200 F. Supp. 543 | S.D.N.Y. | 1961
This is an action under 42 U.S.C.A. § 405(g) to review a final decision of the Secretary of Health, Education and Welfare denying the plaintiff’s application to establish a period of disability, 42 U.S.C.A. § 416 (i), and for disability insurance, 42 U.S.C.A. § 423. A certified copy of the transcript of the record has been filed by the defendant with his answer as required by 42 U.S.C.A. § 405(g). The defendant moves under Rule 56 of the Fed.Rules of Civ.Proc., 28 U.S.C.A., for summary judgment dismissing the complaint. The court will treat the motion as one made under section 405(g) for judgment on the pleadings.
The plaintiff does not assert that he lost employment due to a “medically determinable physical or mental impairment,” 42 U.S.C.A. § 416 (i). He contends rather, that he has been prevented from regaining employment by such an impairment. He worked as an elevator operator, general handy man, and caretaker of a building from 1931 until October 17, 1952, when he was laid off following the installation of automatic elevators. At that time he had some not very serious difficulty with his knee which thereafter, he alleged, became steadily worse. The period of disability he seeks to establish would begin in December 1952, two months after his discharge.
The plaintiff filed applications for disability insurance benefits on November 20, 1958, and to establish a period of disability on December 5, 1958. The Bureau of Old-Age and Survivors Insurance denied the applications initially, and on reconsideration, after the New York Department of Social Welfare, upon evaluation of the evidence by a disability examiner and a physician, had found that the plaintiff was not under a disability. Thereafter, the plaintiff requested a hearing by the hearing examiner of the Social Security Administration. This was held on January 12, 1960, at which time the hearing examiner took the testimony of the plaintiff and considered the entire case de novo. He rendered a decision on March 15, 1960, finding that the plaintiff had not established a disability and was not entitled to disability insurance benefits. The plaintiff’s request for review by the Appeals Council was denied. Hence, the hearing examiner’s decision stands as the final decision of the Secretary.
The plaintiff was fifty years of age at the time of his discharge. His education did not extend beyond the seventh grade. He has never had any skilled training or experience. Plaintiff argues that these factors, combined with his arthritic condition, severely limited the opportunities for gainful employment left open to him. While these conditions are relevant,
The findings of the Secretary are supported by substantial evidence in the record.
Judgment on the pleadings in favor of the defendant is granted. The Clerk is directed to enter judgment forthwith.
So ordered.
. Pirone v. Flemming, D.O., 183 F.Supp. 739, aff’d 2 Cir., 278 F.2d 508.
. The Hearing Examiner summarized his findings as follows: “A review of the
“The Hearing Examiner, therefore, finds that the claimant has not been suffering from a medically determinable mental or physical impairment of such severity as to have prevented him from engaging in any substantial gainful activity since December 1952, as alleged, or from any time in and prior to the quarter ending December 31, 1957, when he last met the special earnings requirements under the law.”
. Adams v. Flemming, 2 Cir., 276 F.2d 901.
. N. L. R. B. v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660; Pirone v. Flem-ming, D.C., 183 F.Supp. 739, 741, aff’d 2 Cir., 278 F.2d 508.
. Parfenuk v. Flemming, D.C., 182 F. Supp. 532, 535-536; but see Adams v. Flemming, 2 Cir., 276 F.2d 901.
. D.C., 197 F.Supp. 1.