The opinion of the court was delivered by: GURFEIN
This action was instituted pursuant to the provisions of 42 U.S.C. § 405(g) (Section 205(g) of the Social Security Act, as amended (the "Act")) to review a final decision of the Secretary of Health, Education and Welfare (the "Secretary"), denying plaintiff's application for the establishment of a period of disability and for disability insurance benefits under the provisions of 42 U.S.C. §§ 416(i) and 423 (Sections 216(i) and 223 of the Act).
On April 17, 1968 the plaintiff filed her application with the Social Security Administration for the establishment of a period of disability and for disability insurance benefits, alleging that she became unable to work in August of 1967, at age 60. By letter dated August 9, 1968, the Social Security Administration advised plaintiff that her claim had been denied on the ground that she did not meet the disability requirement of the law. Following affirmance upon reconsideration, a hearing was held on June 25, 1969, at which plaintiff appeared and testified, represented by counsel. In a written decision, the hearing examiner denied plaintiff's application, finding that she had failed to establish that, at any time from August 1967 to the date of his decision, she had had an impairment or combination of impairments which was of such severity as to prevent her from engaging in any substantial gainful activity and which had lasted a continuous period of at least twelve months or was expected to last such period or to end in death. On August 20, 1969 the Appeals Council declined to review the examiner's decision, which thus became the decision of the Secretary. Thereafter this action was commenced.
The defendant moves for summary judgment under Fed. R. Civ. P. 56. The plaintiff in her brief asks for summary judgment on her behalf.
The term "disability" in 42 U.S.C. 416(i)(1) and 423(d)(1) (Sections 216(i)(1) and 223(d)(1) of the Act), is defined in pertinent part as follows:
"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 * * *."
Plaintiff is a 64-year-old widow, born in Puerto Rico, where she received a seventh-grade education. Beginning in 1949 plaintiff was employed as a machine packer for the Brillo Manufacturing Co., and worked regularly until February 1966 when she injured her right shoulder as a result of a fall. Following this fall, she came under the care of Dr. Harvey H. Lewis, an orthopedic surgeon, who diagnosed her injury as a fracture of the neck of her right humerus. As a result of this injury, plaintiff was caused to be totally incapacitated for employment purposes until August 22, 1966. She received New York State disability benefits until July 5, 1966.
The plaintiff testified at the hearing on June 25, 1969 that upon her return to work on August 22, 1966 she was able to work for three hours, at which time the pain in her right shoulder made further work impossible. Although the plaintiff did return to work, she only worked a total of eight weeks during the period of August 22, 1966 to January 1, 1967. She thereafter worked an additional thirty-two weeks until August 7, 1967. During this period the plaintiff continued to be treated by Dr. Lewis.
In September, 1967 the plaintiff agreed to undergo an operation at Flower-Fifth Avenue Hospital where, on September 6, 1967, she underwent a resection of the outer end of the acromin and a tenodesis on the hypermobile biceps tendon of the right shoulder. Dr. Lewis reported, on November 27, 1967 that the plaintiff was completely disabled and in need of further medical attention. He also stated that her disability was causally related to her fall in February 1966 in which she sustained a fracture of the right humerus.
The plaintiff testified at the hearing that Dr. Lewis told her that she was unable to work following her operation and in fact the plaintiff never returned to work after August 7, 1967. The plaintiff also testified that since August-September 1967 she had been unable to do her own housework or to dress herself. She testified that she experienced pain in her right shoulder while sitting and standing and that one of her neighbors sprays "ether" on her right shoulder to kill the pain. In addition, the plaintiff testified that she took pills four times daily to try to relieve the pain.
When questioned by the hearing examiner as to whether she had, during the 12 months prior to the hearing, travelled on the bus or subway, she replied that she took the bus to go to church, approximately 10 blocks from her home and that she had used the subway only 3 or 5 times during that period, primarily to go to her attorney's office and to attend the hearing. On these occasions she was accompanied by her daughter, Mrs. A. Martinez. Mrs. Martinez supported her mother's version that she required help for the household chores.
The medical testimony will be referred to in some detail below. There is no question that the requisite insurance premiums have been paid.
I am of the opinion that this case is so similar to Ber v. Celebrezze, 332 F.2d 293 (2 Cir. 1964) that the decision in that case is controlling. Accord, Miracle v. Celebrezze, 351 F.2d 361 (6 Cir. 1965). Indeed, the primary test of disability has been liberalized by Congress since the decision in Ber. In 1964, the physical or mental impairment for "disability" was required to be one "which can be expected to result in death or to be of long-continued and indefinite duration." Social Security Act § 223(c), 42 U.S.C. § 423(c)(2), quoted in 332 F.2d at 294. In 1965, Congress amended the definition of disability, substituting for the above quoted words, the following: "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" (42 U.S.C. § 416(i)(1). Senate Report No. 404, U.S. Code Cong. & Admin. News, 89th Cong., 1st Sess., p. 2039 (1965) discloses the Congressional purpose:
"The effect of the provision the committee is recommending is to provide disability benefits for a totally disabled worker even though his condition may be ...