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TERIO v. WEINBERGER

March 22, 1976

Luigana TERIO,1 Plaintiff,
v.
Caspar WEINBERGER, Secretary of Health, Education and Welfare of the United States of America, Defendant



The opinion of the court was delivered by: CURTIN

CURTIN, Chief Judge.

 This is a suit under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Secretary denying the plaintiff's application for the establishment of a period of disability under § 216(i) of the Act, 42 U.S.C. § 416(i), and for disability insurance benefits as provided by § 223 of the Act, 42 U.S.C. § 423.

 The plaintiff filed an application for disability benefits on December 8, 1972 alleging that she became unable to work on June 25, 1971, at age 55. The application was initially denied on January 25, 1973 and, on reconsideration, denied again on August 6, 1973. A hearing before an administrative law judge was held on January 10, 1974 and was attended by plaintiff, her attorney and plaintiff's daughter, who acted as interpreter. The administrative law judge found plaintiff was not disabled. This decision was approved by the Appeals Council on April 2, 1974 and therefore became the final decision of the Secretary of Health, Education and Welfare. Plaintiff met the earnings requirement on June 25, 1971, the alleged onset date of her disability, and will continue to meet them until September 30, 1976. Defendant moves for summary judgment. Plaintiff requests the court to remand to the Secretary for further hearings.

 Plaintiff, a married woman, emigrated to the United States on March 18, 1963. She completed four or five years of education in Italy. Although she can speak and read Italian, plaintiff neither reads nor writes and speaks only a little English. She was a farmer in Italy and from July, 1964 until June, 1971 plaintiff refinished men's jackets by hand.

 Plaintiff complained of pain in her back and right leg following a fall at work on June 25, 1971. When her pain persisted after traction, a lumbar myelogram was performed on July 22, 1971 which showed a defect at the L4-5 level on the right. A partial laminectomy was performed on July 29, 1971. Claimant's postoperative course was satisfactory until her fifth postoperative day when she developed an acute pulmonary embolism. She subsequently developed left chest pain and was placed in the Intensive Care Unit on medication. She had episodes of auricular fibrillation and her right leg was approximately 3 / 4 inch larger than her left. Claimant's condition thereafter gradually improved and she was discharged on August 28, 1971.

 At the time of the hearing, plaintiff testified that she was unable either to work or to do any substantial housework, and that her husband and daughter had to do the cooking, laundering and cleaning. This testimony was corroborated by her daughter.

 The Secretary found:

 
The claimant was not prevented from engaging in any substantial gainful activity, such as her aforesaid customary job, by any medically determinable physical or mental impairment, singly or in combination, for any continuous period beginning on or before [January 11, 1974] the date of [the administrative law judge's] decision which has lasted or could be expected to last for at least 12 months.

 This finding amounts to a conclusion that plaintiff was not disabled within the meaning of the Act. 42 U.S.C. § 423(d)(1)(A).

 The question is whether the Secretary's determination that the plaintiff was not disabled is supported by substantial evidence. If it is, the finding is conclusive. 42 U.S.C. § 405(g).

 In Janek v. Celebrezze, 336 F.2d 828, 833 (3d Cir. 1964), the court said:

 
. . . the test for disability consists of two parts: (1) a determination of the extent of the applicant's physical or mental impairment, and (2) a determination whether that impairment results in an inability to engage in any substantial gainful activity.

 The record contains the medical opinions of three physicians: Dr. Angelo, the physician who treated plaintiff's back and leg; Dr. Repicci, the physician who examined plaintiff "at the state agency's request;" and Dr. Rachow, plaintiff's regular physician, who was not treating plaintiff's back or leg complaints. About January 5, 1973, Dr. Angelo reported that plaintiff could sit and stand for two hours each, walk one-half block, stoop and bend a little and lift up to fifteen pounds. On April 5, 1973, Dr. Angelo said that plaintiff was "partially disabled." Dr. Repicci was of the opinion that, as of May 14, 1973, plaintiff ".. retains a mild permanent partial impairment . . . ." On April 16, 1973, Dr. Rachow reported that the phlebitis plaintiff suffered with for three years was "not what is keeping her from work, since I considered it well enough for adequate activity as of the first of this year. Her real problem is her back . . . ." This did not contradict the opinions of Drs. Repicci and Angelo; indeed, it would seem to confirm their opinions that plaintiff is partially disabled.

 In addition to the above medical evidence, the claimant also complained of pain. The court may consider subjective evidence to determine plaintiff's disability. Underwood v. Ribicoff, 298 F.2d 850, 852 (4th Cir. 1962). In this case, the subjective evidence indicates that plaintiff suffers from pains in her right leg two or three times per day, in her back and chest every two or three days, and the pain radiates up to her head. Though she takes medication for some of these discomforts, they apparently ...


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