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SMIRGA v. SECRETARY OF HHS

April 30, 1985

DAVID SMIRGA, Plaintiff
v.
SECRETARY OF HEALTH And HUMAN SERVICES, Defendant


Louis Rosenberg, United States District Judge.


The opinion of the court was delivered by: ROSENBERG

LOUIS ROSENBERG, UNITED STATES DISTRICT JUDGE

 This matter is before me on an appeal from the Secretary of Health and Human Services and from the decision of the Administrative Law Judge dated November 30, 1982, and after the Appeals Council accepted the decision of the Secretary as final on June 6, 1983.

 The administrative law judge in denying the plaintiff's claim for compensation found that the plaintiff, David Smirga, suffered from Fong's Syndrome and low back syndrome. He also found that although the plaintiff was not capable of performing his past relevant work which was of an unskilled nature and in the medium to heavy exertional level, the plaintiff could perform sedentary work, and therefore, he found that the plaintiff was not entitled to disability insurance benefits. The Appeals Council and the Secretary sustained the administrative law judge's decision.

 The plaintiff was injured on January 9, 1979 after a fall down icy steps at his place of employment. From that time on he suffered variously and was hospitalized at Montefiore Hospital from May 14 to 17, 1980 for lumbar disc syndrome. The results of a lumbar myelogram were within normal limits.

 Dr. Joseph Novak, a specialist in physical medicine, reported the plaintiff to be in obvious misery due to low back pain of unknown etiology with a limited range of motion and possibility of L5-S1 radiculopathy; that the lumbar lordosis was completely flattened; and that there was muscle spasm on both sides in the rectus spinae muscles. This was reported by Dr. Novak on October 10, 1980.

 From November 16 to December 5, 1980, the plaintiff was hospitalized at St. Francis General Hospital, where a myelogram suggested Fong's Syndrome. A lumbosacral spine showed slight lumbar scoliosis with convexity to the right and small marginal osteophytes visible in the lumbar spine. X-rays showed a limited range of motion. Posterior iliac horns were visible bilaterally.

 On December 12, 1980, Dr. Novak reported that the plaintiff had been evaluated in the rehabilitation center and it was his opinion that "the patient can only perform full-time light work with maximum of 10 pounds of lifting, carrying 10 pound articles from one place to another." He felt the plaintiff should receive a job where he could sit, stand and walk or move around at his discretion. He further stated that the plaintiff should not be required to climb, crawl or squat. Dr. Novak's recommendation did not preclude the plaintiff's performing sedentary work as indicated by the magistrate to whom the matter had been originally referred and within the provisions of 20 CFR § 404.1567(a). *fn1"

 Dr. Novak again reported on June 8, 1981 that the plaintiff "should be encouraged to accept a light duty job and if one is available, that would be the best solution for this patient's problems", and advised the plaintiff there was nothing else he could do for him and he was discharging him from his care.

 On January 24 to January 30, 1982, the plaintiff was hospitalized at the East Suburban Health System for lumbar myelogram which was interpreted as normal, but bilateral iliac horns were noted. He was again hospitalized at East Suburban from March 25 to March 30, 1982, where he underwent surgery for resection of the anterior horns from the right iliac wing due to his Fong's disease, by Dr. M. A. Tranovich, an orthopedic surgeon.

 On April 30, 1982, Dr. Roy S. Temeles, an orthopedic surgeon, reported that his examination revealed no paravertebral muscle spasm while moving about, and that X-rays from the Montefiore Hospital revealed "strange bony spurs on both ilia which had been labeled "Fong's Syndrome".

 Dr. Temeles commented further that "he had never before heard of this syndrome and was unable to find a reference to it in his office library" and ". . . that he felt plaintiff had been made a medical invalid by his experience with the medical profession rather than with any traumatic disease reportedly acquired". He also felt "plaintiff was capable of working in his former capacity without limitation". He felt "plaintiff's syndrome could be investigated while he was busy earning a living for himself and his family, as he did prior to the revelations of the Montefiore X-ray Department". Dr. Temeles also felt a label had been hung on this individual.

 On May 20, 1982, Dr. Michael A. Tranovich, an orthopedic surgeon first saw the plaintiff when he was called as a consultant during the plaintiff's hospitalization with low back and iliac wing pain. He reported that the plaintiff "is a victim of a congenital anomaly known as Fong's Syndrome which is a very intrapatellar nail dysplasia. The consequence of this is that he had numerous abnormalities of joints of his body".

 But Dr. Tranovich does not say that he took X-rays or made an X-ray examination, but that he had resected anterior horns from the right iliac wing due to his Fong's disease on March 25, 1982 and stated he felt it was reasonable to assume that the plaintiff would be disabled from his joint problems, but he would be able to perform sedentary work; and that the plaintiff had done fairly well from the surgery but it would certainly limit his ambulation in the future.

 The evidence of all the doctors, except Dr. Roy S. Temeles, who it appeared made no examination of his own, indicated this young man is suffering from a hereditary disease. But not a single one of them explained to the administrative law judge what the disease was and whether or not it could be eradicated, or whether the spurs were constantly harvesting along the skeletal structure of this patient. All we do have is the evidence that Dr. Novak found the plaintiff was in obvious misery due to low back pain of unknown etiology with great reduction of the range of motion and possibility of L5-S1 radiculopathy, and that his "lumbar lordosis was completely flattened". And on January 8, 1981, Dr. Novak reported that "I advised ...


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