Hayner v. Celebrezze (214 F. Supp. 689, 1963)

HARRY E. WATKINS, District Judge.

Plaintiff seeks judicial review of the final decision of the Secretary of Health, Education, and Welfare that he was not entitled to a period of disability and to disability insurance benefits under sections 223 and 216 (i) of the Social Security Act, as amended. For the reasons hereinafter stated, it is now found that the decision of the Secretary is supported by substantial evidence and that defendant’s motion for summary judgment should be granted.

On February 21, 1961, plaintiff filed an application to establish a period of disability and for disability insurance benefits. This application was denied by the Bureau of Old-Age and Survivors Insurance both initially and upon reconsideration. On June 21, 1962, a hearing examiner also found that plaintiff was not entitled to a period of disability or to disability insurance benefits. This decision became the final decision of the Secretary when the Appeals Council denied plaintiff’s request for review on August 23, 1962.

In order to meet the statutory definition of disability plaintiff had to establish that he had been continuously precluded from engaging in any substantial gainful activity by a disabling impairment or impairments which commenced no later than May 1, 1961, for.entitlement to disability insurance benefits and no later than May 21, 1961, to establish a period of disability. His special insured status does not expire until June 30, 1965.

In his application plaintiff alleged that he became disabled to work on August 23, 1960, because of a flat hip socket. The evidence of record shows unquestionably that his hip condition had existed since he was a young child — about seven or nine years old. At this early age he had used crutches for approximately six months as a result of his hip condition. His chief complaints were pain and soreness. At the hearing he also complained of a skin disease and a growth in his nose. As to these last two complaints there is absolutely no medical evidence of record.

The record further discloses that plaintiff served in the Army for only seven weeks. He was honorably discharged for medical reasons arising from his hip condition. A medical report made while plaintiff was in the Army, dated December 29, 1941, indicates that X-rays showed a deformity in the left hip characterized by a “flattening of the head of the femur, moderate restriction of motion, shortening of leg, left, and muscular atrophy of thigh, left.”

Dr. J. L. Patterson, in a report received on February 23, 1961, indicated that he first examined plaintiff on August 23, 1960, and performed his last examination on February 22, 1961. An X-ray showed a flattening and irregularity of the head of the left femur and changes in the hip bone. His diagnosis was Perthes Disease (a disease in which changes take place in the bone at the head of the femur near the hip with deformity resulting) of the left hip with arthritic changes. Dr. Francis A. Scott, in a report dated February 28, 1961, found essentially the same conditions as those reported by Dr. Patterson. His diagnosis was also the same. In addition, however, he reported that plaintiff was treated by an injection of hydro-cortone and advised to have weekly injections as necessary. He was of the further opinion that plaintiff would undoubtedly develop arthritic changes of the hip joint which would necessitate arthrodesis (a surgical procedure whereby a joint is fixed or fused — a basic purpose of the operation is to offer substantial relief from pain so that a person may walk and stand without discomfort). He did not indicate that such an operation was then necessary or advisable.

Dr. H. H. Cudden in a report dated June 5, 1961, stated that he had never examined the plaintiff before but found that he had a congenital malformation in the left hip j