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THORN v. CELEBREZZE

February 27, 1963

Anthony Obert THORN
v.
Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare



The opinion of the court was delivered by: LORD, III

This is an action under section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), to review the final decision of the Secretary of Health, Education and Welfare denying plaintiff's application for establishment of a period of disability under section 216(i) of the Act, 42 U.S.C.A. § 416(i), and for monthly disability insurance benefits under section 223 of the Act, 42 U.S.C.A. § 423. Plaintiff's insured status under the Act expired September 30, 1957. He seeks a so-called 'disability freeze' (see Kerner v. Flemming, 283 F.2d 916, 918 (C.A.2, 1960)). Hence, the question is whether 'disability' within the meaning of the Act existed before September 30, 1957. The Hearing Examiner, whose findings were adopted by the Secretary, found that it did not.

The scope of my review is, of course, to determine whether 'the findings of the Secretary' are 'supported by substantial evidence.' 42 U.S.C.A. § 405(g); Goldman v. Folsom, 246 F.2d 776, 778 (C.A.3, 1957). The resolution of this question depends largely upon an analysis of the medical evidence submitted, placed against the plaintiff's own medical and personal background.

 Plaintiff was born on July 25, 1900, and completed one year of high school. (Tr. 40, 62) *fn1" His occupation was general carpenter. He was employed by a department store for 25 years in that capacity. (Tr. 40-42) Plaintiff asserts that he sustained permanent injuries as the result of an industrial accident on March 9, 1951, when his shoulder was struck by the door of a freight elevator. (Tr. 42-43, 106) He returned to work after three days and continued to work on the same job for 16 months after the accident, receiving the same rate of pay of $ 116. a week. (Tr. 120) On July 9, 1952, he obtained a leave of absence from his employer for the purpose of receiving treatment at a hospital. He has not returned to his former job nor has he sought other employment after July 9, 1952.

 Plaintiff was awarded compensation by the Pennsylvania Workmen's Compensation Board at the rate of $ 25 per week retroactive to July 16, 1952. (Tr. 209-212) Compensation payments ceased in 1960 after he had exhausted his rights thereto.

 Plaintiff lives with his wife in a six room house. (Tr. 45) His wife is employed full time. (Tr. 45) Plaintiff is ambulatory, takes care of his personal needs, and travels about by using public transportation. (Tr. 45-46) Plaintiff's testimony at the hearing with respect to his symptoms consists essentially of complaints of pain in his knees, shoulders and chest, he also takes nitroglycerine pills for the heart. (Tr. 46) He carries a cane and wears braces on both legs. (Tr. 51-53).

 The earliest medical evidence is the record of his hospitalization on July 11, 1952, for ten days. His condition was diagnosed by the hospital as traumatic arthritis and adhesive capsulitis of the right shoulder. *fn2" (Tr. 69-161) Within a short time thereafter, plaintiff was readmitted to the hospital and remedial surgery was performed on October 28, 1952, to reduce the shoulder inflammation. He was discharged as recovered, with a finding that 'shoulder motion has improved.' (Tr. 69) His attending physician, Dr. Seifer, expressed the opinion in April, 1953, that notwithstanding the improvement of motion in the right shoulder, the patient is permanently disabled and the original injury is the direct cause thereof. (Tr. 69).

 On October 30, 1956, plaintiff commenced a course of treatment with a general practitioner, Dr. Silk, which continued until February, 1960. Dr. Silk diagnosed the condition as traumatic arthritis of the right shoulder and knees and administered exercise (physiotherapy) and heat (diathermy). (Tr. 67-68; 74; 79-80) On July 11, 1957, Dr. Silk reported that plaintiff was semi-ambulatory, had difficulty in walking secondary to injury of March 9, 1951, was suffering from traumatic arthritis, that he had advised plaintiff not to work and that his condition was static. (Tr. 67).

 'Mr. Anthony Obert-Thorn has been under my care since September 1956, suffering from an incapacitating traumatic arthritis, secondary to an injury in 1951.

 'At the present time he is totally disabled.'

 This is all of the medical evidence that relates directly to the period before September 30, 1957, and if this were the only evidence in the case, it would be impossible to conclude that the Secretary's finding adverse to plaintiff was supported by substantial evidence.

 However, on December 12, 1957, -- less than two and one-half months after the critical date, -- plaintiff was examined by Dr. A. M. Rechtman for the Government. Dr. Rechtman concluded (Tr. 72):

 '* * * This man undoubtedly has changes in the right shoulder characteristic of an adhesive capsulitis. There is also some restriction noted in the hand and knee. While this undoubtedly is true, there is obviously a tremendous functional element and gross exaggeration on the patient's part. We believe that his work potential as a carpenter is nil and for rehabilitation to be accomplished one would ...


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