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July 2, 1964

Mary C. BRILL, Plaintiff,
Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Defendant

The opinion of the court was delivered by: ZAVATT

The plaintiff herein, Mary C. Brill, has instituted this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review the final decision of the Secretary of Health, Education, and Welfare denying her application for disability insurance benefits. The case is now before this court on defendant's motion, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment.

Mrs. Brill, a woman of fifty-five years of age, first applied for disability benefits on April 6, 1957. This application was denied and no appeal was taken therefrom. Her second application, under consideration herein, was filed on July 21, 1960. In this application the plaintiff alleged that she became unable to work in August 1956 due to an arthritic condition, and that such condition has persisted, rendering her totally disabled. This application was denied on the ground that the plaintiff was not disabled within the meaning of Section 223(c) of the Social Security Act, 42 U.S.C. § 423(c):

 ' § 423. Disability insurance benefit payments -- Disability insurance benefits

 '(c) For purposes of this section

 '(2) The term 'disability' means 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. An individual shall not be considered to be under a disability unless he furnishes such proof of the existence thereof as may be required.'

 In informing the plaintiff of its decision, the Department stated that:

 'The medical evidence shows that you have arthritis in various major joints of your body causing pain and discomfort; however, it is not shown that your over-all ability has been so severely affected as to prevent you from engaging in substantial gainful activity.'

 Upon plaintiff's request for reconsideration, the Department affirmed its initial determination, noting that:

 'You state that you are unable to work because of arthritis. The medical evidence, including examinations by specialists with laboratory tests and X-rays, does not show that your condition is so severe as to prevent you from doing work of a light or moderate nature. It is recognized that you may have some pain and discomfort, however, it has not been demonstrated that there is severe swelling or restriction of movement in the affected joints. You may be handicapped for strenuous activities, but it is not shown that you have been so severely affected as to make you unable to do any type of substantial gainful work.'

 The plaintiff requested and on June 27, 1962, received a hearing before a hearing examiner of the Social Security Administration. The evidence submitted, testimony received, and conclusions drawn by the hearing examiner will be considered below. On August 30, 1962, the hearing examiner affirmed the prior denial of plaintiff's application. This became the final decision of the Secretary on November 15, 1962, when the Appeals Council denied the plaintiff's request for review. On January 9, 1963, within the sixty day period prescribed by 42 U.S.C. § 405, the plaintiff instituted the present action in this court.

 The record before the hearing examiner indicated that Mrs. Brill was brought to this country when she was an infant and has completed one year of high school. Over the years she has been employed in a variety of menial jobs: shoveling manure in a fertilizer factory, operating a burring machine in an aircraft plant during the Second World War, as a kitchen maid at Bellevue Hospital, and as a cleaning woman at a large insurance company. She was discharged from this last position because her physical condition prevented her from performing the work satisfactorily. Her employer, however, intervened to get her another, less strenuous, position as a mail sorter at another company. The plaintiff's testimony with regard to this last position was that:

 'I liked the work only my health -- I couldn't go every morning. In the morning I'd get up stiff with the rheumatics and my attendance was very bad.'

 Mrs. Brill finally quit this job in August 1956 because she 'got very sick and * * * ended up in Manhattan General (Hospital) with attacks a couple times of sciatica.' Since 1950 the plaintiff has been separated from her husband and has lived with her father, now 86 years old, in a fourth floor walk-up apartment. She testified that her father pays the rent for this apartment, that she receives thirteen dollars a week from her husband, and that she receives financial assistance from her relatives. Shortly after she left her last position, the plaintiff's son died from an overdose of heroin. It appears from the record that he served with the Armed Forces in Korea, and, according to the plaintiff, 'came home a complete wreck mentally.' As will be revealed by the medical evidence, the effect of her son's death upon the plaintiff is a crucial factor in determining Mrs. Brill's ability or inability 'to engage in any substantial gainful activity.'

 Medical Evidence

 On October 8, 1953, the plaintiff was admitted to Manhattan General Hospital for treatment of pains in her right hip. No radiographic abnormality was disclosed by x-rays and her condition was diagnosed as right sciatica. She was discharged from the hospital a week later, with her condition and progress rated as 'good.' On October 13, 1954, she was again admitted to Manhattan General for treatment of a pain in her right leg and tremors in the right arm and left buttock. X-rays disclosed no fractures, dislocations or arthritic change and her condition was diagnosed as lipoma of the right arm, sebaceous cyst of the left thigh, and rheumatism of the right lower extremity. The record discloses no further medical examinations until shortly after the death of plaintiff's son. At that time, in the fall of 1956, the plaintiff was seen at the Gynecology and Medical Clinics of the New ork Infirmary. A letter from that institution to the Department reveals that:

 'Patient was last seen in our Medical Clinic on 11/12/56. At this time our doctor reported that the ECG done on this patient was normal. Patient appeared to be upset since the death of her son. Patient felt very nervous and complained of pain over right hip while bending. Our doctor's impression at this time was arthritis, right hip and advised x-ray of hip. However, patient did not have this x-ray done.'

 Less than a year later, on December 26, 1957, the plaintiff was admitted to an unidentified hospital suffering from an overdose of barbiturates. The plaintiff denied, however, that she had attempted suicide; she states that she merely took the pills which her doctor had prescribed for her mental condition. She was discharged from this hospital on December 28, 1957, the diagnosis being depressive reaction and overdose of barbiturates.

 The next piece of medical evidence which appears in the record is a report, dated April 29, 1957, by Dr. Catherine J. Caporale, a physician who had been treating the plaintiff since 1952. Dr. Caporale diagnosed the plaintiff's condition as right sciatica; rheumatism and arthritis of the right foot, leg, and hip; hyperthyroidism; menopause; and a severe anxiety state. The plaintiff's progress was reported as static and Dr. Caporale stated that no improvement could be expected. She further reported that she had advised Mrs. Brill not to work.

 A medical report submitted to the Department on August 18, 1960, by Dr. Maxwell B. Shaw, substantiates Dr. Caporale's diagnosis. Dr. Shaw, who had treated the plaintiff regularly for over three years, described her ailment as 'pain in both hands, shoulders, neck, thighs, back and ankles,' and reported that an x-ray examination on December 10, 1959 disclosed 'sl scolosis cervical spine calcified bursitis both shoulder Hyper arthritis spine.' Dr. Shaw stated that Mrs. Brill's physical condition had remained unchanged and further stated that her mental condition was one of reactive depression. He stated that as of July 1960 the plaintiff had limited but not restricted use of both hands; approximately 20% Restriction of motion in her shoulders, hips, ankles and neck; 30% Restriction of motion in her spine; and a 35% Loss of use of her left upper and right upper extremities. He further classified, as a serious condition significant to plaintiff's recovery, her 'severe psychoneurosis depression state.' Dr. Shaw concluded that plaintiff was '100% Disabled because of this psychoneurosis.'

 On December 10, 1959, the plaintiff was admitted to the Hospital of the Jacques Loewe Foundation; her admission note states that:

 'This 50 year old female began to have acute pains in both shoulders, neck and lower back 3 weeks ago. She has had some chills and fever and was treated at the Drs. office with injections of cortosone and analgesics as well as physio-therapy. The pains have not improved. Worse in A.M. and at night time. Unable to get out of bed and hospitalization was advised for further care and treatment.'

 The x-rays taken on that day revealed:

 'Cervical Spine: Conclusion: Slight scoliosis of the cervical spine to the right with minimal limitation of motion and flexion which is compatible with muscle spasm. Both Shoulders: Conclusion: Calcified bursitis both shoulders. Lumbo-sacral spine: Conclusion: Minimal hypertrophic arthritis of the mid lumber region. Sclerotic changes in the sacral iliac joints indicating arthritic changes in this area.'

 Mrs. Brill was discharged from this hospital on December 17, 1959. The final diagnosis was:

 'Hypertrophic arthritis lumbar and sacro-iliac region and cervical spine. Calcified ...

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