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YECKABOFSKY v. RIBICOFF

July 17, 1962

Anthony YECKABOFSKY, Plaintiff,
v.
Abraham A. RIBICOFF, Secretary of Health, Education and Welfare, United States of America, Defendant



The opinion of the court was delivered by: GANEY

This action was commenced under 205(g), as amended, 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's claim for disability benefits.

Alleging that he had been unable to work since March of 1949, because he was suffering from anthracosilicosis, plaintiff filed on application with the Social Security Administration pursuant to § 223 of the Act, 42 U.S.C.A. § 423, for monthly disability insurance benefits. *fn1" The Secretary determined that plaintiff's impairments were not of such severity as to continuously preclude him from engaging in any substantial gainful activity at or prior to December 30, 1959, when he last met the earning requirements of the Act, and denied his claim on January 26, 1960, and his request for review on May 24, 1960.

 We think the claim should be sent back to the Secretary for further action. For a proper understanding of our reasons for thinking so, a rather detailed statement of the history of the case should be set forth.

 A partial resume of the testimony and medical reports upon which the hearing examiner based his decision is as follows: 'Claimant gave his date of birth as February 9, 1898 * * *. He attended elementary school up to the 4th grade and began working in the coal breakers sometime in 1912. He served in World War I from 1917 to 1919. After his discharge he began working as a laborer in the coal mines and was employed (as a coal miner) until October, 1945, when he was compelled to terminate his work because of shortness of breath. Claimant stated that he first began to notice shortness of breath in 1944. He was out of work then for about three months * * *. He returned to work in February, 1945, but in October found that he could no longer continue because of his difficulty in breathing. Claimant testified that he had received no medical treatment for his shortness of breath until he began receiving treatment at the State Clinic in Shenandoah (Pennsylvania) on March 9, 1949, when x-rays of his chest were taken. He has been attending the clinic regularly since that time * * *. He was hospitalized at the Veterans Administration Hospital, Batavia, New York, from April through August, 1955, because of his lung condition * * *. He has great difficulty in getting about because of his shortness of breath. He finds that it is difficult to life anything and complained of a dizzy sensation when bending * * *. He does very little about the house. His wife takes care of the cleaning and other household duties * * *.

 'A medical statement by a physician associated with the United Mine Workers Anthracite Health and Welfare Fund, dated September 9, 1948, states that the claimant has shortness of breath, cough, weakness and a probable secondary infection. That he is suffering from anthracosilicosis and is permanently disabled.

 * * * * * *

 'An x-ray of the claimant's chest was taken by the Department of Welfare on March 9, 1949. * * * The impression was that the claimant had entered the early phase of an advanced or third stage anthracosilicosis with some emphysema.

 * * * * * *

 '* * * He was again examined on December 18, 1951, (by the Veterans Administration) in connection with his application for a nonservice connection disability pension * * * The diagnosis was as follows: (1) Anthracosilicosis, 3rd stage; (2) External hemorrhoids; (3) Sub-deltoid bursitis left, from records, with history of chronic dislocation (of) left shoulder.

 * * * * * *

 'A medical report * * * from the State Clinic, Shenandoah, Pennsylvania, dated April 14, 1959, states * * * that he is totally disabled as a result of anthracosilicosis. An x-ray from the clinic on January 25, 1956, indicated that the degree and extent of the chronic fibrosis was about the same when compared with the previous x-ray of January 4, 1955. The suggestion of cavitation in the middle third of the right lung was still present. Subsequent x-ray of January 7, 1959, showed an advanced or third stage anthracosilicosis with areas of coalescing density present in the middle and lower third of the right lung and in the lower third of the left * * *.

 'Pulmonary function studies performed May 5, 1959, *fn2" showed that claimant had a predicted vital capacity of 4014 c.c. Vital capacity was 2705 c.c. The 3 second vital capacity test was indicated as 2447 c.c. or 67% Of his predicted vital capacity * * * (and) as 88% Of vital capacity. The predicted maximum breathing capacity was shown as 105 liters per minute. Maximum breathing capacity was 90 liters per minute or 85% Of the predicted maximum breathing capacity. The physician furnished an impression that the claimant had restrictive ventilatory insufficiency with some obstructive ventilatory insufficiency.'

 At the request of the Social Security Agency, Dr. David S. Marshall, II, who examined the plaintiff in July of 1959, reported that although the claimant did not appear to be acutely or chronically ill, that his heart and blood pressure were normal, that he was mentally alert and that there was no gross evidence of pulmonary emphysema in the structure of the thoracic cage, he was suffering from anthracosilicosis, had very poor vision and wears glasses all the time, had a punctured right eardrum and that his hearing was fair. He ...


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