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Ber v. Celebrezze

May 25, 1964

SHIRLEY A. BER, PLAINTIFF-APPELLANT,
v.
ANTHONY J. CELEBREZZE, SECRETARY OF HEALTH, EDUCATION AND WELFARE, APPELLEE.



Author: Waterman

Before LUMBARD, Chief Judge, and WATERMAN and FRIENDLY, Circuit Judges.

WATERMAN, Circuit Judge.

This appeal is from the United States District Court for the Eastern District of New York in an action brought pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to challenge a determination by a Hearing Examiner acting for the Secretary of Health, Education and Welfare that appellant is not entitled to disability benefits and a disability freeze under Sections 216 and 223 of the Act, 42 U.S.C. §§ 416, 423. The Examiner's decision became that of the Secretary when the Appeals Council of the Department denied review. This action followed. The court below found, on the pleadings, that there was sufficient evidence to support the administrative result, granted the Secretary's motion for summary judgment and dismissed appellant's complaint. The sole question raised on appeal is whether there is substantial evidence in the record to support the Hearing Examiner's decision that appellant failed to establish that her condition satisfied the statutory test of an "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 to be of long-continued and indefinite duration." Social Security Act, § 223(c) (2), 42 U.S.C. § 423(c) (2). Having examined and studied the administrative record in the case, we answer this question in the negative and reverse the district court and instruct that judgment be entered in favor of appellant.

Appellant, Mrs. Ber, was born in Austria on September 18, 1901, and emigrated to the United States twenty-five years later. She had completed six years of elementary public school in Europe, and, after arriving in this country, supplemented this basic education by attending night high school for three years. Apparently her attendance at night school was primarily for the purpose of learning the English language, and she did not graduate. Mrs. Ber secured full-time employment as a sewing machine operator a week or so after her arrival in this country, and she steadily pursued this occupation and no other for a period of about thirty-five years until March of 1960. She was at that time employed as a sewing machine operator by a lingerie manufacturer in New York City, and, having suffered a slipped disc in the neck, the effects of which were compounded by a nineteen year old arthritic condition which she said had worsened over the preceding two years, she was forced to quit work. Although on two occasions thereafter she attempted to return to her employment she found it impossible to work at her job because of severe pains in her arms, head, and neck, and she has not been back at work since her final attempt to return in August of 1960.

On September 28, 1960, Mrs. Ber filed an application for disability benefits under the Social Security Act, but the Bureau of Old Age and Survivors Insurance, on March 9, 1961, determined that her condition was not disabling within the meaning of the Act. The Bureau, pursuant to a request made on March 14, 1961 by Mrs. Ber, later reconsidered her case and on June 4, 1961 rendered a decision affirming its original determination. Mrs. Ber then requested and was granted a hearing on her application; and in a decision dated March 12, 1962, the Hearing Examiner concluded that Mrs. Ber was not suffering from any physical or mental impairment of such a nature as to entitle her to Social Security disability benefits. On March 12, 1962, the Appeals Council of the Department denied Mrs. Ber's request for review, and thereupon the Hearing Examiner's decision became the official and final decision of the Secretary of Health, Education and Welfare, which in turn was upheld by the court below.

In his decision the Hearing Examiner pointed to no occupation other than that of a sewing machine operator which Mrs. Ber could have been expected to enter into and to engage in satisfactorily, nor did he give any indication that he had even considered the possibility that she might obtain another type of employment. Thus, though the decision is not explicit on this point, it is apparent that the Hearing Examiner did not refuse to grant Mrs. Ber disability benefits on the ground that, although prevented by her condition from continuing to operate a sewing machine for a living, she was able despite her maladies to engage in some alternative occupation. According to the rule which we established in Kerner v. Flemming, 283 F.2d 916 (2 Cir.1960), and which we have reaffirmed on several later occasions, Rinaldi v. Ribicoff, 305 F.2d 548 (2 Cir.1962), Pollak v. Ribicoff, 300 F.2d 674 (2 Cir.1962), such a determination would have had to be accompanied by a specification of types of employment opportunities actually available to Mrs. Ber, for "mere theoretical ability to engage in substantial gainful activity is not enough if no reasonable opportunity for this is available." Kerner v. Flemming, supra, 283 F.2d at 921. See also Stancavage v. Celebrezze, 323 F.2d 373 (3 Cir.1963); Hodgson v. Celebrezze, 312 F.2d 260 (3 Cir.1963). Therefore, as the Government recognizes on this appeal, the Hearing Examiner's decision could only have been based upon a finding that Mrs. Ber's condition was such that she was able to continue to be a sewing machine operator despite her claims that her condition was so extremely painful that she was required to cease that work and was unsuccessful in two attempts to return to it. We have therefore examined the record to determine whether this finding is supported by substantial evidence from the record taken as a whole.

Mrs. Ber testified that she had been suffering from an arthritic condition for about twenty years prior to the time she ceased to work, but that in the last two years that she worked the pain she suffered had considerably increased. It radiated out from her spine to her neck, head, arms, and legs, becoming so severe as to make even the use of eyeglasses most painful and requiring her to wear a cervical collar and a prosthetic corset. Mrs. Ber testified that she had been treated for a number of years for arthritis at a health center maintained by her union, and that she had been hospitalized because of this ailment from May 4 through May 18 of 1960; that her ailment forced her to sleep with a special board placed under her mattress; and that at times she was even compelled to leave her bed to spend the night in a beach chair. At the time of the hearing she was taking eight or ten pills a day, including sleeping pills, but found that these gave her little or no relief, and she was often unable to hold objects in her hands. She further testified that she could not perform her normal household duties, and that her husband had to do the cooking and cleaning and all but the very light shopping. Mrs. Ber's work as a sewing machine operator required her to sit at an electric sewing machine and operate it with her feet while steering material that she lifted from a pile beside her through the sewing mechanism at the top of the machine with her hands. She had to get up and leave her machine periodically, and at times had to carry bundles of cloth over to her machine.As we have already noted, she testified that her intense arthritic pains had forced her to stop working in March of 1960 and had thwarted her in two attempts which she thereafter made to return to her job.

In addition to the testimony of Mrs. Ber there was introduced into the record a considerable amount of medical evidence in the form of the written reports of a number of doctors who had examined Mrs. Ber. It was upon this evidence, which we summarize below, that the Hearing Examiner relied when he rejected Mrs. Ber's claims about the severity of her condition and determined that she was not suffering from a physical or mental impairment so severe as to prevent her from returning to her job. We think that this finding lacks substantial evidentiary support. While the medical evidence may perhaps indicate that Mrs. Ber's physical symptoms were of a type which probably would have caused many people considerably less pain than Mrs. Ber suffered, it nevertheless amply supports her complaint that in her particular medical case these symptoms were accompanied by pain so very real to her and so intense as to disable her.

Dr. Harry Grodzicker, Mrs. Ber's personal physician, prepared on September 29, 1960 and April 5, 1961 two medical reports which were submitted into evidence. In the first report Dr. Grodzicker stated that his patient suffered from pain in her neck which radiated down both arms, and that X-rays of the cervical spine showed marked arthritic changes and a slipped disc. Under the heading "Diagnosis" the report stated "arthritis of cervical spine, slipped disc of cervical region, menopause, chronic bronchitis"; and under the heading "Progress" there was a statement that Mrs. Ber's condition was getting progressively worse, that improvement could be expected only in the indefinite future, and that the patient's activity was restricted in that she could not do work requiring the use of her arms. Dr. Grodzicker concluded this report with the following statement: "Pt. has severe pains in cervical spine radiating to shoulders. Was in hosp. in traction & received many injections by a Neurologist. She is in constant pain and is completely disabled. Has generalized arthritis."

In the second report Dr. Grodzicker added little to the information which he had recited in his first report, but emphasized again that "Pt. has constant pain & is now completely disabled." Though he noted that Mrs. Ber's condition was "static," it appears that, because of the wording of the form on which he submitted his report, he took this term to mean lack of any positive progress. This conclusion is supported by statements in his first report and by the fact that, on the day preceding preparation of his second report, he signed the following statement: "This is to certify that Shirley Ber of 145 Hooper St. Bklyn N.Y. is under my care.She suffers from a severe cervical occipito arthritis, with severe neuritis and also suffers with a generalized arthritis which is is [sic] getting progressively worse. She is completely disabled."

In a report dated October 17, 1960, Dr. Maurice E. Wolf, a neurologist, stated that Mrs. Ber was suffering from a cervical osteoarthritis and a slipped disc, and "intense pain in the neck with marked limitation of rotation & turning of head." Under the report heading "Progress" he reported that relief of pain and increase in mobility would only be possible in the indefinite future, and that a restriction on his patient's activity was "incapacity to work." The report concluded with a notation that Mrs. Ber suffered from "constant and severe pains, incapacity to sleep, incapacity to work." In a second report, prepared ten days later, Dr. Wolf added that his patient had been hospitalized for fifteen days, from May 4, 1960 through May 18, 1960, and while in the hospital had received "daily paravertebral injections followed by manipulation."

Dr. Nathan H. Rachlin, an orthopedist who examined Mrs. Ber on January 10, 1961, stated in a report prepared that day for the New York Department of Social Welfare that Mrs. Ber suffered from clubbing of the digits of both hands and from cervical arthritis which was hypertrophic; that it was also possible that she had a herniated disc; that no atrophy was present and that there was no loss in the use of any of the extremities; that movement of the neck was limited, with the remaining degrees of motion in the neck estimated at ten degrees for rotation right and left, thirty degrees for extension, and five degrees for flexion. In a report also prepared that day for the United States Department of Health, Education and Welfare, Dr. Rachlin reiterated this information in a slightly more detailed form, and stated that Mrs. Ber "wears a stiff supporting collar, moving of the head is limited [sic] and painful" and "the pains are continuous and not relieved by bed rest." Noted in Dr. Rachlin's report was an X-ray examination conducted by Dr. Samuel Weinstein. This X-ray examination of the cervical spine revealed a very slight curvature, a slight narrowing of the joint space between C-5 and C-6, indicating discogenic disease, and some restriction of mobility on extreme flexion. Separate X-ray examinations conducted by Dr. A. LaGreca revealed about the same thing, for he reported mild osteoarthritic changes in the mid-cervical and lower lumbar bodies and a narrowing of the C-5 and C-6 disc space.

The report of Dr. LaGreca's X-ray examination was submitted in connection with a medical report prepared on October 14, 1960, by Dr. Howard Richman of the health center maintained by Mrs. Ber's union, in which Dr. Richman stated that it was his impression that Mrs. Ber had spondyloarthritis of the entire spine, that the motion of her spine was limited in all directions, and that she was suffering from pain in the back of her neck, spine and chest which was "getting progressively worse." Dr. Meyer Rosenblum, the medical director of the health center, in a letter dated December 27, 1961, reported that Mrs. Ber had been examined on October 18, 1961, and had complained of continuous pain in the neck and over the entire spine, and had indicated that the pain in her hands was so severe that she could not hold scissors or push material through a sewing machine. He stated that she exhibited a normal gait and that movements of the neck were adequate, and that, though reports from the neurology clinic had been essentially negative, Mrs. Ber had experienced pain in response to pressure on the cervical spine. Dr. Rosenblum quoted in his report a statement by the examining neurologist that "Patient does not obey the command to make a fist - 'it hurts.'"

Mrs. Ber also submitted to a neuropsychiatric examination by Dr. Alex H. Rubinowitz, the purpose of which was apparently to delve into Mrs. Ber's mental state as well as her physical condition. In his report Dr. Rubinowitz reviewed the history of Mrs. Ber's illness; he noted that she suffered severe and continuous pain in the dorsal and cervical regions of the spine, both hips, the shoulders, wrists and tips of the fingers, and he indicated that he had read reports of other physicians who had examined her. Dr. Rubinowitz's neurological examination revealed no evidence of gross motor weakness or loss of use of any of the extremities, that Mrs. Ber could pick up small objects and button her clothes, but that she walked very slowly and guardedly because of pain in her back and hips and refused to close her hand tightly because of ensuing pain. His examination also revealed that Mrs. Ber could bend forward and laterally two thirds of the normal distance.After he reviewed Mrs. Ber's general mental status as exhibited during the examination, which review described an otherwise normal person who became moody and depressed at times and whose "attention and concentration was [sic] considerably impaired" because of constant complaints about aches and pains, Dr. Rubinowitz concluded the ...


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