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September 17, 1963

Stanley CLEMOCHEFSKY, Plaintiff,
Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Defendant

The opinion of the court was delivered by: NEALON

On November 4, 1959, Stanley Clemochefsky made application to the Social Security Administration to establish a period of disability as provided in 42 U.S.C.A. § 416(i) and for disability insurance benefits under 42 U.S.C.A. § 423. The Bureau of Old Age and Survivor's Insurance denied the application in January of 1960 and affirmed the original denial after a request for reconsideration had been made.

Pursuant to claimant's request a hearing was held in Scranton, Pennsylvania, on September 26, 1961, at which time Mr. Clemochefsky and his physician, A. F. Antognoli, M.D., testified before a Hearing Examiner. Also before the Examiner were the claimant's original application, the Bureau's claim representative's contact reports and the written examination reports of Drs. E. J. McGuire, Albert J. Cross and John E. Swift, all of whom were retained at Government expense. On November 27, 1961, the Hearing Examiner determined that the claimant was not entitled to disability insurance benefits. A request for review of the Hearing Examiner's decision was submitted to the Appeals Council of the Social Security Administration and the request was denied. This denial became the final administrative decision on the claim and constitutes the decision of the Secretary of Health, Education and Welfare.

 On April 30, 1962, Mr. Clemochefsky filed a complaint in this Court, asking that the decision of the Appeals Council be reviewed, reversed and set aside, and a period of disability established. The Government filed an answer asking for judgment dismissing the complaint, and finally, on January 22, 1963, the Government filed a motion for summary judgment, contending that the transcript and entire record of the administrative proceedings disclose that the decision denying Mr. Clemochefsky's claim was supported by substantial evidence.

 Arguments on this motion were heard on May 31, 1963, and the matter has been submitted for determination.

 It is elementary in cases of this nature that the Secretary's findings of fact and the reasonable inferences drawn therefrom are conclusive if they are supported by substantial evidence. Ferenz v. Folsom, 237 F.2d 46 (3d Cir., 1956). The Statute, 42 U.S.C.A. § 405(g), is specific on this point. However, Courts must now assume more responsibility than some Courts have shown in the past for the reasonableness and fairness of decisions of Federal agencies, and reviewing Courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Universal Camera Corporation v. National Labor Relations Board, 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951).

 The Statute requires that the claimant prove he has a disability, i.e., that he is unable to engage in any substantial, gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration. 42 U.S.C.A. § 423(c)(2). The Act is remedial and is to be construed liberally. Celebrezze v. Bolas, 316 F.2d 498 (8th Cir., 1963).

 Disability must be established by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and it must be based on the record as a whole. National Labor Relations Board v. Columbia Enameling & Stamping Company, 306 U.S. 292, 59 S. Ct. 501, 83 L. Ed. 660 (1939); Universal Camera Corporation v. National Labor Relations Board, 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951). The determination of the presence of substantial evidence is to be made on a case-to-case basis. Celebrezze v. Wifstad, 314 F.2d 208 (8th Cir., 1963). It is for the Court then to determine whether there was substantial evidence in the record to support the findings of the Examiner that Mr. Clemochefsky was not precluded by his physical condition from substantial, gainful activity. Boyd v. Folsom, 257 F.2d 778 (3d Cir., 1958).

 A two-part test has been established to determine the existence of the required disability -- (1) what is the extent, if any, of the claimant's physical or mental impairment, and (2) does the impairment result in his inability to engage in any substantial, gainful activity? Klimaszewski v. Flemming, 176 F.Supp. 927 (E.D.Pa.1959).

 There seems to be little question in this case that claimant suffers some physical impairment. The record shows that examining physicians on both sides agree that he is suffering from anthracosilicosis in the second stage and is totally and permanently blind in the left eye; also that he is suffering a cardio-renal disease causing an enlarged aortic heart. Plaintiff's doctor also finds that claimant suffers from arthritic changes of the joints and emphysema in both lung fields. The claimant himself asserts that he suffers shortness of breath at the least exertion, i.e., walking up an incline or climbing steps; that he can only walk a city block without any trouble, and then only 'if he takes it real easy and takes a rest in between.' He also complains of arthritic pains in his shoulders, hands and legs. Indeed, the Examiner specifically found that claimant was unable to continue his usual occupation as a miner, miner's helper or general company laborer in view of his respiratory condition.

 In light of the existence of a physical impairment, the questions forming the crux of the controversy, therefore, are: (1) what work, if any, is he physically capable of doing in this condition; (2) is he qualified by reason of age, education and background for the kind of work he is physically capable of doing, and (3) are there jobs available to him for which he is suited?

 To answer the first question we must analyze the reports of the doctors who examined the claimant.

 The claimant's own physician, after specifically pointing out claimant's physical limitations, concluded that he was 'totally disabled from employment.' The inference being that any kind of employment will aggravate and worsen the claimant's condition and jeopardize his health. The other examining physicians do not say what he is physically capable of doing without endangering his health. Dr. Swift says he is an industrial hazard and that he would be a liability to any employer who put him near machinery or in a place where dust was a prominent feature. Then, without any medical testimony as to the physical movements and activities this physically impaired man can safely perform, the Doctor concludes that 'he should be able to do light work as a janitor, maintenance man or similar employment.' Dr. Cross also says that claimant can do light work of a general nature without any specific findings of what he is safely capable of doing.

 Examining physicians, in cases of this nature, should set forth the physical facts that form the basis for their general conclusions concerning ability or inability to perform certain types of work. The conclusionary phrase, 'light work of a general nature', means nothing to Examiners unless they know what the claimant is capable of doing physically without endangering his life or aggravating his existing physical impairment. I believe it is an unreasonable and unfounded conclusion to say, on the basis of the evidence in this record, that claimant can perform light work as a janitor or maintenance man and I question any opinion which equates 'light work' with the duties which must be performed by a janitor or maintenance man. It is difficult to understand why janitorial or maintenance work is classified as 'light work.'

 The Examiner expressly relies on claimant's statement that he is able to drive his car about once a week, and go fishing a few times a month and take care of his personal requirements, as showing an ability to work. But the claimant's ability to perform the simplest of tasks should not disqualify him from benefits under the Social Security Act. The disability which the claimant must show need not be commensurate with 'helplessness, bed ridden or at death's door.' Aaron v. Fleming, 168 F.Supp. 291 (M.D.Ala.1958). In attempting to show his disability the claimant is not required by the use of a catalogue of the nation's industrial occupations to go down the list and virtually negative his capacity for each of them or their availability to him as an actual opportunity for employment. Butler v. Flemming, 288 F.2d 591 (5th Cir., 1961). The claimant must be able to perform substantial services with reasonable regularity in some competitive employment or self-employment. Foster v. Ribicoff, 206 F.Supp. ...

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