on plaintiff to establish that he contracted a disability, within the meaning of the Act, on or before that date.
Upon consideration of the medical and vocational evidence as well as plaintiff's own testimony at the hearing, the Hearing Examiner found as a fundamental fact that plaintiff's only existing condition on or before December 31, 1953 was an atopical dermatitis which, in of itself, did not render plaintiff disabled within the meaning of the Act. Plaintiff disputes this factual finding, asserting that the record substantiates his contention that he suffered from an additional eye ailment on or before December 31, 1953, which coupled with the dermatitis, rendered him then disabled.
The earliest medical evidence of record, and only medical report in evidence made within the period prior to and inclusive of December 31, 1953, is a summary of plaintiff's admission to a Veterans Administration Hospital on June 15, 1953 for treatment of an atopical dermatitis. The summary characterized plaintiff's condition as extensive scaling dermatitis of the face, neck and hands. Plaintiff was found to have responded gradually but progressively to treatment in the hospital, and it was expected that he would progress well outside of the hospital upon the continuation of an allergy diet, application of boric acid ointment and the avoidance of dust and other inhalants.
Two observations in the summary qualified the prognosis, however. Referring to prior admissions of the plaintiff for the same condition, the physician writing the summary observed that plaintiff customarily had failed to follow recommendations for treatment and, moreover, aggravated his condition by scratching. Plaintiff's industrial adaptability was stated as good from a medical standpoint, but it was specifically observed that a lack of motivation on the part of plaintiff limited this evaluation.
Nowhere in the hospital summary is there mention of an eye condition or visual impairment existing at or prior to the time of hospitalization. The first reference to such a condition is to be found in reports of plaintiff's ophthalmologist dated April 3, 1959 and April 11, 1959, which characterized an observed condition as bilateral keratoconus -- raised corneas in both eyes -- and suggested as a possible cause plaintiff's prior treatment with steroids. In the report of April 11, 1959, there was observed less irritation than on prior examination. No corneal transplant was deemed advisable at that time, however.
The continuing existence of the visual condition of bilateral keratoconus was confirmed by the medical report of plaintiff's dermatologist on November 9, 1964 and his letter of October 3, 1969. The report of November 9, 1964 indicates that said dermatologist treated plaintiff for atopical dermatitis as early as September 9, 1953, but no statement is made as to the onset of the visual impairment. The continuation of the visual impairment also was noted in a letter dated May 27, 1959 from plaintiff's ophthalmologist to an internist caring for plaintiff.
Under the special earnings requirements of the Act, it was incumbent upon plaintiff to establish the existence of his visual impairment on or before December 31, 1953. The only evidence so proffered by plaintiff was his own testimony as to symptomatic complaints and a letter dated May 27, 1959 from plaintiff's ophthalmologist to his internist. It was plaintiff's own testimony that his vision began to bother him early in 1947 and 1948, that he then had difficulty driving, that he mentioned his eyes were bothering him while in the Veterans Administration Hospital in 1953, but that the attending physicians there never treated or demonstrated concern for the condition. The letter dated May 27, 1959 from plaintiff's ophthalmologist to his internist stated generally, "We have been following your United Mine Worker patient, Mr. William A. Kupchella, since his discharge from the hospital. His eyes have not changed."
In the light of the conspicuous absence of reference to any visual impairment in the summary of plaintiff's admission to the Veterans Administration Hospital on June 15, 1953 and on the basis of the other evidence before him, the Hearing Examiner found that plaintiff had failed to meet his burden of establishing the existence of any ailment other than atopical dermatitis on or before December 31, 1953, the last date upon which plaintiff met the special earnings requirements of the Act.
In discounting plaintiff's own testimony to the contrary, the Hearing Examiner relied, in part, upon Section 404.1501(c) of Social Security Regulations No. 4, 20 C.F.R. § 404.1501(c), which provides:
"A physical or mental impairment is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. Statements of the applicant, including his own description of his impairment (symptoms) are, alone, insufficient to establish the presence of a physical or mental impairment."
Impliedly, the Hearing Examiner also discounted as insufficient and inconsistent with other medical evidence the general and retrospective observation of plaintiff's ophthalmologist, in his letter to plaintiff's internist dated May 27, 1959, that the condition of plaintiff's eyes had existed unchanged since his discharge from the Veterans Administration Hospital on July 2, 1953.
The finding of the Hearing Examiner that plaintiff failed to meet his burden of proving the existence of a visual impairment on or before the date upon which he last met the special earnings requirements of the Act is supported by the administrative record and must be affirmed. Plaintiff failed to establish a visual impairment "demonstrable by medically acceptable clinical and laboratory diagnostic techniques" during the requisite period. Section 223(d)(3) supra, and Social Security Reg. No. 4, Section 404.1501(c), supra. In weighing the balance of the credible evidence, the Hearing Examiner was not required to accept the personal statements of the applicant as to the onset of the visual impairment, absent substantial medical evidence supporting those statements.
The vocational expert called on behalf of the Secretary testified that, at the time when plaintiff last met the earning requirements of the Act, there was available to him light work which required little physical exertion
and which could be found in an environment free of dust, fumes and other possible irritants to his skin. Specifically enumerated were the jobs of timekeeper, lot boy, expediter, service clerk and hospital attendant. In rendering this judgment, the vocational expert proceeded upon the assumption that plaintiff's visual acuity in December of 1953 was reasonably good and that plaintiff's then existing impairment was the atopical dermatitis diagnosed upon admission to the Veterans Administration Hospital in 1953. This assumption was consistent with the medical evidence of record.
There was, therefore, substantial evidence to support the findings of the Hearing Examiner that plaintiff's impairment at the time when he last met the special earning requirements of the Act, an atopical dermatitis, did not preclude his engaging in substantial gainful activity in an atmosphere free of dust, chemicals or other irritants.
Although plaintiff was receiving a service connected disability pension from the Veterans Administration on or before December 31, 1953, the requirements of the Veterans Administration differ from the requirements of the Social Security Administration with respect to the establishment of disability, and a finding of disability by the Veterans Administration is not binding on the Secretary. Gee v. Celebrezze, 355 F.2d 849 (7th Cir. 1966); Payne v. Cohen, 293 F. Supp. 48 (E.D. Ky. 1968); Ferrell v. Gardner, 260 F. Supp. 996 (S.D.W. Va. 1966).
In accordance with the foregoing, the Court concludes that defendant's Motion for Summary Judgment should be granted. An appropriate Order is entered.