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December 13, 1983


The opinion of the court was delivered by: BRODERICK




 This is an action to set aside a determination by the Secretary of Health and Human Services denying plaintiff disability benefits. Both parties moved for judgment on the pleadings. I assigned the matter to Magistrate Washington to hear and report.

 Magistrate Washington prepared a report and recommendation dated April 8, 1983, in which she recommended reversal of the Secretary's decision, the granting of the application for disability benefits, and a remand to the Secretary for further action consistent with that recommendation -- e.g., calculation of benefits.

 At the behest of the Secretary, I stayed consideration of the Magistrate's recommendation pending the review by the Supreme Court of the Second Circuit's decision in Campbell v. Secretary of HHS, 665 F.2d 48 (1981), cert. granted, 457 U.S. 1131, 102 S. Ct. 2956, 73 L. Ed. 2d 1348 (1982). That case has now been decided, Heckler v. Campbell, 461 U.S. 458, 103 S. Ct. 1952, 76 L. Ed. 2d 66 (1983).


 When an objection is made to a magistrate's report, the district judge is required to make a de novo review (28 U.S.C. § 636(b)(1)(C)). See also Smith v. Secretary of HHS, 544 F. Supp. 63 (S.D. Ohio 1982). So far as the final decision of the Secretary is concerned, it "is the function of this court not to make a de novo determination but to decide whether the Secretary's finding is supported by substantial evidence." Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978); see also Gold v. Secretary of H.E.W., 463 F.2d 38, 41 (2d Cir. 1972); 42 U.S.C. § 405(g). "Substantial evidence" means "more than a mere scintilla. It 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)).

 I have made such a review. I find that the Secretary's determination that plaintiff is not disabled is not supported by substantial evidence. Magistrate Washington's recommendation is adopted, for the reasons set forth below. Plaintiff's motion for judgment on the pleadings is granted. The matter is remanded to the Secretary for the purpose of calculating the benefits due to plaintiff.


 Plaintiff Eugene Bayersdorfer is a 54 year old male who lives with his wife and three sons in Putnam County. He has a ninth grade education.

 Prior to the hospitalization which led to his claim for disability plaintiff had had a consistent work history, and up to a month before his hospitalization he had never been unemployed. Plaintiff served in the armed forces from March, 1948 to October, 1948. He then worked unloading heavy equipment and accessories from freight cars. He was recalled into the army for a 13-month stint in 1950 and 1951. Thereafter he did maintenance work, involving moving furniture and constructing and taking down walls. In 1953 he went to work for a grocery chain: that job lasted some 20 years. His last position with that employer, that of grocery selector, entailed lifting crates and other packages onto trucks.

 In 1973 plaintiff accepted a position with another grocery chain as a warehouse supervisor. This job required supervising approximately 50 employees in the loading of delivery trucks, and called for plaintiff's presence on the loading docks for a substantial part of each working day, placing seals on loaded trailers and opening the doors of other trailers to inspect their contents.

 Plaintiff was laid off from this job in February, 1979. He immediately sought new employment, visiting five or six prospective employers and bringing his resume.

 On March 2, 1979, plaintiff was admitted to Putnam County Hospital after experiencing retrosternal pain. An initial electrocardiogram "showed sinus bradycardia and ST-T wave changes compatible with acute anterior wall myocardial infarction." A temporary pacemaker was inserted after he suffered several episodes of bradycardia. The pacemaker was removed three or four days later. He was discharged on March 28, with the following final diagnosis prepared by his attending physician, Dr. Chang, "ARTERIOSCLEROTIC HEART DISEASE, ACUTE MYOCARDIAL INFARCTION, STATUS POST TEMPORARY INSERTION OF TRANSVENOUS PACEMAKER FOR BRADYCARDIA. STATUS POST INGUINAL HERNIORRHAPHY, REMOTE."

 In April, 1979 plaintiff filed an application for disability benefits, alleging he had been disabled since March 2 as the result of a heart attack. Following denial of this application based on the determination that his disability would not last a year, plaintiff filed a request for reconsideration on October 10, 1979. Upon reconsideration his application was again denied.

 Plaintiff requested a hearing, which was held before an Administrative Law Judge ("ALJ") on December 17, 1979. The only witnesses who testified at the hearing were plaintiff and his wife. Plaintiff was represented by counsel.

 On April 7, 1980 the ALJ rendered his opinion, deciding that while the plaintiff had net the earnings requirements of the Social Security Act for purposes of entitlement to disability benefits, plaintiff was not disabled. His ...

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