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THOMAS v. RICHARDSON

March 4, 1974

Jack R. THOMAS, Plaintiff,
v.
Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant


Lasker, District Judge.


The opinion of the court was delivered by: LASKER

MEMORANDUM

LASKER, District Judge.

 This is an action under § 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g) for review of a final decision of the Secretary of Health, Education and Welfare (the Secretary), denying plaintiff's claim for continuation of disability benefits and a "disability freeze." The purpose of a disability freeze is to eliminate from the wage earner's record his period of disablement, increasing the average monthly wage for purposes of computing his old-age benefits. Plaintiff was initially allowed benefits beginning in March, 1967. After a determination by the Social Security Administration that plaintiff's disability had ceased in March, 1971, and a like finding by the hearing examiner on May 10, 1972, benefits were terminated. The hearing examiner's decision became the final decision of the Secretary after approval by the Appeals Council on June 15, 1972.

 Both plaintiff, Jack R. Thomas, and the Secretary move for judgment on the pleadings and transcript of the hearing record pursuant to Rule 12(c), Federal Rules of Civil Procedure and 42 U.S.C. § 405(g), the government claiming that the decision of the hearing examiner is supported by substantial evidence, and plaintiff that it is not.

 I.

 Section 223 of the Act, 42 U.S.C.A., § 423, provides in relevant part:

 
"For purposes of paragraph (1) (A) -- an individual . . . shall be determined to be under a disability only if his physical or mental impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), 'work which exists in the national economy ' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.
 
* * *
 
For purposes of this subsection, a 'physical or mental impairment ' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory techniques."

 The parties are essentially in agreement on the extent of plaintiff's impairment. On March 12, 1967, he fractured a vertebra of the spine in an automobile accident; upon healing, his condition stablized with residual limitations on weight-bearing ability and bending, and intermittent moderate pain which prevents plaintiff from remaining too long in any one physical position. The parties part company, however, on the issue whether the evidence establishes that plaintiff's impairment has improved sufficiently to permit him to engage in "substantial gainful activity" within the meaning of the Act.

 Plaintiff had been a crane operator prior to his injury, a job involving heavy manual labor. It is undisputed that his educational deficiencies which include limited reading, writing and verbal abilities, (Transcript 82) preclude all but manual occupations. In view of these deficiencies, the hearing examiner asked Fred M. Hoenigmann, the sole vocational expert who testified, the following:

 
"Q Mr. Hoenigmann, I ask you to consider the claimant's age of 49 years. He was born on March 8, 1922; his education, training and work experience, and assuming I find he's been suffering from a residual fracture of the 12th dorsal vertebra, as a consequence of which he has a somewhat limited range of motion, forward bending and backward bending (apparently sideway bending is adequate) and there's some restriction of motion in the cervical area, which after passage of time or continuation of the activity will create a certain amount of pain; as a consequence of which any work that he might be able to do should be limited to positions where he can sit or stand as he chooses; and with minimal bending, limited squatting, stooping, lifting; certainly nothing in excess of 15 to 20 pounds and of a more sedentary nature. Is there any work which exists in significant numbers in the general area of metropolitan New York which he has the residual capacity to perform?
 
A There would be a few jobs."

 Hoenigmann described several jobs he thought plaintiff could do. However, on cross-examination, his opinion of plaintiff's actual fitness for such jobs, or the availability of such jobs in the labor market, was punctuated by reservations and qualifications. Some ...


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