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MARSHALL v. COHEN

February 14, 1969

Kenneth L. MARSHALL, Plaintiff,
v.
Wilbur COHEN, Secretary, Department of Health, Education and Welfare, Defendant



The opinion of the court was delivered by: GOURLEY

 The application of Marshall to be granted disability benefits under the Social Security Act was denied by the Secretary of Health, Education and Welfare. It was adjudicated that claimant's proof did not establish disability within the provisions of the Act. This is an appeal from said decision. In addition, the Social Security Secretary has filed a Motion for Summary Judgment.

 This Opinion is lengthy and considerable discussion is made of the facts. If the Court had authority to consider the matter de novo this would not have been required. The Opinion could have been short, clear, concise and succinct since it would not have required too much effort if the Court could have entered its own Findings of Fact and Conclusions of Law de novo. However, the Court is limited in the evaluation of the complete record to decide whether there is substantial evidence to support the findings that claimant does not have ailments and physical conditions sufficient to prevent him from continually engaging in any substantial gainful activity or employment since March 2, 1966.

 The Court has reviewed with most meticulous and exhaustive care the 415 page record, considered the briefs of counsel, the statutory and case authorities and the work record of claimant prior to February, 1961, and the gradual decline in his physical condition.

 ISSUE

 Is the decision of the Secretary supported by substantial evidence so as to preclude the plaintiff from establishing a period of disability under Section 216(i) of the Social Security Act and from precluding the plaintiff from receiving disability insurance benefits under Section 223 of said Act?

 The answer is: "It is not." Applicant need not be bedridden or completely helpless in order to be disabled. Social Security Act, § 223(c)(2)(A) as amended 42 U.S.C.A. § 423(c)(2)(A).

 The conclusion is required that claimant is a "nondescript" or a job would have to be made for him.

 It is not disputed that claimant is unable to work at his usual occupation, that of a coal miner, and I do not believe substantial evidence exists in the record to justify the conclusion that claimant is able to do any other substantial gainful work for any regular or definite period of time taking into consideration his age, education, training, previous employment and work experience. No human being with the excellent work record which claimant had prior to 1961 becomes a malingerer, shies from work and loses all self-respect and ambition to provide for his wife and children without substantial reasons. In short, claimant was under a disability of such proportion and severity since March 21, 1966 as to have precluded him from engaging in substantial gainful activity for a continuous period of 12 months or more since said date.

 Although claimant has the ability to think, understand and communicate, his realm of possible gainful employment is surrounded with severe limitations. In fact, the only type of employment he could do would be that of a light and/or sedentary nature. He would not have any chance of passing a pre-employment medical examination especially with potential aggravation of pre-existing conditions which could give rise to substantial compensation claims and various other claims that could be made against an employer for conduct of omission or commission in the performance of his duties.

 The mental and physical condition of claimant is such that any type of employment which he might pursue with his background, education and working experience would require the privilege and right to work at such times and under conditions that would be satisfactory to him alone. We know that employment or jobs of this nature in our fast moving, competitive labor field do not exist.

 Claimant will soon be 54 years of age, weighs 211 pounds and has not followed gainful employment for eight years. It conclusively appears that claimant has many ailments and complaints:

 1. A duodenal ulcer which requires medication to variable degrees.


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