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TWARDESKY v. WEINBERGER

January 14, 1976

Regina J. TWARDESKY
v.
Caspar WEINBERGER, Secretary of the Department of Health, Education and Welfare



The opinion of the court was delivered by: WILLSON

 WILLSON, Senior District Judge.

 This action is pursuant to 42 U.S.C.A. § 405(g), seeking review of a final decision of the Secretary of Health, Education and Welfare, which held that the plaintiff was not entitled to a period of disability or disability insurance benefits under the Social Security Act.

 Both parties have filed a motion for summary judgment pursuant to Rule 56. Counsel have been heard in oral argument and briefs have been submitted. The only issue to be decided is whether the decision of the administrative law judge, which became the final decision of the Secretary, was supported by substantial evidence.

 Plaintiff filed an application for a period of disability and for disability insurance benefits on October 30, 1973, alleging that she became unable to work on August 3, 1973, at age 47. The application was denied initially and upon reconsideration by the Bureau of Disability Insurance of the Social Security Administration, after the Pennsylvania State Agency, upon evaluation of the evidence by a physician and a disability examiner, had found that plaintiff was not under a disability. The administrative law judge, before whom plaintiff, her attorney and a vocational expert appeared, considered the case de novo, and on October 31, 1974, found that plaintiff was not under a disability. This decision became the final decision of the Secretary when the Appeals Council approved the decision on February 5, 1975.

 The basic facts, adduced from the testimony and evidence before the administrative law judge, are not in dispute. Plaintiff was born on February 25, 1926, is unmarried and has an eighth grade education. She presently lives with her sister and brother-in-law next door to her married daughter. Other than part time work as a clerk in a store, plaintiff's sole occupation for thirty years has been as a presser in dry cleaning plants. Her job consisted of operating a pressing machine and other types of irons, carrying bundles of clothing and hanging the pressed clothes on a line.

 The records of Uniontown Hospital show plaintiff was admitted for pelvic surgery on January 8, 1973. On January 9, 1973, Dr. James G. Zaidan, a general surgeon who had been plaintiff's personal physician since 1956, performed a repair of a large cystocele, a total abdominal hysterectomy and release of intestinal adhesions. Shortly afterward, plaintiff experienced a left lung atelectasis and was placed in the intensive care unit. Her condition improved and by January 24, 1973, she had recovered sufficiently to be discharged in good condition. Plaintiff was able to return to work on April 16th and continued to work until August 3rd to have hernia surgery. On August 6, 1973, plaintiff was readmitted for repair of an incisional hernia which had developed in her lower abdomen. Dr. Zaidan operated on August 9th and plaintiff made an uneventful recovery. Chest x-rays showed her lungs were clear of any active disease. Plaintiff was discharged on August 22, 1973, in good condition. She has not returned to work since that time.

 Dr. Zaidan reported on November 15, 1973, that plaintiff was improving but unable to work for fear of recurrence of the hernia. He noted that she had a history of Grave's Disease (goiter) which had been treated with radioactive iodine. He considered her a poor risk for further surgery and indicated that heavy lifting, prolonged standing and "practically any kind of job would be detrimental." In a report dated April 6, 1974, Dr. Zaidan related the same general information, but, in addition, stated plaintiff's thyroid condition was under control. In a letter dated August 28, 1974, Dr. Zaidan listed some of plaintiff's medical history and concluded by stating that he felt she would not be a good risk for surgery due to previous complications and he felt she was totally disabled. No objective findings accompanied this opinion. In a similar letter, dated October 8, 1974, Dr. Zaidan again cited some of plaintiff's medical history, adding that she also had a chronic lung condition and chronic cough. He repeated his opinion that plaintiff was completely disabled.

 Plaintiff also testified that she gets weak in her knees if she stands too long and experiences pain and numbness in her side if she sits too long. The pain and numbness can be relieved only if she puts ice on it or gets up and moves about. When plaintiff turns to the right she gets a cramp across her chest and back. She also experiences pressure in the back of her head, which is only relieved when she lies down, and her stomach swells every day.

 Her daily activities consist of washing the dishes, making her bed, straightening up the bathroom, and folding the laundry. She owns a car but only drives when necessary. She goes shopping with members of her family but carries nothing heavier than a loaf of bread. Plaintiff goes to church about once a month and occasionally baby-sits for her daughter next door provided that her sister is at home in case she needs assistance with an emergency. Plaintiff sees her physician about every six months but calls him more often if necessary. Plaintiff estimates that she can stand for about an hour and sit for about one-half hour without discomfort.

 Noel A. Plummer, Ph. D., a vocational expert, appeared at the hearing by request of the administrative law judge. He was asked if there was any substantial gainful employment in plaintiff's area that she could perform, assuming she could do no heavy lifting or prolonged standing, but could do sedentary work. He testified there were such jobs in the area in substantial numbers and cited such work as painting or applying decals to dinnerware, ticket seller at a movie or parking lot, garment examiner and merchandise marker. He described these jobs as sedentary, permitting alternate sitting and standing. However, Dr. Plummer then testified that assuming plaintiff's entire symptomatology as she described it in her testimony and considering her age, education and work background he believed that she would not be able to engage in any substantial gainful work. He went on to say that the recurrence of her symptomatology and the things that are required for these to be relieved are such that she would not be able to stay at a given job for any considerable length of time. On top of that, the prospective employer, knowing her medical history and prospective operation, would be unlikely to hire her.

 The duty of this Court is to determine whether there was substantial evidence in the record to support the finding of the Secretary that plaintiff retained the residual functional capacity to engage in substantial gainful employment. The test for disability is principally a two-step process: (1) a determination of the extent of the physical or mental impairment and (2) a determination whether that impairment results in an inability to engage in any substantial gainful activity. Hodgson v. Celebrezze, 312 F.2d 260 (3rd Cir. 1963).

 In his decision, the Secretary concedes that plaintiff suffers from an impairment. There is no doubt that plaintiff suffers from some pain and discomfort and that she has certain physical limitations. The Secretary agreed that she is unable to return to her former work in the cleaning plant, which requires a fair amount of strenuous physical exertion. Nevertheless, the Secretary found that with ...


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