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November 25, 1980

Patricia HARRIS, Secretary of Health and Human Services

The opinion of the court was delivered by: BIUNNO


Minitee filed application for disability insurance benefits on September 15, 1978, claiming a disability onset of September, 1978 (Exh. 1, Tr. 59-62). The onset date was amended to September, 1968, 10 years before (Exh. 2, Tr. 63).

 His work history shows various kinds of employment from 1928 through 1968, such as farm work, factory work, janitor, machine operator, painter, construction labor and truck driving, as well as military service from 1941 to 1945 in the Army as a truck driver (Exh. 18, Tr. 105). (Tr. 37-42).

 On about October 5, 1968 he was injured by a gunshot wound in the lower right abdomen, and as a result wound up at Martland Medical Center where he stayed about a month. He did not regain consciousness for 4 or 5 days after admission, underwent surgery during which one kidney was removed, and after discharge went to the clinic as an outpatient (Tr. 41-43).

 The only written record of this confinement and later outpatient treatment is a typed note of the N. J. College of Medicine and Dentistry, Martland Hospital Unit, signed by Troadio L. Soriano, Jr., M.D., addressed "To Whom It May Concern," and undated. The text indicates the note was prepared while Minitee was a clinic outpatient, as it certifies that he was in the hospital from October 5, 1968 to November 4, 1968, and that: "Presently, he is being followed in our Surgical Clinic."

 It goes on to say that he underwent an exploratory Laparotomy and Nephrectomy for gunshot wound in the abdomen, and that after surgery the remaining kidney was found to have nephrosclerosis "which lengthened his recovery considerably". It then states the opinion that his health "will not allow him to hold a permanent job." (Exh. 17, Tr. 104). He was then a month or so beyond his 50th birthday (Exh. 1, Tr. 59).

 This is the only written material reflecting his 1968 hospital stay and outpatient clinic treatment that followed. There is no admission record, no reports of laboratory tests, no daily notes, no discharge summary and no record of clinic visits and contemporary test results.

 He has been receiving a Veteran's Administration pension for non-service connected disability since 1969. (Tr. 36-37), and said he filed for Social Security sometime after he filed for the pension, and was denied. After discussion about a search for the record of application and denial, and the comment that the record might have administrative finality for an earlier onset date (Tr. 49-50), it was left at the close of the hearing for counsel to decide whether he wished to have a search made for the earlier application, which might contain the records of the hospital and raise a serious question of res judicata; the record was kept open for submission of hospital records and a request to search for the record of the earlier application, with the attorney to let the ALJ know definitely. (Tr. 57-58).

 After the hearing of August 22, 1979 (Tr. 26), a reminder was sent October 16, 1979 allowing two more weeks and if nothing was heard the record would be closed (Tr. 17). The decision was issued November 7, 1979 (Tr. 11-16), with nothing further submitted or requested.

 A request for review was submitted January 3, 1980, the form noticing that additional evidence was to be attached or forwarded within 15 days or any extension thereof. (Tr. 9-10). The time for brief was set by letter of January 18, 1980 (Tr. 8) and it was submitted within time, noting that no 1968-1969 hospital records had been located (Tr. 6-7). The ALJ decision was determined to stand as the final decision of the Secretary by action dated April 2, 1980 (Tr. 3-4) and the present suit under 42 U.S.C. § 405(g) followed.

 Minitee last met the earnings requirement for disability purposes on March 31, 1972 (Tr. 29). Between the note of Dr. Soriano, evidently written while Minitee was a clinic outpatient after his hospital discharge of November 4, 1968, and several visits to Martland Hospital in 1977, there are no medical or clinical records whatever. An emergency department record shows arrival on August 17, 1977 at 11 PM with a diagnosis of hypertension (Exh. 7, Tr. 80), and another arrival on November 11, 1977 at 1:00 PM after a fall the night before (Exh. 8, Tr. 81). A radiology report of the same date reflects a fracture of the 8th, 9th and 10th left ribs. It also notes a foreign body (bullet), and he was discharged November 15, 1977 as "not in distress" (Tr. 82, 83).

 A September 8, 1977 record of the Martland Medical Clinic reports a visit because of low back pain. It recites a history of a right nephrectomy in 1968 as the result of a gunshot wound, with the bullet still in his back, too close to the spinal cord to remove. It also recites abdominal surgery in 1976 as the result of a mugging and carries a sketch of the two surgical scars. He was prescribed Esidrix, phenobarbital and Valium. His blood pressure was 155/120 (Tr. 85).

 A later clinic report of October 20, 1977 shows the blood pressure down to 140/100, and modifies the prescription. A return call was scheduled in 2 months (Tr. 84). Before then, he was back with the fractured ribs mentioned above, on November 11, 1977.

 Aside from the Martland records from August into November, 1977, there are no medical records at all, even in respect to the 1976 ...

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