh. den., 394 F.2d 985 (5th Cir. 1968); nor to weigh the evidence, Brown v. Finch, 429 F.2d 80 (5th Cir. 1970); nor to resolve factual conflicts including contrary medical opinions of doctors, Hayes v. Celebrezze, supra; nor to make credibility findings, Celebrezze v. Zimmerman, 339 F.2d 496 (5th Cir. 1964). The Court, however, must scrutinize the record as a whole to determine if the Secretary's findings and conclusions are reasonable, Bridges v. Gardner, 368 F.2d 86 (5th Cir. 1966).

The Court must first consider the examiner's interpretation of the time limitation to be employed for administrative reopening under 20 CFR 404.957. Plaintiff's initial application for disability insurance benefits was denied on July 2, 1962, which denial was affirmed by decision of the Appeals Council on January 28, 1964. The instant application was filed on July 24, 1967. The hearing examiner's findings was based on his assumption that the July 2nd date was determinative for purposes of application of the four year statute of limitations, and properly so. See dicta in Pasquale v. Finch, 418 F.2d 627, 631-633 (1st Cir. 1969), questioning the lower court decision, Pasquale v. Cohen, 296 F.Supp. 1088 (D.R.I.1969), but dismissing the appeal as untimely filed. Thus, the petition for reopening was not timely filed.

However, with commendable zeal, the hearing examiner did reconsider evidence previously submitted and all new evidence submitted in connection with the 1967 application, and he did render a determination on the merits.

This determination, that the plaintiff was not entitled to disability insurance, is amply supported by substantial evidence. Evidence submitted prior to this application discloses plaintiff to be well developed, well educated, with no outward indication of ambulatory problems and with noticeable intelligence and communicative skill. A number of doctors examined and reported on the plaintiff's physical condition: Dr. Charles A. Armbrust, Sr., Dr. Charles M. Gaitz, Dr. William K. Brown and several physicians from various Veterans Administration facilities. Plaintiff's medical history was traced reflecting a serious physical illness, thrombosis of the vena cava, which was shown to have been considerably improved by surgery and anti-coagulant therapy. A number of his complaints, including heart trouble, recurring vomiting and constant fever, all of which plaintiff alleges to be incapacitating, are simply not medically determinable nor supportable by any evidence in the record. It is significant that the physicians who examined the plaintiff found that his primary problem was functional.

Dr. Brown, a specialist in internal medicine, stated that none of plaintiff's physical complaints was disabling, although the swelling in his legs would limit his activities to those in which standing or walking for long periods of time would not be required. He found that "the patient's principal trouble is a matter of self-pity and lack of motivation to accomplish anything within the limits of his physical capacity." (Tr. at 179).

Dr. Gaitz performed a psychiatric examination upon the plaintiff, finding his complaint symptomatic of an anxiety reaction in a person who has had a serious physical illness and who has some residual impairment from this illness, rather than indicative of present physical or mental disabilities. Dr. Gaitz was unable to find "any evidence of psychiatric illness severe enough to...