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PHILLIPS v. DEPARTMENT OF HEALTH EDUC. & WELFARE

June 8, 1978

FLOYD R. PHILLIPS, Plaintiff,
v.
DEPARTMENT OF HEALTH EDUCATION AND WELFARE, Defendant.



The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, D.J.

Plaintiff sustained severe injuries in an automobile accident in January 1973. Seven months later, he began to receive disability insurance benefits under Section 223 of the Social Security Act ("Act"). *fn1" In September 1976, after plaintiff had undergone several operations and months of rehabilitation, the Bureau of Disability Insurance in the Social Security Administration determined that plaintiff was no longer disabled within the meaning of the relevant statutory provisions. Disability benefits ceased in August of that year. A year later, an Administrative Law Judge ("ALJ") upheld the termination of benefits after a hearing; this decision was affirmed by the Appeals Council. Plaintiff filed this action seeking review of the Secretary's decision, pursuant to Section 205 of the Act. *fn2"

 The government now moves for a dismissal of the action on the ground that the Secretary's determination that plaintiff is no longer disabled is supported by substantial evidence and is therefore binding upon this Court. *fn3" After a careful and searching review of the administrative record, the Court concludes that there is substantial evidentiary support for the Secretary's determination and thus the complaint must be dismissed.

 Plaintiff was injured when a car in which he was a passenger struck concrete pillars of the West Side Highway in New York City. He sustained multiple lacerations and comminuted fractures of both legs, the left arm and the jaw. He underwent debridement, open reduction, skeletal traction with Steinman pinning, ostectomy of fragments of the left leg, and a tracheostomy. Plaintiff remained in St. Vincent's Hospital for six months; he then was treated at Burke Rehabilitation Center until October 1973. He has since undergone several operations on his legs and has been receiving outpatient treatment at St. Vincent's Hospital clinics for the last several years.

 After payments had been made to him for almost three years, it was determined that plaintiff's disability had ceased as of June 1, 1976. The disability examiner based the termination decision upon a June 1 medical report from St. Vincent's Hospital which he summarized as stating: "Claimant is ambulatory without any devises [sic]. His range of motion is good and no other operative procedures planed [sic]. Therefore the claim is ceased as of 6/76...." *fn4"

 The ALJ upheld the termination of benefits on the basis of hospital records, several medical evaluations and his own observations during the course of the hearing. Dr. Ruggero Situlin, examining plaintiff on behalf of the New York State Office of Vocational Rehabilitation ("OVR"), found that plaintiff was limited in his ability to walk, stand, stoop, kneel, lift, reach and push -- although these activities were not to be avoided. *fn5" Dr. Situlin recommended an orthopedic examination which was performed by Dr. Fred Hochberg, an orthopedic surgeon, one week later.

 Dr. Hochberg reported that Phillips' left leg was an inch and a half shorter than his right; that he had full range of motion in both hips; that his range of motion in his right knee was to 110 degree and in his left knee to 130 degree; that there was a lack of terminal 10 degree of dorsiflexion of the right ankle as compared to the left; and that there was a full range of motion of all the joints in the arms. Dr. Hochberg's x-rays revealed healed fractures of the femoral shafts, with mild angulation on the right side. Neither the hips nor the lumbosacral spine revealed gross abnormalities. The doctor's opinion was as follows:

 This patient was evaluated orthopedically at my office today and, based upon my findings, I feel he could walk 2-3 blocks at a time; stand for up to 1 hour at a time; lift up to 30 lbs; sit for unlimited periods; bend at a frequency of 1-2 times per hour. No restrictions on grasping or manipulations. *fn6"

 In January 1977, Phillips was examined by Dr. Hennessy for the OVR, who found full range of movement in flexion and extension. *fn7" He recommended continued physiotherapy at home with follow up visits to the St. Vincent clinics. The doctor concluded that plaintiff "will require sedentary working conditions" *fn8"

 The question before this Court is whether the Secretary's determination that plaintiff is no longer disabled is supported by substantial evidence. Under the Social Security Act, the term "disability" means:

 (d)(1)...

 (A) inability to engage 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:

 . . .

 (2) For purposes of paragraph ...


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