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EHRENREICH v. WEINBERGER

June 27, 1975

Joanne O. EHRENREICH, Plaintiff,
v.
Caspar WEINBERGER, Secretary of Health, Education and Welfare of the United States of America Social Security Administration, Washington, D. C., Defendant



The opinion of the court was delivered by: CURTIN

CURTIN, Chief Judge.

 This is an action brought under § 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 widow's insurance benefits based on disability under §§ 202(e) and 223(d) of the Act, 42 U.S.C. §§ 402(e) and 423(d). Plaintiff filed an application for disabled widow's insurance benefits on November 26, 1971 alleging that she became unable to work in April, 1963 at age 49. Since plaintiff attained the age of 60 on November 14, 1973, her prescribed period of eligibility extended from November, 1971 to October 31, 1973. After a hearing before an administrative law judge, a decision was filed on September 5, 1973 holding that the plaintiff was not under a disability. The Appeals Council approved the decision of the administrative law judge on November 8, 1973 and this lawsuit followed. The case is now before the court on motions of both plaintiff and defendant for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 To qualify for benefits as a disabled widow under the Social Security Act, a claimant must establish that she is at least 50 years of age, that she is the widow of a wage earner who died fully insured, and that she is under a disability. 42 U.S.C. § 402(e). A widow shall not be deemed to be under a disability unless

 
. . . his or her physical or mental impairment or impairments are of a level of severity which under regulations prescribed by the Secretary is deemed to be sufficient to preclude an individual from engaging in any gainful activity. 42 U.S.C. § 423(d)(2)(B).

 Pursuant to 42 U.S.C. § 423(d), the Secretary promulgated Social Security Administration Regulation No. 4, 20 C.F.R. § 404.1504, which provides that a widow shall be determined to be under a disability only if

 
(a) His or her impairment or impairments meet the duration requirement in § 404.1501 and are listed in the appendix to this subpart; or
 
(b) His or her impairment or impairments are not listed in the appendix to this subpart, but singly or in combination meet the duration requirement in § 404.1501 and are determined by the Secretary to be medically the equivalent of a listed impairment.

 The determination of a disability for disabled widow's benefits is therefore concerned solely with the severity of the impairment. Truss v. Richardson, 338 F. Supp. 741 (E.D.Mich.1971); Hendrix v. Finch, 310 F. Supp. 513 (D.S.C.1970). In contrast, 42 U.S.C. § 423(d)(1)(A) (disability insurance) also requires consideration of plaintiff's age, educational background and work experience. Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir. 1962). Further, under 42 U.S.C. § 423(d)(2)(B), a widow must establish that she is precluded from engaging in "any gainful activity," whereas under 42 U.S.C. § 423(d)(1)(A) a claimant must only establish inability to engage in "any substantial gainful activity."

 The scope of judicial review of the Secretary's decision is limited. 42 U.S.C. § 405(g) provides that "[the] findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." Under this standard, the reviewing court may not try the case de novo and substitute its findings for those of the Secretary. Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). Where, as here, there is conflicting medical evidence, the Secretary must resolve such conflict. Therefore, the single issue now before the court is whether the Secretary's decision is supported by substantial evidence.

 The record in this case reveals the following facts which are not in dispute. Plaintiff testified at the hearing that she had been unable to work since 1963 due to a heart condition, a spastic colon, tension, depression, severe backaches, severe headaches, incontinence and shortness of breath. Nonetheless, after the alleged onset of her disabilities, plaintiff worked as a legal and medical secretary between 1963 and 1965. During her period of eligibility (11/71 -- 10/31/73), although she received some assistance from relatives, plaintiff was physically able to take care of her personal and basic household needs. To control her various conditions, plaintiff testified that she takes numerous medications: Vitamin B and B-12, Hematonic, Elavil, Valium, Delmane, Darvaceten, Tylenol, Codeine and Nitro, and wears a cervical collar to lessen her headaches. Plaintiff also testified that on her September, 1972 motor vehicle operator's license renewal, she did not indicate any heart disease and no restrictions were placed on her license.

 Plaintiff was hospitalized at Kenmore Mercy Hospital from August 5 to August 21, 1966. Dr. Norman Chassin, an internist, was plaintiff's attending physician. Dr. Chassin diagnosed coronary vessel disease with insufficiency, spastic colon and possible hypothyroidism. In a written report dated October 11, 1972, Dr. Chassin indicated that the plaintiff was under his care for angina, mental depression, incontinence and low back pain. Dr. Chassin did not furnish any clinical or laboratory findings with this report; however, he did state that plaintiff was "not able to work."

 On January 14, 1973 through January 24, 1973, plaintiff was again hospitalized at Kenmore Mercy Hospital. Dr. Narasi, her attending physician, diagnosed vertebrobasilar insufficiency secondary to cervical spondylosis, arteriosclerotic heart disease with coronary artery disease, compensated, and reactive depression. In a written report dated February 13, 1973, Dr. Narasi indicated that plaintiff suffered from arteriosclerotic coronary artery disease -- class IIB, cervical spondylosis with vertebrobasilar insufficiency, and reactive depression. He concluded that plaintiff was not able to work and was "physically and mentally incapacitated for any rehabilitation."

 Dr. Aquilina, an internist, examined plaintiff at the state agency's request. In his report dated June 15, 1972, Dr. Aquilina stated that plaintiff's resting EKG revealed no diagnostic abnormalities, and he considered plaintiff's Master's Two-Step exercise test, not completed because of plaintiff's shortness of breath, to be negative. Dr. Aquilina made no conclusions concerning plaintiff's alleged other impairments, either singly or in combination.

 Various other physicians submitted findings or statements which included an unsigned diagnosis of angina, an x-ray report from Dr. Katz, a diagnosis of urinary tract infection by Dr. Gonder, a diagnosis of degenerative disc disease, lumbar and cervical spine by Dr. Brothman, the 1966 and 1973 Kenmore Mercy Hospital reports and a report from the Florida ...


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