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Baerga v. Richardson

decided: June 19, 1974.

JOSE E. BAERGA, APPELLANT
v.
ELLIOT RICHARDSON, SECRETARY OF HEALTH, EDUCATION AND WELFARE, APPELLEE



On Appeal from the Judgment and Orders of the United States District Court for the Eastern District of Pennsylvania D.C. Civil No. 72-834.

Van Dusen, Adams, Circuit Judges, and Nealon, District Judge.

Author: Nealon

Opinion OF THE COURT

NEALON, District Judge.

This action was brought in the district court under 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g) to review a decision of the Secretary of Health, Education and Welfare denying plaintiff-appellant's application for the establishment of a period of disability and disability insurance benefits pursuant to Sections 216(i) and 223(a) of the Act, 42 U.S.C.A. §§ 416(i) and 423(a). The district court concluded, "after a thorough and independent review of the entire 369-page record of this case", that the decision of the Secretary was supported by substantial evidence. We affirm the summary judgment entered for defendant with some observations as will be expressed hereinafter.

Plaintiff was born December 30, 1916, in Puerto Rico and came to this country in 1955. While in Puerto Rico, he worked in a cigar factory, where he made cigars by hand, and also in a sugar refinery "conditioning" sugar cane. Upon arriving in the United States, he was employed briefly in the agricultural field and then worked for about eight years, until 1964, as a busboy in a Philadelphia hotel. The record discloses that, at the age of seven, plaintiff sustained a fracture of the right leg and dislocation of his right hip, resulting in a shortening of his leg. In February, 1964, plaintiff underwent a segmental sigmoid resection for diverticuloma of the sigmoid and has not worked since. Subsequently, after frequent hospital treatments for back and leg complaints, he was confined to Hahnemann Hospital from April 18, 1966, to July 29, 1966, and on May 9, 1966, underwent surgery described as a right hip fusion. He presently walks with a limp and wears a four-inch lift in his right shoe. Degenerative changes of the lumbar spine and pelvis are established in the record without contradiction. The plaintiff last met the earnings requirement of the Act on March 31, 1969, and, therefore, the hearing examiner viewed his alleged "back, leg and stomach" impairments in light of their severity as of that date.

In denying plaintiff's application, the examiner made the following "evaluation" of the evidence:

"The Hearing Examiner is of the opinion that the medical evidence fails to disclose any impairment, of the claimant's back or stomach, as alleged on his application, of a level of severity which would have prevented him from engaging in any substantial gainful activity on or before March 31, 1969, when he was last insured for Disability Insurance Benefits.

"It may be observed in passing that there is no medical evidence at all which shows a significant impairment of the claimant's stomach, of any long duration, so there is no evidentiary basis whatever to show the claimant to have been disabled on that account, on or before March 31, 1969.

"With respect to the claimant's alleged back impairment, it appears that the chief problem in this regard was secondary to the injury to the applicant's right hip, which occurred in early childhood and this was an impairment which did not prevent him from engaging in any substantial gainful activity at any time, prior to 1964. Thereafter, the applicant underwent surgery, which from all accounts was rather beneficial. The clinical records of most recent date in this respect, namely those referring to treatments received in April 1968 and December 1969, show the claimant to have been 'in good orthopedic condition, presently'*fn1 and 'doing nicely' (Exhibit 26). In light of the foregoing medical findings at the clinic where the claimant was treated the Hearing Examiner can perceive no adequate basis in the evidence for regarding the claimant to have been disabled because of a back impairment, or any other physical impairment of an orthopedic nature, on or before March 31, 1969."

"The Hearing Examiner finds nothing in this aspect [educational, vocational and non medical evidence] of the evidence which would, in any appreciable measure, compensate for the deficiencies in the medical evidence discussed hereinabove. There is, for example, no basis in either aspect of the evidence which would warrant a conclusion that the claimant was not physically able to perform some appropriate form of work which would have been performed while in a seated position such as employment in the cigar making industry, a type of employment in which he had actual experience prior to the surgery on his right hip, with its reported beneficial effect, on or before March 31, 1969 when he was last insured for disability insurance benefits."

The examiner then proceeds to make but three "specific findings"*fn2 as follows:

"FACT

"1. The claimant in this case filed an application for disability insurance ...


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