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FRISCHMAN v. FLEMING

April 25, 1961

Max FRISCHMAN, Plaintiff,
v.
Arthur FLEMING, Secretary of the United States Department of Health, Education and Welfare, Defendant



The opinion of the court was delivered by: RAYFIEL

These are cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A.

The plaintiff commenced this action under Section 405(g) of Title 42 of the U.S.C.A. to review and reverse the decision of the Appeals Council of the Social Security Administration which had denied him disability benefits.

 The facts, as disclosed by the transcript of the record on file, are as follows:

 The plaintiff was born on March 21, 1895, had been employed as a machinist and electrician. In January, 1943, his employment as an electrician at the Navy Yard in Brooklyn, New York, was terminated by reason of the completion of the work in which he had been engaged. Thereafter he attempted to obtain work, but without success. For some time previously he had been suffering from a peptic ulcer and diabetes, but neither of these ailments had disabled him. In August, 1943, he consulted a physician, Dr. Wincor, because he was suffering from heartburn and substernal pain, with radiation. Dr. Wincor advised him not to work and to take naps between meals. Periodically thereafter, until October, 1944, he visited Dr. Wincor, who, in a statement dated November 13, 1956, said the plaintiff had been under his care during that period 'for the treatment of precordial pains indicative of angina of (sic) effort.' On August 30, 1944, having suffered chest pains on the preceding day while walking on a golf course, he consulted one Dr. Douglas Palmer, now deceased, who administered a hypodermic injection and nitroglycerin orally and advised immediate and continued bed rest. On September 29, 1944, when he complained of illness and difficulty in breathing, his wife accompanied him on a visit to Dr. Wincor. The doctor directed him to return to bed. Early in the morning of October 2, 1944 he was taken to the emergency room of the Jewish Hospital of Brooklyn (the hospital record shows October 3, 1944 as the date of treatment), where his condition was diagnosed as 'nicotine intoxication.' after treatment he returned to his home. A few hours later his wife accompanied him to Dr. Palmer's office where he was given a sedative hypodermically and then sent to the French Hospital for treatment by a Dr. Harry Johnson, a heart specialist.

 The record of the French Hospital, dated March 10, 1958, reveals that the plaintiff was first admitted to that institution on October 3, 1944. He remained there until November 6, 1944, when he was discharged. The abstract of the plaintiff's record at the French Hospital, dated November 30, 1950, states as follows: 'Electrocardiograms taken on 10/5/44, 10/16/44 and 11/3/44 all showed changes consistent with myocardial disease.

 'Patient's condition improved, discharged 11/6/44. Diagnosis on discharge was coronary thrombosis.'

 On December 18, 1944 he was readmitted to the French Hospital, complaining, as the record discloses, of 'chest pain, Anterior and Posterior, intermittent, 3 days duration.' He was hospitalized for five days. The abstract of the hospital record respecting that period of confinement states, 'impression made on admission was Angina Pectoris.'

 He was admitted to the French Hospital for the third time on February 26, 1949, and remained there until March 3, 1949. The hospital record for that period reports 'Impression; -- Anginal syndrome. Arteriosclerotic heart disease. Acute coronary insufficiency.'

 His fourth admission to the French Hospital occurred on March 23, 1950 and he remained there until June 1, 1950. The hospital report covering that period, dated November 22, 1950, states, 'Patient's condition improved with bed rest and medication. Discharged June 1st. Admission diagnosis Coronary occlusion. Anginal syndrome.'

 The plaintiff was also hospitalized at the Doctor's Hospital in New York from February 9, 1950 to February 24, 1950; September 5, 1950 to September 9, 1950; February 3, 1951 to February 20, 1951; January 29, 1952 to February 8, 1952; August 21, 1953 to September 4, 1953; August 10, 1954 to August 20, 1954 and August 17 to August 24, 1956. In each of the hospital reports covering those visits the diagnosis was either coronary heart disease, coronary arteriosclerosis, arteriosclerotic heart disease, coronary occlusion or anginal syndrome.

 The plaintiff was under the care and treatment of Dr. Johnson for his heart condition from October 2, 1944 to February 2, 1951. He visited the doctor twice or more each month during that period. On February 8, 1945 Dr. Johnson wrote to the plaintiff's wife as follows, 'I can say that it will be impossible for Mr. Frischman to return to work within less than three months and probably not then. He has responded so poorly to his routine of rest that I cannot be very optimistic about a rapid cure.' On February 11, 1945, April 26, 1945, May 23, 1945 and December 10, 1946 he signed reports as the plaintiff's attending physician, as well as a certificate and statements to the New York Life Insurance Company on the plaintiff's claim for disability benefits, in which he stated that plaintiff was suffering from coronary thrombosis, that he would be unable to engage in any gainful occupation for an indefinite period, that he was suffering severe precordial pain on slight exertion, and that his prognosis was poor.

 The plaintiff was examined on December 16, 1944, February 5, 1946, April 30, 1947, and August 30, 1948 by a Dr. Henry M. Ellen, who, on October 10, 1945, sent a report to the plaintiff's wife wherein he stated that the plaintiff 'should under no circumstances be permitted to go to work. Exertion of any type would affect his cardiac condition.'

 Dr. Ellen submitted to the New York Life Insurance Company on February 5, 1946, April 30, 1947 and August 30, 1948 statements as plaintiff's attending physician, in which he stated that the plaintiff was suffering from coronary thrombosis, that his prognosis was poor, that he was unable to engage in any work, occupation or business, and that he could fix no definite date as to when plaintiff would be able to engage in such work.

 Beginning in May, 1948 the plaintiff was treated by Dr. Michael Iserman. He visited or was visited by this doctor 39 times from May to December, 1948, 49 times in 1949, 44 times in 1950, 30 times in 1951, 17 times in 1952 and 8 times in 1953. Dr. Iserman submitted certificates to the New York Life Insurance Company on November 7, 1949, January 13, 1950, and November 20, 1952 in which he stated that the cause of plaintiff's disability was anginal syndrome, coronary heart disease and coronary occlusion, 1944; that he was unable to ...


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