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GARDNER v. RICHARDSON

September 26, 1974

EURENE GARDNER
v.
ELLIOT L. RICHARDSON


Ditter, J.


The opinion of the court was delivered by: DITTER

 The claimant, Eurene Gardner, is fifty-four years old. In January, 1959, she and her husband were found unconscious after being overcome by coal gas. Mrs. Gardner spent two and one-half months recovering at Temple University Hospital. Her stay was prolonged by the development of a deep, weeping lesion on her right thigh which eventually responded to medication. The probable cause of the lesion was a burn received during the January accident. Mrs. Gardner was ultimately discharged on April 20, 1959, with a final diagnosis of:

 
Acute brain syndrome secondary to intoxication (probably carbon monoxide poisoning).
 
Pressure sore of the right thigh with secondary infection.
 
Thrombophlebitis.
 
Urinary tract infection.

 Afterwards, plaintiff continued to be treated by Dr. Seymour Guyer, a general practitioner, for pain in her right leg and foot. Beginning in June 1969 and continuing for four months Mrs. Gardner was also treated by Dr. Gerald V. Feldman, a chiropractor. Finally, in August 1969, the plaintiff became an outpatient at Hahnemann Hospital. She was subsequently admitted to Hahnemann twice in 1970 for surgery on her right foot.

 The claimant was examined by Dr. Joseph H. Auday on October 23, 1972. He concluded that Mrs. Gardner showed a marked functional impairment of the lower right leg and would therefore be unable to perform any work involving walking or travelling.

 Mrs. Gardner has a tenth grade education. Prior to 1959 she had been employed as a domestic and as a tomato inspector. Following her hospitalization, she was employed at a shut-in society from 1961 to 1964. She stopped working, however, when the pain in her leg and back precluded even this type of activity. Nevertheless, plaintiff felt well enough after the 1970 operations to attempt a return to work and obtained employment in a Philadelphia hotel. Despite taking pain killers she was unable to complete her assigned work and was eventually discharged.

 Plaintiff applied to the Secretary for disability benefits pursuant to 42 U.S.C. §§ 416(i), 423. After a hearing, the administrative law judge concluded she was not entitled to disability benefits. This decision was affirmed by the Appeals Council. Subsequently this action was begun. On July 18, 1972, I remanded it to the Social Security Administration to consider additional evidence. Although a supplemental hearing was held, the administrative law judge nevertheless reaffirmed the previous finding that the plaintiff was not entitled to disability benefits. His decision was adopted by the Appeals Council, which stands as the final decision of the Secretary. Thereafter, the motions before this Court were filed.

 Plaintiff contends that as a result of the January, 1959, accident she was permanently, totally, and continuously disabled within the meaning of the Social Security Act. *fn1" She states that she was unable to engage in gainful employment from the time she was released from Temple Hospital in April 1959, until within fourteen months of the filing of her application for benefits. Mrs. Gardner argues that the Secretary's decision was not based upon substantial evidence. In fact, she claims that all of the evidence presented at both hearings leads inescapably to the conclusion that as a result of the January, 1959, accident she was disabled as a result of a deformed and partially paralyzed right leg.

 The Secretary found, however, that plaintiff was not so physically impaired as to prevent her from engaging in any substantial employment before September 30, 1959, when her insured status expired. The Secretary, after weighing the testimony and exhibits, decided that Mrs. Gardner had not presented sufficient credible evidence to sustain her burden of proof. Furthermore, the Secretary adopted the statement of a vocational witness that if plaintiff had only a slight impairment in her right leg there were various jobs available locally for which plaintiff would be qualified.

 There is no question that at the present time Mrs. Gardner suffers from a permanent physical impairment that would qualify her for disability benefits. She has an orthopedic impairment of her right leg and foot, exacerbated by degenerative arthritis, resulting in a partially paralyzed right leg. However, the question to be decided by the Secretary was whether plaintiff was sufficiently and continuously impaired so as not to be able to engage in any substantial gainful activity on or before September ...


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