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June 20, 1984

MANDEVILLE FROST, Plaintiff, against MARGARET M. HECKLER, Secretary of Health and Human Services, Defendant.

The opinion of the court was delivered by: COOPER


Plaintiff, Mandeville Frost, seeks review of the decision of the Secretary of Health and Human Services terminating his disability insurance benefits following a most debilitating accident, as provided by Social Security Act §§ 216(i) and 223, 42 U.S.C. §§ 416(i) and 423. After fully exhausting his administrative remedies, including a hearing before an Administrative Law Judge (ALJ) and an additional adverse decision by the Appeals Council, plaintiff brought this action before us under section 205(g) of the Act, 42 U.S.C. § 405(g), seeking judicial review of the Secretary's determination. Both parties now move for judgment on the pleadings.

 The Facts

 The following pertinent evidence was adduced from the transcript of the administrative record in this case.

 Plaintiff was born on January 1, 1938, and was 43 years of age at the time of the 1981 hearing. He attended Princeton University while on a baseball scholarship, majoring in English.He went to the University of Virginia Law School, wrote for one of the legal publications, and following graduation he was hired as an associate by Robert Marvin, Esquire. From 1965 until 1979, he practiced law in upstate Rhinebeck, New York; Mr. Marvin made him a full partner in the firm in 1978. Although he specialized primarily in real estate and zoning matters, plaintiff also engaged in some litigation and estate work. According to all accounts, a picture was painted of an exceptionally gifted and talented young man with a happy home life.

 His friend, the man who made him partner, Robert Marvin, stated at the hearing that plaintiff had been "a very brilliant scholarly lawyer with excellent background and training" and was "an extremely articulate young man" before the accident. Plaintiff's fine reputation is further reflected in psychologist Dr. David Crenshaw's description of plaintiff as "a prominent and highly regarded attorney in this small [Rhinebeck] community . . . well known and highly respected . . . [h]e was also well known in this comunity for being an exceptional athlete, and therefore possessing, in addition to his intellectual gifts, tremendous physical skills as well."

 Indeed, the record is replete with references to his pre-accident physical prowess and exceptional coordination -- he was the number one top seeded tennis player for his age at the nearby Poughkeepsie tennis club; he skied avidly; and he was also an excellent trout fisherman. In summary, he was the all-around sportsman. It appears that he additionally enjoyed the blessing of a happy marriage and was the father of three young children who were about 16, 15 and 8 years of age at the time of the hearing. The Frost family lived on about ten acres of land, the residence occupying approximately two acres.

 This storybook lifestyle altered abruptly at 1:30 a.m. on May 26, 1979 when plaintiff was involved in a tragic auto accident over the Memorial Day weekend. Rushed to the emergency room at Northern Dutchess Hospital with multiple severe injuries including advanced respiratory distress, plaintiff suffered laceration of the liver and the hepatic artery and vein, a herniated diaphragm, reptured bowel and spleen, traumatic encephalopathy (head injuries), and a cardiac arrest followed by an anoxic brain episode (absence of oxygen to the brain). The ensuing hospital course included surgeries extending until July 6, 1979, when plaintiff was discharged and transferred for rehabilitation to the Burke Rehabilitation Center in White Plains, New York.

 Upon admission to the Center, he was examined by Dr. Walter Reichert, the neurologist in charge of the Head Trauma Service, who found plaintiff to have status post closed head injuries, multiple internal injuries and post-surgical repair of same, and a history of hypertension secondary to cardiac arrest and hemorraghic shock resulting from the anoxic brain episode. Following this diagnosis, Dr. Reichert recommended a finding of disability under the Social Security law.

 Plaintiff filed for disability benefits on August 8, 1979. After being examined for the Social Security Administration (SSA) by a review physician, who stated in his written evaluation of August 20, 1979 that "[c]laimant will be disabled for at least one year," plaintiff's application was granted. Thereafter, he received $996 a month in disability insurance benefits.

 The SSA, through the Bureau of Disability Determinations of the State of New York (the Bureau) undertook periodic reviews of his condition pursuant to their internal policy. On June 9, 1980, the Bureau notified plaintiff they had determined that his eligibility for disability benefits had ceased as of March, 1980. Upon reconsideration, the Bureau affirmed this initial determination but extended his eligibility to May 31, 1980 by a letter dated November 24, 1980.

 Approximately a year later, an administrative hearing was held before ALJ Arthur E. Neubauer on November 4, 1981. Plaintiff was represented by counsel, Mr. Marvin, his friend and former law partner. The ALJ considered the case de novo, heard the testimony of both the plaintiff and his attorney, and reviewed the medical reports filed by treating and non-treating physicians, including neurologists, psychiatrists, psychologists, and neuropsychologists.

 Plaintiff testified on his own behalf that he received memory training and psychological treatment from both Dr. Richard Kovner and Dr. Steven Mattis, neuropsychologists at Montefiore Hospital in New York City. He complained of continuing problems with his balance, his handwriting disability, his failure to remember appointments or directions or where he had parked his car. Although plaintiff felt he could walk normally, if someone brushed up against him he would "tip over." Questioned about his physical status, plaintiff responded that he could drive with the directions tacked up in the windshield, and that he could "rak[e] leaves and [do] stuff around the house as best I can, but, you know, that's a trouble.I can't seem to keep my mower going." He later expanded that he had mowed the lawn on a rider mower which had tipped over on one occasion. Once a week, he would attempt to hit tennis balls over the net with the aid of a tennis pro at the tennis club where he had once been top seed; apparently, this was a form of therapy as he was unable to consistently get the balls over the net.

 He engaged in some mental exercise by virtue of a volunteer project suggested by his former partner, Mr. Marvin: three days a week he would drive to a local title company where he would re-trace a real estate title search. These searches were previously done by title company employees, and in stark contrast to his ...

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