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SELIG v. RICHARDSON

June 24, 1974

HARRY SELIG, Plaintiff,
v.
ELLIOT L. RICHARDSON, SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

 NEAHER, District Judge.

 This action seeks review of a final decision of the defendant Secretary of Health, Education and Welfare ("H.E.W."), which denied plaintiff's application for disability insurance benefits under § 223(a) of the Social Security Act ("the Act"), 42 U.S.C. § 423(a). Defendant has moved for judgment on the pleadings on the basis of the certified administrative record and a memorandum of law.

 I.

 The procedural history of this case may be briefly summarized. Plaintiff's application for disability insurance benefits was filed with the Bureau of Disability Insurance, Social Security Administration ("S.S.A."), on September 22, 1970, wherein he stated he had been unable to work as of 1967 due to a heart condition. The application was disallowed because plaintiff did not meet the earnings requirement of the Act. Plaintiff requested reconsideration, alleging that he had been disabled and unable to work due to his condition since 1958. Upon reconsideration S.S.A. determined on March 5, 1971, that plaintiff last met the Act's special earnings requirements on September 30, 1962, but again disallowed the claim because "medical evidence fails to indicate an impairment that was severe" as of September 30, 1962. Official Transcript at 69 (hereinafter "Tr. [*]").

 Plaintiff thereafter requested a hearing before a hearing examiner of the Bureau of Hearings and Appeals, S.S.A., again alleging his total disability since 1958. The hearing was held August 20, 1971, and attended by plaintiff, represented by counsel who represents him here. In his decision of September 2, 1971, the hearing examiner concluded that although there was no doubt that plaintiff was disabled as of September 1967, "the medical evidence fails to indicate an impairment that was severe September 30, 1962, when claimant last met the earnings requirement." Tr. 15.

 Plaintiff's request for review of the hearing examiner's action was timely filed, and on October 8, 1971, the Appeals Council, Bureau of Hearings and Appeals, found the decision of the hearing examiner to be correct, denied review, and left his decision standing as the final decision of the Secretary. 20 C.F.R. § 404.940.

 Plaintiff timely filed this action on December 6, 1971, alleging his entitlement to benefits by having "substantially established" his "inability to engage in substancial [sic.] gainful activity as of 1958." Plaintiff's Complaint, paras. 14, 9. Before the case was brought to trial, plaintiff filed a motion for remand of the case to H.E.W. to take additional evidence that had become available after the Secretary's decision. On December 29, 1972, the court ordered the case remanded to H.E.W. pursuant to § 205(g) of the Act, 42 U.S.C. § 405(g).

 After receiving plaintiff's additional evidence, the hearing examiner's decision of September 2, 1971, was affirmed by the Appeals Council, in a decision dated July 3, 1973, which was made a part of the original record filed here. Defendant's motion for judgment on the pleadings, F.R. Civ. P. 12(c), was made on January 11, 1974, and the court reserved decision. For the reasons which follow, the case must once again be remanded to H.E.W. to take further evidence.

 II.

 The actual findings under review are those of the Appeals Council of July 3, 1973. In affirming the hearing examiner, its decision is based on findings, inter alia, that (1) the medical evidence fails to establish that the claimant had a significant heart or other impairment on or prior to September 30, 1962 which would have precluded the performance of vocational activity consistent with his age, education and work experience; (2) on and prior to September 30, 1962, the claimant retained the residual functional capacity to engage in one or more of his former jobs as well as in other managerial or clerical jobs which existed in significant numbers in the national economy; and (3) the claimant has no medically determinable impairment or impairments which became so severe on or before September 30, 1962 as to prevent him from engaging in substantial gainful activity.

 These findings were based on evidence in the record which sets forth in some detail the circumstances leading to plaintiff's acknowledged present disability. Plaintiff was born in 1909, obtained a college degree, and thereafter worked as a salesman or actor until he entered the military service in 1942. He received a medical discharge in 1945, when it was determined that he was "permanently physically incapacitated for active military service." Tr. 118. During his military service, plaintiff frequently complained to medical officers about chest pains radiating to his left shoulder and down his left arm, but the final diagnosis upon discharge was essentially one of psychoneurosis. Tr. 101.

 Plaintiff married in 1943 or 1944, but was unemployed, while in his mid-thirties, for six years following his discharge from the service. Between 1951 and 1958 he worked initially as an appliance store salesman and later as the store manager. He did not work again until 1967, when he worked for a short period of time. He worked for a few weeks in 1968 and as long again in 1969, and apparently has not worked at all since that time.

 After his discharge plaintiff was treated for his ailments by various doctors, including, since 1954, Dr. Mordecai Zucker, who found plaintiff to be suffering from pain in his left arm and chest, and diagnosed it as a neurosis, Tr. 43, or tension anxiety, Tr. 70, 101, 120, 122. Dr. Zucker stated: "In 1957 this condition became so severe that I strongly advised him to cease all employment." Tr. 120. In 1967 and again in 1969, plaintiff suffered heart attacks which thereafter, and indisputably, left him totally unemployable. Tr. 15, 90. Several electrocardiograms taken during 1956-1962 apparently were within normal limits. Tr. 15. Even one taken after plaintiff's first heart attack was normal. Tr. 101. It was Dr. Zucker's opinion that although in reality he had been treating plaintiff for coronary artery disease only since 1967, Tr. 97, in retrospect, ...


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