Rusnak v. Weinberger

372 F. Supp. 878, 1974 U.S. Dist. LEXIS 9665
CourtDistrict Court, D. Delaware
DecidedMarch 6, 1974
DocketCiv. A. No. 4689
StatusPublished
Cited by2 cases

This text of 372 F. Supp. 878 (Rusnak v. Weinberger) is published on Counsel Stack Legal Research, covering District Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rusnak v. Weinberger, 372 F. Supp. 878, 1974 U.S. Dist. LEXIS 9665 (D. Del. 1974).

Opinion

LATCHUM, Chief Judge.

This is an action under Section 205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Secretary of Health, Education and Welfare denying total disability insurance benefits claimed under Section 223 of the Act, 42 U.S.C. § 423.

The plaintiff filed an application for disability insurance benefits on January 25, 1972 alleging she had been unable to work since May 15, 1970, due to a fractured wrist, at age 49. On April 18, 1972, the plaintiff was notified by the Bureau of Disability Insurance, Social Security Administration, that her application was denied. After her motion for reconsideration was denied on June 14, 1972, she filed a request for a hearing on August 8. Following a hearing on October 26, the Administrative Law Judge held on March 19, 1973 that the plaintiff was not entitled to disability insurance benefits. On May 18, 1973 the plaintiff filed a request for review with the Appeals Council of the Social Security Administration, and the Appeals Council affirmed the Administrative Law Judge’s decision on June 15, 1973. Thereafter the plaintiff filed the instant action in this court within the required statutory period.

To qualify for disability insurance benefits under Section 223, the plaintiff must meet the insured status of that Section, be under age 65, have filed an application for disability insurance and be under a disability as defined in the Act. Of these criteria, only the last is in controversy. Section 216(i)(1)(A) of the Act, 42 U.S.C. § 416(i)(1)(A) defines disability as the

“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.”

The Court must determine whether the Secretary’s final decision that the plaintiff is not disabled within the meaning of the Act is supported by substantial evidence.

The plaintiff, who is now 53 years old, has been employed as a waitress-bartender throughout most of her adult life. The duties of this occupation require a certain degree of strength, dexterity and balance. Sometime in May of 1970 the plaintiff fractured her right wrist, but failed to have it treated until July or August of 1970 when she visited the Beebe Hospital in Lewes, Delaware, because of the discomfort she was experi[880]*880encing. There the arm was splinted and the splint was kept on for about six weeks. Still experiencing pain at that time, the plaintiff consulted other doctors and a metal splint was applied. This splint remained on until December of 1970, when the wrist was operated upon. The plaintiff maintains that despite the medical treatment received she continues to have pain in her right arm running from the thumb to the shoulder. The plaintiff also claims to have a kidney condition which causes occasional pain and requires regular treatment, and a recurring tumor condition which so far has required 31 operations with accompanying hospitalization.

Among the material considered by the Administrative Law Judge was the report of an examination conducted by Doctor S. W. Casscells on March 27, 1972 on behalf of the Disability Determination Service. Doctor Casscells reported that the wrist appeared normal and had no stiffness or loss of function. He concluded that the plaintiff’s pain symptoms are largely psychosomatic.

Critical to the Administrative Law Judge’s decision was the testimony given at the hearing by a vocational expert Irving A. Leshner (“Leshner”). Two hypothetieals were posed to Leshner concerning the possibility of gainful employment for the plaintiff. In the first hypothetical taking into consideration the plaintiff’s age, education and occupational experience, Leshner was asked to assume that there was a recurring pain in her right arm requiring medication and that the right arm was functionally disabled. He was also asked to assume the kidney and tumor conditions. Leshner in answer stated that he saw no gainful employment over a reasonable period of time. In the second hypothetical, Leshner was asked to assume the pain from movement of the right wrist, but to assume normal function of the arm and wrist. This hypothetical did not include the kidney and tumor conditions. In answer Leshner stated that he thought the claimant could perform certain light and sedentary jobs, such as keeping records, checking, filing and writing.

The Administrative Law Judge con-eluded that the plaintiff was not disabled within the meaning of the Act, because although she could not return to the heavy work of a waitress-bartender, she had the residual physical capacity and skills to perform other jobs in the Wilmington area as described by the vocational expert.

The plaintiff assigns two errors to the Administrative Law Judge’s decision, affirmed by the Appeals Council. First, she argues that the Law Judge was wrong in failing to consider whether pain alone, notwithstanding a lack of functional loss, could qualify as a disability under the Act, and second, she argues that the Judge’s conclusions regarding alternative gainful employment fail to meet the requirement that gainful employment available to the specific claimant be established.

With regard to the plaintiff’s first point, Section 223(d)(3) defines the term “physical or mental impairment”, used in the definition of disability as:

“an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”

This language suggests that a finding of disability within the meaning of the Act must be supported by clinical data. However, several courts, including the Third Circuit Court of Appeals, have held that symptoms which are real to the claimant, although unaccompanied by objective medical data, may support a claim for disability benefits provided the claimant satisfies the requisite burden of proof. See, e. g. Bittel v. Richardson, 441 F.2d 1193 (C.A.3, 1971); Ber v. Celebrezze, 332 F.2d 293 (C.A.2, 1964). The Court is unable to determine from the Administrative Law Judge’s decision whether he took into consideration that intense pain alone could be a proper basis for a finding of disability. It may [881]*881very well be that he concluded that the plaintiff’s complaints of pain were not genuine;1 on the other hand, he may have concluded that her complaints of pain while genuine were not so intense that it alone could serve as a basis for disability.2

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Related

Rusnak v. Mathews
415 F. Supp. 822 (D. Delaware, 1976)
Brown v. Secretary of Health, Education & Welfare
403 F. Supp. 938 (E.D. Wisconsin, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
372 F. Supp. 878, 1974 U.S. Dist. LEXIS 9665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rusnak-v-weinberger-ded-1974.