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Fiorello v. Heckler

decided: December 27, 1983.

VIRGINIA FIORELLO, PLAINTIFF-APPELLANT,
v.
MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE



Virginia Fiorello appeals from a judgment of the United States District Court for the Eastern District of New York (Platt, J.) affirming a decision of the Secretary of Health and Human Services which denied appellant's claim of continuing disability.

Friendly, Van Graafeiland and Meskill, Circuit Judges.

Author: Van Graafeiland

VAN GRAAFEILAND, Circuit Judge:

Virginia Fiorello appeals from a judgment of the United States District Court for the Eastern District of New York (Platt, J.) affirming a decision of the Secretary of Health and Human Services which had denied appellant's claim of continuing disability under section 223 of the Social Security Act as amended, 42 U.S.C. ยง 423.

Mrs. Fiorello, who is now thirty-nine years old, worked as a secretary from 1962 until she was involved in an automobile accident in November 1976. As a result of the accident, she suffered a fracture and dislocation of her right hip, torn ligaments in her right ankle, contusions of her sternum and chest, injury to her right sciatic nerve, and a severe concussion. These injuries necessitated hospitalization and surgery and left Mrs. Fiorello with a number of physical and mental problems.

In May 1977, Mrs. Fiorello was granted disability benefits which were continued until 1979, when the Bureau of Disability Determinations determined that she no longer was disabled. When appellant was denied reconsideration of this determination, she requested and was granted an administrative hearing. The Administrative Law Judge who conducted the hearing found that appellant could perform the sedentary work of a secretary and that her disability entitlement correctly had been terminated as of July 30, 1979. The Appeals Council denied Mrs. Fiorello's request for review, and the district court held that the Secretary's decision was supported by substantial evidence. We reverse.

Dr. Justus Kaufman, an orthopedist, was the only physician to testify at the hearing before the ALJ. He described in detail the dislocation of appellant's right hip, her fractured acetabulum, and the damage to her ligaments and sciatic nerve, "the most important nerve in the leg." He described an increasing avascular necrosis in the femur head which, he said, would require prosthetic surgery. He also explained how, in favoring her hip injury, appellant had aggravated a pre-existing spinal scoliosis, causing painful arthritis to develop in one or more lumbar vertebrae. He explained that, as a result of brain damage, appellant had weakness in her right side; that severe ligamental tears in her right ankle had left her with limited dorsiflexion, abnormal inversion of the right foot, swelling, and discomfort; and that appellant still had discomfort associated with her chest injury. He testified that she was unable to engage in substantial work activity on a competitive basis.

By picking and choosing excerpts from the reports of other physicians, the ALJ reached the opposite conclusion. For example, the ALJ relied on a report of Dr. Lawrence Kaplan, which was dated May 7, 1979 but covered his examination of appellant on March 26, 1979, and in which he stated that, although appellant's prognosis was guarded, "rehabilitation-wise, she probably has the residual functional capacity for some type of sedentary work where she does not have to lift up too much weight due to the pressure put on her right leg." The ALJ then "question[ed] the validity" of a subsequent report by Dr. Kaplan, dated May 25, 1979, in which Dr. Kaplan said:

Although I thought that she might be able to do sedentary work, it is quite apparent to me as of the last examination on May 24, 1979 that the patient has a continuous occupational disability and will be unable to work indefinitely.

The ALJ gave as her reason for rejecting Dr. Kaplan's later report that the doctor "[found] himself able to reverse his evaluation over an 18 day span of time." The ALJ's appraisal of Dr. Kaplan's veracity was based solely on the doctor's written reports. We have read the reports, and we find no basis for the ALJ's rejection of the later report. This report covered a re-examination of appellant which occurred, not eighteen days, but two months after the examination previously reported.

The record contains four letters from Dr. George Truchly, appellant's orthopedic surgeon, which reported as follows:

August 30, 1977 -- "still considered disabled."

April 20, 1978 -- "aseptic necrosis of the right hip . . . ...


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