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LEVINE v. CELEBREZZE

November 16, 1965

Hyman P. LEVINE, Plaintiff,
v.
Anthony CELEBREZZE, Secretary of Health, Education and Welfare, Defendant



The opinion of the court was delivered by: RAYFIEL

RAYFIEL, District Judge.

 This is an action under Section 205(g) of the Social Security Act (the Act) Section 405(g) of Title 42, U.S.Code, to review a decision of the Secretary of Health, Education and Welfare (the Secretary) denying the plaintiff's application for the establishment under the Act of a period of disability and for the payment of disability benefits. The parties have cross moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.

 On or about August 5, 1963 the plaintiff, claiming that he had been disabled since the preceding March 1, 1963, applied for disability insurance benefits under the Act. When his claim was denied he requested and obtained a hearing which was held on August 13 and 26, 1964. The Hearing Examiner, finding that the plaintiff was not under disability, denied his claim for benefits, and the plaintiff then appealed to the Appeals Council of the Social Security Administration which declined to review the Hearing Examiner's determination.

 These are the facts. The plaintiff was born on January 1, 1911. After graduating from public elementary and high school he attended college for a period of three years, taking courses in accountancy, economics and business law. For several years thereafter he was employed for various periods as a saleman, stock clerk or window-dresser and on or about November 20, 1940 he entered the employ of the Department of Labor of the State of New York as an investigator, where he remained until his retirement on April 8, 1964, on which date he filed an application for "ordinary disability retirement." On May 13, 1964 the New York State authorities, having found him to be "physically incapacitated for the performance of duty as investigator * * * or similar duties ", approved his application.

 For approximately twelve years next preceding the filing of his application for retirement from the Labor Department of the State of New York the plaintiff was self-employed, part-time, as an accountant. On or about the date of such filing he transferred most of his accounting practice to his son, who left his then employment in that profession to engage in practice on his own account, maintaining his office in the plaintiff's home, where he also resided.

 The plaintiff stated that since April, 1963, aside from occasional discussions of accountancy matters with his son, he was only minimally active in that field. He testified that on or about March 1, 1963 he became unable to continue his work because of pains in his shoulder, shortness of breath, and chest pains following exertion, walking for distances in excess of two or three blocks, and cold weather. Since that date he has been inactive most of the day, spending his time reading, watching television, driving his car or walking for short distances.

 The medical evidence submitted on behalf of the claimant consisted of five reports of Dr. Jerome F. Schaeffer, bearing dates between August 17, 1963 and April 30, 1964, and a report of the Adelphi Hospital covering his confinement there from April 27, to May 31, 1963. Dr. Schaeffer's report of August 17, 1963 shows that he first saw the claimant on March 20, 1962, when he suffered a coronary thrombosis, and saw him monthly thereafter until July 11, 1963; that his examination of the claimant disclosed a cardiac enlargement and evidence of extensive anterior wall infarction and myocardial damage. His diagnosis was: arteriosclerotic heart disease. He treated the claimant symptomatically with fair response and found his condition static. He found that his functional and therapeutic classification (American Heart Association) was "Class III C". On the basis of his findings and information obtained from the claimant he directed that he be restricted to sedentary activity.

 Subsequent reports of Dr. Schaeffer dated November 27, 1963, January 30, 1964 and March 23, 1964 refer to the claimant's hospitalization for myocardial infarction at the Adelphi Hospital from March 20, 1962 to April 11, 1962 and a second period of confinement at the same hospital between April 27, 1963 and May 31, 1963, and express the opinion that the claimant, who had been under his care for some two years, was completely disabled as a result of the said heart attacks.

 In his report of April 30, 1964, Dr. Schaeffer states that dyspnea occurs on moderate effort such as hurried walking for two or three blocks, that the claimant was subject to attacks of angina once or twice a week, lasting for from five to ten minutes, from which he obtained relief by the use of nitroglycerin; and that there were no other symptoms of lowered cardiac reserves such as arrhythmia, cyanosis, syncope or dizziness. He stated further that while he thought the claimant should discontinue activity which would subject him to stress he could engage in work of a relative sedentary nature.

 The Adelphi Hospital report of his confinement there between April 27 and May 31, 1963 shows that he had had an acute coronary thrombosis and he suffered an extensive anterior wall infarct, from which he made an uneventful recovery.

 Dr. Seymour S. Cutler, a cardiologist, whose report was submitted by the Secretary, examined the claimant on November 15, 1963. His report stated that beginning in March, 1962 the claimant experienced shortness of breath, unaccompanied by pain, following walking for a distance; that he consulted a physician, who informed him that he had "an abnormal heart" and arranged for his confinement at Adelphi Hospital for a period of 4 weeks, and that following a period of convalescence after his discharge from the hospital he returned to his work in June, 1962, and continued to work until February, 1963; that, noting that in cold weather he suffered from dyspnea, he discontinued work until April, 1963, when he returned, but continued at work only until April 27, 1963, when he collapsed following severe chest pains, and was again admitted to Adelphi Hospital, where he remained for about 5 weeks. He has not worked since.

 Dr. Cutler further reported that the claimant had informed him that at his home he could ascend one flight of stairs without symptoms, walk as much as six blocks without angina and with only a brief (10 seconds) shortness of breath, and that after a few deep breaths he was able to continue walking; that he suffered no chest pains during or following periods of emotion or with coition.

 Dr. Cutler's report, following a statement of the nature of his examination of the claimant and his findings thereon, expressed the opinion that the claimant sustained 2 myocardial infarctions from which he has made an excellent functional recovery within the limits of the restricted life he now leads; that angina does not occur, that there is no congestive failure or enlargement of the heart; that the symptoms which he now describes are not cardiac in origin since the pains complained of are of a skeletal anterior chest-wall type, and are not referable to coronary insufficiency; and that the few deep breaths he takes after extensive walking do not represent dyspnea resulting from exertion.

 Dr. Cutler reported further that on a restricted routine the claimant "demonstrates no cardio-vascular or respiratory symptoms", and that while over-exertion resulting from walking greater distances, climbing more than one flight of stairs or working at a greater and sustained pace might produce symptoms, there is presently no reason to restrict himself to an excessively protected routine. On ...


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