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METRO KRESCHALK v. GARDNER

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


April 7, 1967

Metro KRESCHALK, Plaintiff,
v.
John W. GARDNER, Secretary of Health, Education, and Welfare, Defendant

The opinion of the court was delivered by: DUMBAULD

DUMBAULD, District Judge.

 This is a proceeding under 42 U.S.C. § 405(g) to review a final decision of the Secretary of Health, Education, and Welfare (alias Appeals Council of the Social Security Administration) dated June 17, 1966, denying plaintiff's claim for disability benefit under 42 U.S.C. §§ 416(i) and 423. Disability is defined by the former section and amendment thereto of July 30, 1965, as "inability 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 or has lasted or can be expected to last for a continuous period of not less than twelve months. *fn1"

  Upon review of the whole record, we enter judgment reversing the decision of the Secretary, and holding that his finding that plaintiff is not suffering from "disability" as defined by the statute is not supported by substantial evidence. Parfenuk v. Flemming, 182 F. Supp. 532, 535-536 (D.Mass.1960); Knelly v. Celebrezze, 249 F. Supp. 521, 525-536 (M.D.Pa.1966); Farley v. Celebrezze, 315 F.2d 704, 706-708 (C.A.3, 1963); Stancavage v. Celebrezze, 323 F.2d 373, 377-378 (C.A.3, 1963). We are not convinced that "genuine employment opportunity" has been shown. 323 F.2d at 378.

 Concededly (Defendant's Brief, p. 9) the plaintiff, a coal miner, 52 years old, with a sixth grade education, is no longer able to work in the mines. In addition to the primary disabilities of silicosis and emphysema which he alleges, he has a history of other illnesses. The record is replete with medical testimony establishing plaintiff's infirmities. (For a full summary of this testimony, see Defendant's Brief, pp. 3-6).

 The Government relies chiefly upon the opinion of a psychologist, one Glen U. Cleeton, who enumerated from a supplement to the Dictionary of Occupational Titles a number of job descriptions for which he considered plaintiff suited, but after some hesitation stated that he had no personal experience regarding the availability of such jobs in the area where plaintiff lived. (Tr. 85-86).

 In view of plaintiff's admitted physical condition, it is quite clear even from Mr. Cleeton's testimony (Tr. 88), that plaintiff would undoubtedly be rejected by the medical examiner of a prudent employer.

 Upon review of the evidence of record, in the light of the above-cited authorities, the Secretary's decision must be reversed. "Viewing the record as a whole, the evidence falls short of showing genuine employment opportunities available to someone like plaintiff with his back-ground and condition." 249 F. Supp. at 526.

 JUDGMENT

 And now, this 7th day of April, 1967, defendant's motion for summary judgment is denied and the decision of the Secretary is reversed and the cause remanded to the Secretary with directions that plaintiff be granted a period of disability and disability benefits in accordance with the decision of this Court.


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