The opinion of the court was delivered by: EGAN
On June 13, 1957, the plaintiff filed with the Bureau of Old-Age and Survivors Insurance of the Social Security Administration, Department of Health, Education and Welfare, applications to establish a period of disability and for disability insurance benefits, under Sections 216(i) and 223, respectively, of the Social Security Act
as amended (the Act), 42 U.S.C.A. §§ 416(i), 423, which were disallowed by decision of the Referee on January 30, 1959. The Appeals Council denied plaintiff's request for review of the Referee's decision on September 3, 1959 and this, of course, becomes the official act of the Secretary. This proceeding was then instituted for review under Section 205(g) of the Act, 42 U.S.C.A. § 405(g), and the Secretary, as is required by the Act, was named as the defendant.
Both sides move for summary judgment.
Plaintiff was born on October 30, 1902. She has an 8th grade education. Her left ankle was crippled by polio at age 5. She had been employed as a power sewing machine operator making ladies' handbags since 1934 and continued to do that type of work until the date of her incapacity in June 1956, a period of about 22 years.
Plaintiff avers that 'since June of 1956 until the present date she has not and cannot perform or engage in any substantial gainful activity since she is under constant and crippling pain as a result of a physical disability and illness involving her lower back and entire left side of her body from her hip to her left foot * * *.'
Plaintiff had been under the care of her family physician, Dr. Max Mann, for almost 25 years. He referred her to Dr. William Gash, an orthopedic surgeon, who performed an operation on her left ankle at the Albert Einstein Medical Center. What happened at the time is well described in the Referee's decision as follows:
'About a year after she terminated her employment, she was admitted to the Albert Einstein Medical Hospital with a complaint of weakness and instability of the left foot and ankle. The condition was apparently life-long and was a residual of poliomyelities contracted at the age of five. In June 1957 a triple arthrodesis of the left ankle was performed. She was readmitted on October 8, 1957, and the foot was recast. The third and last admission was on March 28, 1958, for the removal of plaster cast and follow-up for the triple arthrodesis of the left ankle joint. X-ray reveals fusion of tarsals but not of the ankle joint. The report states: 'Clinically, she has a stable foot and ankle. She is to be measured for an ankle brace. Discharged to care of referring physician. (William Gash, M.D.)'
'Thus, it would appear for approximately a year this claimant was immobilized because of surgical treatment for instability of the left foot and ankle. The medical reports indicate that the arthrodesis was reasonably successful, although there are indications that the claimant needs a cane to assist her in walking. However, the attending surgeon is of the opinion that the claimant is ambulatory with the aid of crutches, and that in his opinion she is not employable because it would be difficult for her to travel, and furthermore that she cannot work because of low back pain. The surgeon stated that the operation resulted in the solid fusion of the foot but not in the ankle joint.'
With respect to Mrs. Ferricks' condition, Doctor Gash certified:
'This is to certify that Mrs. Mable Ferricks was operated on by me on June 1, 1957 for a deformity of the left foot which was the result of an ancient poliomyelitis. A stabilization operation was performed which resulted in a sold fusion of the foot but not of the ankle joint. She is ambulatory with the aid of crutches and will continue to do so the rest of her life. In addition, she has an unstable lumbosacral joint.
'In my opinion she is not employable because it would be difficult for her to travel to any point of employment and she cannot sit long because of her low back disability.'
As opposed to plaintiff's positive medical evidence, we find the following in the Referee's decision:
'The consultative physician states that the patient's subjective complaints in relation to low back pain appear to outweigh objective findings, despite X-ray evidence of mild facet or apophyseal joint arthritis. The intervertebral disc spaces are well preserved. There is no neurological evidence of herniated disc in that knee and ankle jerks are equal and active and straight leg raising is negative on right at 95 degrees and on the left refers only to thigh and buttocks at 100 degrees without referral to low back. Atrophy of left lower extremity is related to either poliomyelitis or long-period of plaster immobilization for triple arthrodesis or from both factors.
'The consultative physician concludes that 'Patient is ambulatory for passage to and from work. Cane is used for assistance because of triple arthrodesis and for additional support. Low back disability should not prevent sedentary work. No prosthesis is required.' The consultative ...