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January 27, 1978

GARY A. McMILLEN, Plaintiff,
JOSEPH A. CALIFANO, JR., Secretary of Health, Education and Welfare, Defendant

The opinion of the court was delivered by: MUNSON


 This is an action brought pursuant to 42 U.S.C. § 405(g) for review of a final decision of the Secretary of Health, Education and Welfare, *fn1" denying plaintiff's application for a period of disability and disability insurance benefits. 42 U.S.C. §§ 416(i), 423. Defendant moves for a judgment on the pleadings or, in the alternative, for summary judgment. Plaintiff cross moves for summary judgment.

 Plaintiff's application for disability insurance benefits was filed on March 2, 1973, alleging disability due to bad ligaments and cords in both ankles plus weakness in the upper right leg. A hearing was held before an Administrative Law Judge after plaintiff's application was denied initially and on reconsideration by the Social Security Administration. The Administrative Law Judge rendered a decision on November 3, 1975, finding that plaintiff was not disabled within the meaning of the Social Security Act. This decision was affirmed by the Appeals Counsel on October 1, 1976.

 Plaintiff is thirty years old and has completed one year of college. After serving approximately four years in the Coast Guard, plaintiff went to work as a supermarket manager. While working at this job, he started falling down and injured his legs and, therefore, quit the job in early 1970, on the advice of his physician. Plaintiff then obtained leg braces and went to work as an assistant manager for a drug store. After working there for approximately four months, he left because the pay was inadequate and because he felt that he could not take the walking. Plaintiff subsequently obtained employment as a foreman in the recreation department for the City of Cortland where he did bookkeeping, kept the payroll and supervised the summer help. He left this job in September or October of 1972 to enter a hospital for corrective surgery. *fn2"

 Plaintiff was admitted to Syracuse Veterans Administration Hospital on January 9, 1973, where his condition was diagnosed as bilateral ankle instability. His left ankle was found to open into a significant inversion, and his right ankle and right knee were found to give way occasionally causing the plaintiff to fall. On January 11, 1973, an Elmsley procedure was performed on plaintiff's left ankle. Five days later, plaintiff was discharged in a cast and on crutches. According to plaintiff's testimony, he remained in the cast until May or June and continued to use the crutches for another six to eight weeks after that.

 Plaintiff was re-admitted to the Syracuse Veterans Administration Hospital on April 1, 1973. His condition was diagnosed as right ankle instability and backknee deformity of the right knee. It was decided that it would not be advisable to perform a reconstructive procedure on his right ankle at that time and he was, therefore, discharged on April 5, 1973. The hospital report upon his discharge stated that plaintiff was given a knee cage for his right knee, was placed on a diet, and would be allowed to return to work.

 On June 6, 1973, plaintiff went to work for the Smith Corona Company where he did accounting, purchasing, and bookkeeping work. He worked there until December 24, 1973, but testified that he missed about two and one-half months because of pneumonia and leg difficulties. He left this job because he injured his right leg when he fell and bumped into the stairs on Christmas Eve. Black spots developed on his leg and his condition was subsequently diagnosed as cellulitis.

 In early January, 1974, plaintiff entered the Syracuse Veterans Administration Hospital. He was later transferred to the Buffalo Veterans Administration Hospital *fn3" where his condition was diagnosed as right ankle instability, malocclusion and inadequate occlusion, and a possible pituitary tumor. A Watson-Jones procedure was tentatively scheduled, but the surgery was cancelled after a pituitary tumor was ruled out. Plaintiff was, therefore, discharged on May 20, 1974, but was re-admitted to the same hospital on June 9, 1974. On June 11, 1974, an Evans reconstruction was performed on plaintiff's right ankle. He was discharged on crutches on June 14, 1974, in good condition, but the hospital summary report stated that plaintiff was not employable at that time. A memorandum from Dr. Ungerer, dated June 26, 1974, said that the plaintiff was still disabled and that his employability date was not yet determined.

 Plaintiff testified that he was not released for work by Dr. Ungerer until December 2, 1974. He also said that he had oral surgery performed at the Cortland Hospital on December 8, 1974, and was not released by the oral surgeon until December 17, 1974. The Administrative Law Judge noted, in his decision, that there is no medical evidence in the record to substantiate these release dates.

 On December 17, 1974, plaintiff returned to work as an assembly line worker at Smith Corona, but was dissatisfied with this job since it was harder work and paid less than his former position with the company. He quit on August 1, 1975, because the company refused to give him his old job back and because he was afraid that he would injure his leg.

 Plaintiff testified that before surgery had been performed on both of his legs, he had a great deal of trouble standing or sitting, as his legs would become numb. On the other hand, he stated that, at the time of the hearing, he no longer had trouble walking on a flat even plane, but still wore a short leg brace when his leg felt badly.

 Dr. Allen Speiser, a vocational expert, also testified at the hearing. He indicated that, in his opinion, the plaintiff was unable to engage in substantial gainful employment during the period of time in question. He said:

Based upon the claimant's age, educational background, previous military and civilian work experience and other testimony in the record and as presented this morning, it is my opinion that Mr. McMillen should have been able to sustain gainful employment. However, based upon the medical hospitalizations and medical complaints, continuous employment, would in my opinion, be difficult to maintain. So, that I would say in the final analysis, during the period of record, that although there are jobs in the economy that the claimant could fulfill from the factors mentioned, that because of his unavailability on a continuous basis, he would not be able to maintain gainful work.

 On the other hand, Dr. Speiser felt that, at the time of the hearing, the plaintiff was capable of maintaining ...

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