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ZIMBALIST v. RICHARDSON

October 26, 1971

Irving I. ZIMBALIST, Plaintiff,
v.
Elliot RICHARDSON, as Secretary of Health, Education and Welfare of the United States of America, Defendant


Mishler, District Judge.


The opinion of the court was delivered by: MISHLER

Memorandum of Decision and Order

MISHLER, District Judge.

 This is an action brought pursuant to § 205(g) of the Social Security Act (42 U.S.C. § 405(g)) to review a final decision of the Secretary of Health, Education and Welfare denying plaintiff's application for a period of disability and disability benefits. Plaintiff moved for summary judgment directing the Secretary to pay disability insurance benefits from March 6, 1969.

 Plaintiff filed an application for a period of disability and disability insurance benefits *fn1" on December 28, 1964. In that application, he claimed that he was disabled because of mental illness as of January, 1964. The application disclosed that plaintiff was born on May 31, 1921 and had been employed by the Board of Education of the City of New York for 14 years as an industrial arts teacher. The application was granted and disability insurance benefits were paid to August 31, 1966 on a finding that he had been engaged in a substantial gainful activity since June 9, 1966. *fn2"

 On April 13, 1967, plaintiff's wife, Janet Zimbalist, applied for disability insurance benefits on behalf of plaintiff. The application disclosed that plaintiff's employment terminated in March, 1967, and that he was confined to a hospital for treatment of a mental illness. The disability interview report indicated that plaintiff was confined to a Veterans Administration hospital for a recurrent condition described in the report as "maniac [sic] depressive" and from which it appears that plaintiff experienced abnormal episodes of depression and elation. On May 5, 1967, the Bureau of Disability Insurance of the Social Security Administration determined that plaintiff was disabled as of March 27, 1967 and payments resumed as of that date. Again, based on a voluntary report of the plaintiff in June, 1968 to the Bureau indicating that plaintiff was engaged in substantial gainful activity, payments ceased on August 31, 1968. *fn3"

 Plaintiff filed an application for a period of disability and for disability benefits on April 9, 1969. His application discloses that on the date of the application he was "confined" to a hospital for treatment of a mental illness but "allowed to go home at night because of the shortage of help at hospital." The application states that plaintiff was employed by Hermes Engravers from June 20, 1968 to March 6, 1969. It fixes the date disability commenced as March 6, 1969.

 The Decision of Evaluation and Authorization of the Bureau of Disability Insurance denied the application on June 12, 1969. Mrs. Zimbalist requested reconsideration. On reconsideration, the previous determination of denial was upheld. *fn4" Mrs. Zimbalist requested a hearing. A hearing was held on January 23, 1970.

 Mrs. Zimbalist testified that at the time plaintiff advised the Bureau of his ability to engage in substantial activity in June, 1968, he was employed at Hermes Engravers at $100 per week. He left the employ of Hermes Engravers on March 6, 1969. He was hospitalized from March 12, 1969 to April 17, 1969 at the Veterans Administration Hospital. Dr. Richard G. Singer, Chief Psychiatrist of the Veterans Administration Hospital wrote, in the hospital report discharging plaintiff on April 17, 1969:

 
This 100% service connected veteran was last discharged 8/67. Since that time the patient returned to his home where he was gainfully employed. He functioned very well and was maintained on a PHC program. One week prior to admission the patient became markedly tense and depressed. He felt unable to sleep and unable to communicate. He decided to seek admission. On admission, the physical, neurological and laboratory examinations were essentially within normal limits, with the exception of his periodontitis. The patient was treated with Thorazine to which he very favorably responded. At no time was the patient's behavior devious and his depression quickly lifted. He adjusted satisfactorily to week end passes and was able to spend a great deal of time at home. At the time of his discharge, the patient was regarded as being incompetent to handle VA funds. This was the consequence of behavior in the past in which the patient injudiciously handled his money. It is recommended that this incompetence be continued. At the time of his discharge, the patient was given a one week supply of Thorazine. There is significant impairment in this case but the likelihood is that the patient is able to hold down a job. There is strong possibility that he may decompensate again in the future and require hospitalization. His impairment in the social area is regarded as being minimal. The patient was discharged on PHC in order that he could be followed and his first appointment will be 5/14/69.

 He was again admitted to the Veterans Administration Hospital on June 18, 1969. Dr. Singer's report states:

 
This is the 5th NP admission of a 48 year old, service connected veteran, who complained that for several weeks prior to admission, he became deeply depressed, unable to concentrate, and was unable to get up and attend work shop. Patient felt completely out of control and requested that he be admitted. Physical, neurological and laboratory examinations were unremarkable, with the exception of periodontitis of his teeth, and a scar on his abdomen, the result of a subtotal gastrectomy in 1967. In the hospital, the patient was treated with Ellavil and Thorazine, to which he quickly and favorably responded. Patient adjusted to gate passes and began to sleep at home. His depressive symptoms gradually disappeared and the patient was capable of resuming his pre-hospital activities. At the time of his discharge, the patient was regarded as being medically incompetent. He has a history of injudiciously using funds. The patient was discharged on PHC in order that his condition be followed. At the time of his discharge, it was felt that the patient could attempt some employment. His capacity to work is somewhat speculative and cannot be determined until the patient is actually tried in a work situation. He will be seen for follow up care. First appointment 8/1/69.

 On August 28, 1969, he obtained employment as a shipping clerk at Knoll International at $100 per week. The employer manufactured office furniture.

 He again entered the hospital on Friday, October 31, 1969, and was discharged on Tuesday, November 4, 1969. He returned to work on November 5, 1969. He told his employer he was ill with the flu. He was continuously employed to the date of the hearing at Knoll ...


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