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September 5, 1968

Harold SHAFFER, Plaintiff,
John W. GARDNER, Secretary of Health, Education, and Welfare, Defendant

The opinion of the court was delivered by: TIMBERS

TIMBERS, District Judge.

Defendant Secretary of Health, Education and Welfare (Secretary) has moved, pursuant to Rule 56(b), Fed.R.Civ.P., for summary judgment dismissing the complaint in which plaintiff Harold Shaffer, pursuant to the provisions of Section 205(g) of the Social Security Act, as amended (42 U.S.C. § 405(g)), seeks a review and reversal of the final decision of the Secretary denying plaintiff's claim filed August 20, 1962 for a period of disability and disability benefits under Sections 216(i) and 223 of the Act (42 U.S.C. §§ 416(i) and 423).

 The Secretary's summary judgment motion is based upon the complaint, motion, affidavits, proceedings before the hearing examiner, and exhibits. After receiving the motion upon submission of briefs by both sides at Syracuse on May 13, 1968, and viewing the inferences to be drawn from the underlying facts contained in these materials in the light most favorable to plaintiff as the party opposing the instant motion, United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962), the Court concludes that there is substantial evidence to support the Secretary's decision and that the Secretary is entitled to judgment in his favor as a matter of law.

 The Secretary's motion for summary judgment accordingly is granted.


 Jurisdiction is based on Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).


 The background of this claim is recited in some detail in the late Judge Brennan's decision rendered June 8, 1966, on appeal from the first hearing examiner's report:

"On September 8, 1958 the plaintiff sustained injuries to his back and shoulder by reason of a falling cable released through the action of an employee of the Bell Telephone Company. Plaintiff for some time had been a construction laborer and at the time of the accident was employed by the Parry Company, his actual activity being that of 'flagman', in a construction project involving the building of a bridge near Clinton, New York. He continued his employment for a few days and at the suggestion of a representative of the Telephone Company, he then consulted Dr. Shaughnessy at Herkimer, N.Y. It would seem that shortly thereafter plaintiff retained counsel in the matter of his injuries, referred to above, his claim being based upon the alleged negligence of the third party Telephone Company. Plaintiff has since remained unemployed. It would appear that on September 30, 1961, the earnings requirement of the Social Security Act were last met by this plaintiff. On August 20, 1962, plaintiff made application for disability benefits under the Social Security Act. The application was denied April 9, 1963 on the conclusion that the applicant's condition 'is not one which is expected to continue for a long and indefinite time without real improvement.' Reconsideration was denied on June 25, 1963 upon the basis that the plaintiff's 'condition was not severe enough to prevent you from engaging in substantial gainful work similar to work you have previously done'. In the meantime in January 1963, plaintiff sustained a broken hip in an automobile accident. This incident however and its medical results would not seem to be important in this decision since the earning requirements under the Act had expired on September 30, 1961. On October 16, 1963 plaintiff made an application for a hearing in the matter of his claim. A hearing was held on November 25, 1963 and on April 10, 1964 relief was denied in a decision by the examiner. Request for review by the Appeals Council was denied September 18, 1964 after three additional items of medical evidence had been added to the record."

 Judge Brennan reversed the hearing examiner's denial of plaintiff's claim and remanded for a new hearing. He ordered that certain defects in the original determination be corrected, and that there be applied the amended test of disability, effective July 30, 1965, which defined disability as 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 has lasted or can be expected to last for a continuous period of not less than 12 months. * * *" Social Security Act, §§ 216(i)(1) and 223(c)(2) (42 U.S.C. §§ 416(i)(1) and 423(c)(2)). This new definition applied to claims in which judicial review was pending at its effective date.

 At the second hearing, the evidence adduced at the initial hearing was considered, as well as new evidence. As to Dr. Shaughnessy's testimony that he treated plaintiff three times a week between September 11, 1958 and September 14, 1961 with diathermy, analgesics, and a surgical belt, the hearing examiner concluded that this treatment indicated "lack of severity of claimant's impairments" (175, 195). That treatment "was not continued from at least September 30, 1961. From then until his second accident in January 1963, claimant was not further seen by Dr. Shaughnessy or other physicians. This absence of treatment may fairly be taken into account upon the resolution of the issue of disability prior to October 1, 1961" (196). *fn1"

 He found that Dr. Shaughnessy's declaration, that the date claimant could return to work was indefinite as of October 16, 1961, was "contrary to the preponderant weight of the substantial medical and other evidence hereinabove set forth" (196).

 With respect to plaintiff's prior back condition, and the effect of the 1958 accident thereon, the hearing examiner characterized the September 12, 1958 X-ray at the Herkimer Memorial Hospital as negative for recent injury (175). He quoted from a January 14, 1963 report from Dr. Piekielniak, an "impartial medical consultant" who had examined an X-ray of that date:

"That this claimant has some cervical and lumbar symptoms is unquestioned. However, x-rays of the cervical spaces shows [sic] no significant abnormal process except slight hypertrophic changes. These, in my opinion, are not sufficiently marked to give ...

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