The opinion of the court was delivered by: NEALON
This is an action under Section 205(g) of the Social Security Act, as amended, to review a final decision of the Secretary of Health, Education and Welfare denying plaintiff's application for disability insurance benefits.
The pleadings reveal that plaintiff filed an application for disability insurance benefits on February 6, 1963, which was denied by the Social Security Administration, and the claimant filed a timely request for a hearing on July 6, 1964. The hearing was held on September 24, 1964, before the Hearing Examiner. The Hearing Examiner, in a decision dated October 12, 1964, also denied plaintiff's claim for disability benefits. Plaintiff filed a request for review, but this was denied by the Appeals Council and this denial became the final Administrative decision on the claim and constitutes the decision of the Secretary. Plaintiff then filed his complaint in this Court, seeking a reversal of the decision, and the defendant has moved for summary judgment. This motion is now before the Court for disposition.
Plaintiff is fifty-five years of age. He commenced work at the age of fourteen when he took a job as a bobbin boy in a silk mill. He later became a spinner and held that job from 1923 to 1928, when he went to work in the mines. He first became a door tender, then a laborer, and qualified as a miner in 1941. In 1950, his place of employment, the West End Coal Company, ceased operations and he then took employment with the Glen Alden Coal Company at Wanamie, Newport Township, Pennsylvania. Plaintiff was employed at the Wanamie Colliery until 1960. On December 5, 1960, a mine accident occurred and plaintiff suffered injuries to his eyes and legs. Plaintiff's education is limited to the completion of the seventh grade of elementary school. The applicable 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).
Dr. J. P. Chollak, plaintiff's physician, provided a diagnosis of his medical condition as anthracosilicosis, Stage II, with emphysema and a marked impairment of vision due to severe perforation of the right cornea, and concluded that no exertion was permitted and that plaintiff was limited to sedentary activity. Dr. Angelo L. Luchi, a specialist in Internal Medicine, diagnosed plaintiff's condition as anthracosilicosis, Stage II, pulmonary emphysema (moderate), and post-traumatic fixed pupil of the right eye. Dr. Edward P. Swartz, an Internist retained at Government expense, likewise diagnosed plaintiff's condition as anthracosilicosis, Stage II, although he states that claimant's oxygen tension before and after exercise is normal and that his response to exercise is fairly good. Dr. A. J. Abbott, in two medical reports, supplied a diagnosis of:
"1. Wounds, multiple, penetrating with retained foreign bodies, lids, cornea, conjunctive; 2. Wounds, perforating through and through, right eyeball, one temporal to limbus, one nasal to limbus; 3. Probable intra-ocular foreign bodies; 4. Multiple abrasions of cornea; 5. Intra-ocular hemorrhages, vitreous plus hyphema, right eye; 6. Concussion of both ears with multiple hemorrhages in M.T.'s; 7. Defective hearing and Tinnitus due to concussion."
Dr. Stanley Verbit, in his examination, stated in his final diagnosis that:
"Claimant had chronic pulmonary fibrosis and emphysema - asymptomatic."
On January 10, 1963, the plaintiff was adjudged totally disabled and was awarded total disability compensation by the Pennsylvania State Workmen's Compensation Board because of severe pulmonary insufficiency due to second degree anthracosilicosis with emphysema. From the evidence, it is quite obvious that plaintiff suffers a serious physical impairment and is unable to return to his usual employment as a coal miner. He contends that he is unable to perform any work. The record also contains the testimony of Dr. Joseph A. Szuhay, a vocational expert. After analyzing the evidence, the Examiner summed it up:
"Although it is clearly established that the claimant has some impairment to his pulmonary capacity, it is equally clear that this impairment does not reduce him to that status of disability as hereinabove defined by the statute and construed by the courts * * * Due consideration has been given to the report of Dr. Chollak, the claimant's physician. Ventilatory studies performed by Dr. Chollak indicate that the claimant's maximum breathing capacity is reduced to 52% of his predicted normal, as compared with the findings of Dr. Luchi, the impartial internist consultant who found a maximum breathing capacity of 62% of a predicted normal, and Dr. Swartz who found that the claimant's oxygen tension arterial blood before and after exercise was normal. Of greater consideration is the fact that the claimant satisfactorily performed exercise tolerance tests for both Dr. Luchi and Dr. Swartz. * * * The testimony of Dr. Joseph A. Szuhay, based upon the record and his appraisal of the claimant, taking into account the claimant's physical condition, his age, education, experience and skills, that the claimant has the present capacity for engaging in many jobs existing in the American economy and particularly in the Wilkes-Barre-Hazleton area is 'compelling'. The Hearing Examiner finds that the claimant has such capacity for substantial gainful activity."
Accordingly, the Examiner denied plaintiff's application for disability benefits.
It is true 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). Substantial evidence, according to the Supreme Court, "* * * means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion * * * and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." National Labor Relations Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 59 S. Ct. 501, 83 L. Ed. 660 (1939). Nevertheless, Courts must review the entire record to determine if the Secretary's decision is based on substantial evidence. In the present case, the Secretary has recognized that plaintiff suffers a pulmonary impairment and would undoubtedly be unable to engage in the arduous duties of mining coal. However, the Secretary concluded that plaintiff was able to engage in substantial gainful activity. In reaching that conclusion the Secretary must dispose of the specific question posed in Hodgson v. Celebrezze, 312 F.2d 260 (3d Cir. 1963), viz., "(what) employment opportunities are there for a man who can do only what applicant can do?" Mere theoretical ability to engage in substantial gainful activity is not enough if no reasonable opportunity for this is available. We must concentrate our attention on this plaintiff with his education and background, his abilities, and his recognized impairments. Farley v. Celebrezze, 315 F.2d 704 (3d Cir. 1963). There must be something tangible establishing what genuine employment opportunities there are for a man with his impairments. Stancavage v. Celebrezze, 323 F.2d 373 (3d Cir. 1963). With these standards to guide us, we will proceed to review and analyze the disputed testimony of Dr. Szuhay, the vocational expert, upon whose testimony the Secretary based his decision and was "compelled" to find that plaintiff is capable of engaging in substantial gainful employment.
The sources for Dr. Szuhay's testimony, in addition to his educational bankground, were: (1) a review of the Dictionary of Occupational Titles, which dictionary breaks down roughly 40,000 different jobs according to families in which they belong, plus individual descriptions of all duties engaged in by people in the specific jobs. The Dictionary was compiled by the Department of Labor and was a 1955 edition. (2) The Worker Trait Requirements for 4,000 jobs as defined by the Dictionary of Occupational Titles published in 1958 by the United States Department of Labor. (3) The Labor Market Letter published by the Wilkes-Barre/Hazleton Bureau of Employment Security for the State Employment Service released September 23, 1964. (4) An examination of the medical and other exhibits used as evidence in the case, and his personal observation of the plaintiff during the hearing which lasted about three hours.
Using this material, Dr. Szuhay prepared Exhibit 23 prior to the hearing and introduced it at the hearing as part of his testimony. The exhibit shows that he concluded the claimant was best suited for work of "light to moderate or sedentary physical effort which would not aggravate his condition." He concludes that claimant was best suited for jobs that involve none of the following factors: (a) very heavy work; (b) industrial hazards; (c) fumes, odors, toxic conditions, dust, and poor ventilation. Dr. Szuhay prepared a "Selected List of Jobs" which plaintiff, in his opinion, could perform, based on the Dictionary of Occupational Titles,