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RESSEGIUE v. SECRETARY OF THE DEPT. OF HEALTH

January 13, 1977

PHILIP RESSEGIUE, Plaintiff,
v.
SECRETARY OF THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE OF THE UNITED STATES, Defendant



The opinion of the court was delivered by: NEAHER

MEMORANDUM OF DECISION

 NEAHER, District Judge.

 This action for judicial review of a denial of Child's Disability Insurance Benefits under the Social Security Act was initially referred to a United States Magistrate to review the administrative record, hear the parties' contentions, and report his recommendations for disposition. See Mathews v. Weber, 423 U.S. 261, 96 S. Ct. 549, 46 L. Ed. 2d 483 (1976). The Magistrate's report has been received together with objections thereto filed by plaintiff's mother, Mrs. Susan Ressegiue, who has represented him throughout the prosecution of his claim except for the hearing before the administrative law judge. *fn1" The Magistrate's report recommended affirmance of the defendant Secretary's determination, but after careful consideration of that report and an independent "searching investigation" of the entire record, the court is persuaded that the Secretary's determination cannot be upheld on the present record.

 The following facts are beyond dispute. The "child" in this case is the nominal plaintiff pro se, Philip Ressegiue, now 31 years of age. He was born on April 27, 1945, and for Social Security purposes attained the age of 18 on April 26, 1963, and the age of 22 on April 26, 1967. His total earnings reported for Social Security purposes amounted to $18.00 as of April 30, 1973, the date his mother filed an application for disability insurance benefits on his behalf.

 Plaintiff's own lack of earnings and continued dependency to date appear unquestionably to be related to a severe juvenile brittle diabetic condition first diagnosed in April 1963, when he was about 18 years old, which concededly has continued to the present time. He was then placed on regular insulin and upon release from the hospital continued attending Brooklyn College on a reduced schedule, taking one or two courses a semester until the spring of 1969, when he discontinued. He has never been gainfully employed, rarely leaves the house, continues to be dependent upon his parents for care and support, and his entitlement to Social Security benefits necessarily depends upon his retired father's earnings record.

 The Magistrate correctly recognized that a reviewing court is bound by the Secretary's findings of fact which are supported by substantial evidence. 42 U.S.C. § 405(g). "Substantial evidence" has been defined as "more than a mere scintilla" and "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). Abiding by that standard does not mean that the court must abdicate its function of review. The court is required to scrutinize the whole record to determine whether the Secretary's findings have rational support in the evidence, and if reliance is placed on one portion of the record in disregard of overbalancing evidence to the contrary, the court may then interfere with the Secretary's conclusion. Hofacker v. Weinberger, 382 F. Supp. 572, 576 (S.D.N.Y. 1974). Furthermore, although the burden of proof of disability is on the claimant for benefits, the court is not bound to sustain the Secretary's denial "where the applicant has raised a serious question and the evidence affords no sufficient basis for the Secretary's negative answer." Kerner v. Flemming, 283 F.2d 916, 922 (2 Cir. 1960).

 In this case the administrative law judge conceded "[there] is absolutely no question that the claimant presently has a severe diabetic problem" and that the problem had its onset in 1963, some four years before the claimant attained his 22nd birthday. Plaintiff would be entitled to Child's Disability Benefits, however, only if there was substantial evidence that prior to his 22nd birthday his diabetic condition disabled him from engaging "in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1). The Social Security Act defines a "physical or mental impairment" as "an impairment that results from anatomical, physiological or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).

 In denying benefits to plaintiff, the Secretary adopted, among others, the following finding of the administrative law judge:

 
"4. The evidence fails to establish that the claimant's impairments were disabling at a time prior to April 26, 1967, when he attained the age of 22."

 The administrative law judge was of the view that the foregoing finding was demonstrated by a "preponderance of the credible evidence." This could only mean that the judge saw relevant evidence in the record which might reasonably be accepted as supporting the conclusion that plaintiff's conceded diabetic condition was not such as to disable him from engaging in substantial gainful activity before his 22nd birthday.

 A word by word reading of the record fails to uncover such evidence. Indeed, the evidence, such as it is, would demonstrate the contrary. True, the plaintiff himself did not appear at the hearing before the administrative law judge, although requested to do so, and has declined to submit to examination by a physician at government expense unless the examination is conducted at home. More will be said about this later.

 The administrative record includes the testimony of plaintiff's mother, documentary evidence consisting of reports prepared by Social Security Administration employees of interviews with the mother, correspondence with hospitals and reports from several physicians who treated plaintiff, and his Brooklyn College transcript. No doctor testified and the administrative law judge did not avail herself of the services of a medical consultant to review and advise concerning the medical reports.

 Plaintiff's treating doctor was Dr. Michael S. Distefano, a general practitioner since 1931, who had retired to Florida about 1970. His report shows that he was the family doctor who had treated plaintiff from infancy. At the time plaintiff was hospitalized in April 1963, it was Dr. Distefano who diagnosed him as having juvenile brittle diabetes mellitis, with complications of hyperexia, furunculosis and acute strep throat. When plaintiff left the hospital the prognosis indicated that his blood sugar levels had been over 220 despite treatment, and that he required a daily injection of 70 units of NPH to be supplemented by regular insulin. He was described as susceptible to systemic (sore throat and tonsilitis) as well as skin and feet infections, that at times he would go into hypoglycemic states for which sugar must be given, and that he had muscular atony with early fatigue. In Dr. Distefano's opinion, plaintiff's condition was permanent "and can only worsen with age. He needs full daily care." In view of these conditions, it was the doctor's further opinion "that, because of the strict and immediate medication as well as the dietary supervision coupled with his general weakened physical condition, this patient is and has been and will be totally incapacitated for the rest of his life."

 The plaintiff was also seen on five occasions between April 16, 1964 and July 17, 1969 by Dr. Yusuf Kologlu, a specialist in internal medicine and cardiovascular disease, whose medical education had been obtained in Turkey and who had practiced in New York since 1962. His report noted complaints by plaintiff of tired feeling and pain and confirmed the diagnosis of diabetes mellitis and variations in blood sugar. Also noted was an increase in plaintiff's dosage of NPH to 80 units and 58 units of an unnamed medication "QID", which means four ...


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