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HAVERLY v. COHEN

March 30, 1970

Marie HAVERLY
v.
Wilbur J. COHEN


Higginbotham, District Judge.


The opinion of the court was delivered by: HIGGINBOTHAM

I.

 This is a suit under Section 205(g) of the Social Security Act, as amended 42 U.S.C.A. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare (hereinafter "HEW") adverse to plaintiff. Defendant has moved for summary judgment as has plaintiff by a motion filed February 2, 1970. There was argument before the Court and both parties have filed briefs.

 On June 12, 1967, the plaintiff filed an application for disability insurance benefits. This was supplemented by a second application filed two days later. Plaintiff sought to qualify for disability benefits under the following definition of disability contained in sections 216(i) (1) and 223(c) (2) of the Social Security Act, as amended 42 U.S.C.A. § 416(i)(1) and 423(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."

 In answer to the question, "What is your disability?" plaintiff replied: "Orthopedic Surgery also Kidney infection." Plaintiff stated that because of her disability she became unable to work on January 11, 1967.

 On November 30, 1967, a Disability Determination was issued by HEW. It was determined that the plaintiff was not under a disability and that she "would be capable of returning to her former occupation as a solderer * * * on or before 1-10-68." [sic 1967]. Since impairment was not expected to last more than twelve months, plaintiff was found not to be under a disability. Plaintiff's application for disability insurance benefits was denied by letter dated December 7, 1967.

 Plaintiff's Request for Reconsideration was determined adversely to her by letter of February 6, 1968. The Director of the Division of Reconsideration stated in part: "On January 17, 1968, you did resume work. Although you were not employed for more than twelve months, it is determined that during the latter part of this time you were capable of employment."

 Thereafter, plaintiff requested and was granted a hearing which took place on April 18, 1968. In a six page decision dated May 22, 1968, the hearing examiner concluded that plaintiff was not entitled to disability insurance benefits. Plaintiff's request for review of the hearing examiner's decision was denied on July 22, 1968, whereupon the hearing examiner's decision became the final decision of the Secretary of HEW, subject to judicial review in this Court.

 II.

 Both parties agree that the sole issue for my determination is whether there is substantial evidence in the record to support the decision of the Secretary that the plaintiff failed to establish that she had become disabled within the meaning of the Social Security Act as amended. Was there substantial evidence in the record to support the Secretary in his decision that plaintiff was not suffering an impairment or combination of impairments which could be expected to result in death or which had lasted or could be expected to last for a continuous period of not less than twelve months?

 The hearing examiner found that plaintiff had a "combination of impairments which precluded her from working, during the period from January 11, 1967 to September, 1967, the approximate date laboratory and clinical tests revealed no evidence of active tuberculous infection." But the record is totally lacking in any, let alone substantial evidence to support this finding.

 In the file I find a letter from Dr. John E. Hoffman, M.D., under date of October 24, 1967. He states that plaintiff "is taking Streptomycin by injection * * * twice weekly, she is on PAS tablets * * * 3 times daily, she is also on INH taking tablets * * * 3 times a day * * *." Dr. Hoffman concludes: "at this time I believe that the patient could not rightfully return to her employment as previously outlined because of the continued therapy for her tuberculous infection."

 In answer to questions propounded by the Disability Determination section of the Bureau of Vocational Rehabilitation, Dr. Lawrence Horowitz, M.D., sometime after November 15, 1967, stated: "PT [patient] remains symptomatic re pain but culture is negative." The government's heavy reliance on the negative laboratory tests is misplaced. Clinical symptomatology of renal tuberculosis continued to exist after November 15, 1967. In the Report of Contact of the Allentown District Office of the Social Security ...


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