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FESSLER v. MATTHEWS

May 11, 1976

Mildred FESSLER, Plaintiff,
v.
David MATTHEWS, Secretary of Health, Education and Welfare, Defendant



The opinion of the court was delivered by: MOTLEY

MEMORANDUM OPINION

 MOTLEY, District Judge.

 This is an action brought by Mildred Fessler pursuant to § 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), (the "Act") to review a final determination of the Secretary of Health, Education and Welfare (the "Secretary") denying her application for a period of disability benefits and disability insurance benefits under §§ 216(i) and 223 of the Act, respectively (42 U.S.C. §§ 416[i] and 423). This court concludes that, on the facts of this case, the interests of justice are best served by a remand to the Secretary for a new hearing. Defendant's motion for judgment on the pleadings is, accordingly, denied.

 Plaintiff filed an application for disability insurance benefits on October 27, 1970, alleging that she was unable to work because of a heart condition and an ulcer. The application was denied initially, the denial was affirmed, and was adhered to on reconsideration. Plaintiff requested a hearing, which was held on May 31, 1972.The administrative law judge before whom plaintiff appeared considered the case de novo and, on June 15, 1972, found that plaintiff was not under a "disability", as that term is defined in the Act. The administrative law judge's decision became the final decision of the Secretary when it was approved by the Appeals Council on August 1, 1972. Plaintiff then instituted this action to review that determination.

 The record reveals that plaintiff was born in Austria in 1906. She completed eight years of schooling and also completed a six month bookkeeping course. She is presently divorced and, for the last ten years, has lived alone in a three-room apartment in New York City.

 Although the transcript is somewhat ambiguous, it appears that plaintiff worked as a bookkeeper from either 1941 or 1950 until March of 1969. In March of 1969, she applied for, and then received, Social Security Retirement Benefits in the amount of $164 per month, after deduction of $6 for her Medicare contribution. At the same time, she terminated her employment with Montgomery Associates, *fn1" as soon as that firm had found a permanent replacement to fill her position. She testified at the administrative hearing that the job had become intolerable for her, that she could not handle it anymore, that the work piled up, that she tended to fall asleep in the afternoon, and that she experienced pain in her chest and stomach when she tried to work. After she left Montgomery Associates, she reported that she looked for another job, could not find anything suitable, and has been unemployed since 1969.

 According to her testimony at the hearing, plaintiff indicated that, before February of 1972, she had done her own cooking, cleaning and shopping, but that, after that time, she had restricted her cleaning to very light activity. She continued to use public transportation if it did not entail claimbing stairs, but she found it impossible to go outside for weeks at a time in the winter, due to the cold. During that time, her neighbors did her shopping for her.

 The medical evidence before the administrative law judge consisted of plaintiff's testimony, certain medical reports, and his own visual observations. To the judge, plaintiff appeared to be healthy, exhibiting no external indicia of physical impairment. By contrast, plaintiff herself testified in general terms that she experienced pain in her chest and stomach, that her legs hurt, and that she found it difficult to climb stairs. She also testified that she had been under the care of Dr. Isadore Schalmowitz and, subsequently, Dr. Charles K. Friedberg, an internist whom she had seen most recently in February of 1972. She also testified that she was taking medication, including nitroglycerin.

 The other medical evidence before the administrative law judge consisted of two medical reports prepared by Dr. Friedberg at the request of the agency, and the hospital record compiled during plaintiff's twoweek hospitalization in April, 1971 for a myocardial infarction.

 Dr. Friedberg's first report, dated October 27, 1970, disclosed the following: (1) the heart was normal in size and sound, there were no murmurs, and the EKG was normal with minor changes; (2) the lungs were clear and the chest X-ray was normal; (3) the urinalysis was negative. His "probable diagnosis" was "coronary heart disease with angina pectoris . . . based on history only."

 In his second report, dated November 23, 1971, Dr. Friedberg stated that plaintiff had been under his care since September 23, 1970 due to chest pain diagnosed as angina pectoris beginning in June of 1970. He also noted that plaintiff had continued to have disabling angina which prevented her at times from speaking. The inability to speak tended, he felt, to intensify her symptoms and cause a tightness in her neck, throat, and upper chest until she stopped talking. It was Dr. Friedberg's view that "[because] of these symptoms she has been disabled and unable to work and more specifically is unable to continue as a teacher since this requires continuous talking." (The latter statement apparently reflects a misunderstanding of plaintiff's occupation since, by her own testimony, plaintiff has worked exclusively at bookkeeping and clerical jobs since 1941.)

 Dr. Friedberg also treated plaintiff during her hospitalization for an acute myocardial infarction at The Mount Sinai Hospital during April, 1971. A chest X-ray taken during that hospitalization showed that the lung fields were clear, that the heart was of normal size and configuration. EKG's taken at this time tended to indicate some abnormality, but they were read as being within normal limits. *fn2"

 The administrative law judge evaluated the medical evidence as follows:

 "The claimant has alleged inability to work since March 1969 due to a heart condition and ulcers. The Hearing Examiner however, is unable to find support in the evidence of record for the claimant's allegation of disability. The medical evidence does not demonstrate the presence of any significant medically determinable heart disease. She has a diagnosis of heart disease by history only. The clinical and laboratory findings do not show any severe cardiovascular complications. A review of the EKG and X-ray findings fail [sic] to reveal significant cardiac pathology.Thusly while the claimant may be restricted from moderate or arduous physical efforts she retains sufficient residual cardiac ability for light or sedentary physical activity. The claimant's allegation of an ulcer finds no support in the record . . . The medical evidence fails to demonstrate that the ...


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