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ERWIN v. SECRETARY OF HEALTH

April 28, 1970

Mona Adele ERWIN, Plaintiff,
v.
SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant


Shaw, District Judge.


The opinion of the court was delivered by: SHAW

SHAW, District Judge.

 This action is brought by plaintiff pursuant to 42 U.S.C. § 405(g) to review a final decision of the Secretary of Health, Education and Welfare whereby plaintiff's application for disability insurance benefits was denied.

 Plaintiff filed her application on April 18, 1967, alleging onset of disability during September 1962 at age forty-six. She described her disability as a "bladder condition - nerves in the lower spine." It was determined by the Hearing Examiner in the Bureau that the latest date on which plaintiff met the statutory earning status requirement for disability was September 30, 1962, and further that the evidence submitted established that the disability of which she complained (bladder condition) ceased during February of 1966 and that, therefore, her application was filed more than twelve months after cessation of disability. See 42 U.S.C. § 416(i)(2)(D)(E) *fn1" The two month grace period prescribed by subsection (D) does not seem to have been considered. Before plaintiff could qualify for disability benefits, it was incumbent upon her to establish the existence of "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 has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 416(i)(1)(A).

 The narrow function of the reviewing Court is confined to the question of whether there was any substantial evidence which would support the findings of the Secretary. Review is upon the record developed during the proceedings in the administrative agency leading to the final decision. "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Even though the Court may have reached different conclusions on the same evidence, the Court is not at liberty to substitute its findings of fact for those of the Secretary where they have rational support in the evidence. Ogden v. Celebrezze, 211 F. Supp. 558 (D.N.J. 1962); Palmer v. Celebrezze, 334 F.2d 306 (3rd Cir. 1964).

 Before the plaintiff could qualify for disability insurance benefits as defined by the Act, it must be shown that the disability existed on or before the date of expiration of insured status under the Act. Brandon v. Gardner, 377 F.2d 488 (4th Cir. 1967); 42 U.S.C. §§ 416(i)(3)(B), 423(c)(1)(B). The insured status of plaintiff did not exist beyond September 30, 1962, when she last met the earnings requirements. Accordingly, it was incumbent upon her to establish onset of disability as defined by the Act on or prior to that date.

 Plaintiff is a high school graduate. She took a commercial course which included the subjects of typing, stenography and bookkeeping. During the latter years of her employment she worked as a bookkeeper. She stopped work during 1957 or 1958 (she could not recall exactly which year it was). She attributed her inability to work to colitis which cleared up in approximately six months. Her former employer was out of business but she did find work and "worked a couple of weeks or about a month." Thereafter she received unemployment benefits and did not return to work. During the latter part of August 1962 she experienced pressure in her bladder and sought treatment from Dr. Mallison, a general practitioner. He treated her with pills thinking that she had an infection. The pills were not effective and Dr. Mallison referred her to a urologist, Dr. Boyes. He took a urine specimen and gave her pills. She had no relief and Dr. Mallison referred her to another urologist, Dr. Ferenchak. Mrs. Erwin saw him on or about September 5, 1962. He told her that she had a stricture of the urethra and he performed a dilation. He continued the dilations through September 1962 until the end of October 1962. This relieved the pressure but frequency of urination continued with soreness in the vaginal area. She stated that she did not look for employment because she did not feel well. She never questioned Dr. Ferenchak about her ability to go to work. Neither did she discuss this with Dr. Mallison. She saw Dr. Keating, a gynecologist, during January 1963 because of her complaint of soreness in the vaginal area. According to her testimony, Dr. Keating advised her that there was nothing wrong in the vaginal area, but he noticed that she had a lump on her neck and advised her to see a surgeon about it immediately. She did this and an operation was performed to remove a tumor from her thyroid. This was completely unrelated to any bladder condition.

 She did not seek further treatment for the bladder trouble until approximately March of 1963 when she returned to Dr. Ferenchak. He continued her on pills but she experienced no relief. During June 1963 he performed a cystoscopy but continued her on the pills. According to plaintiff her condition with pressure and frequency was unbearable because of pain. Her husband called a general practitioner, Dr. Milligan, who saw her once, for the bladder condition. He gave her pills to relieve her nerves. Thereafter, he recommended Dr. Day, a urologist. She saw Dr. Day approximately one week after she had discussed her difficulties with Dr. Ferenchak who, it seems, had reached the conclusion that there was nothing seriously wrong with her.

 Dr. Day placed her in Overlook Hospital for another cystoscopy. This occurred during June 1363. Dr. Day reported that he did find granulated tissue in the bladder which he removed. Consultation and treatment by Dr. Day for the bladder condition was continued. According to plaintiff she felt some relief after Dr. Day took the tissue out but several months later she had the sensation of pressure again. Dr. Day treated her with pills and dilations and finally told he he did not know just what to do.

 During 1964 he placed her in the hospital and another cystoscopy was performed as well as an examination by a gynecologist and an internist. It seems that the doctors found nothing in connection with the bladder except some infection for which more pills were prescribed and silver nitrate treatments administered. Plaintiff found the silver nitrate treatments very painful. She was finally advised that she might have Hunner's ulcer in her bladder and it was recommended that she go to the Albany Medical Center. She was hospitalized there on January 6, 1966. Another cystoscopy was done and thereafter a laminectomy was performed. Excerpts from the summary sheet of the Albany Medical Center read as follows:

 
This 45 year old female was admitted on January 6, 1966, with the chief complaint of frequency every 5-20 minutes, and sensation of pressure in the suprapubic area of three years' duration.
 
Present illness: The patient has had several admissions to various hospitals for the same symptoms. She has had a cystoscopy, urethral dilation, bladder dilation and instillation of sodium silver nitrate. She had no history of costovertebral angle pain or acute urinary tract infection. The patient had been on sulfa and antibiotics.
 
Review of systems: Non contributory. Physical examination: This was a well nourished, obese female in no acute distress. The general examination was within normal limits. The impression at the time of admission were interstitial cystitis.
 
The patient was admitted for dilation and evaluation. Cystoscopy revealed areas of hemorrhage just inside the vesical neck ...

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