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CALPIN v. FINCH

August 11, 1970

James P. CALPIN, Plaintiff,
v.
Robert H. FINCH, Secretary, Department of Health, Education and Welfare, Defendant


Gourley, Senior District Judge.


The opinion of the court was delivered by: GOURLEY

This is an action filed pursuant to § 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), wherein plaintiff seeks review of the decision of the Secretary of Health, Education and Welfare denying his claim filed on December 19, 1967 for disability insurance benefits and for a period of disability under Sections 223 and 216(i) of the Social Security Act, 42 U.S.C.A. §§ 423 and 416(i).

 Plaintiff's application was denied by initial decision of the Bureau of Disability Insurance and upon reconsideration. A request for hearing was granted and hearings conducted on July 9, 1969 and July 29, 1969. The Hearing Examiner held that plaintiff was not entitled to disability insurance benefits or for a period of disability under the Act. A request for review of the Hearing Examiner's action was filed on September 9, 1969, and on October 8, 1969 the request for review was denied by the Appeals Council. The denial by the Appeals Council became the final decision of the Secretary of Health, Education and Welfare.

 A Complaint was timely filed in the United States District Court for the Western District of Pennsylvania pursuant to § 205(g), supra. In response, defendant filed an Answer and a certified copy of the administrative transcript as required by § 205(g), supra. Subsequently, defendant filed a Motion for Summary Judgment. Counsel for the respective parties have filed written briefs in support of their positions on the Motion and have agreed to waive oral argument. Upon review of the administrative record, the pleadings, and the briefs of counsel, the Court is compelled to grant the Motion for Summary Judgment.

 Pertaining to the scope of judicial review, Section 205(g), supra, provides as follows:

 
"The Court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * *"

 Under this Section and Section 10(e) of the Administrative Procedure Act, 5 U.S.C.A. § 706, the Court is limited to "ascertaining whether on the record as a whole there is substantial evidence to support the Secretary's findings of fact." Goldman v. Folsom, 246 F.2d 776, 778 (3d Cir. 1957).

 Plaintiff claims a disability commencing on January 30, 1966 when an automobile in which he was riding was struck from the rear by a bus causing him injury to his back. Plaintiff was twenty-four years of age at the time of the occurrence. As a result of the accident, plaintiff sustained a fracture of the transverse process of D-11, and, in February of 1967, he was admitted to Mercy Hospital of Johnstown for a spinal fusion of D-10, 11, 12 and L-1. The fusion was solid but plaintiff claims that he continues to suffer considerable back pain which renders him totally disabled and unable to engage in any substantial gainful employment.

 Plaintiff has had twelve grades of schooling. He was trained in a vocational course in high school, which included four years of wood and metal shop and a year of typing. From January of 1960 to December of 1962 he served in the armed forces, where he first was trained as a lineman and then was placed in a radio section, operated a cryptograph and supervised radio. At age 21, plaintiff accepted his first job with General Telephone Company. He has received certificates from cable or splicing school. For two and one-half years he worked as a lineman, until the occurrence of the accident in question.

 Immediately following the accident, plaintiff was admitted to Memorial Hospital in Johnstown. He was absent from work for five weeks and then returned to work as a lineman. However, experiencing some pain, plaintiff claimed that it was necessary for the remainder of his crew to do his heavy work. Plaintiff worked from March of 1966 until September of 1966 and then found it necessary to leave work because of the pain. He entered Lee Hospital in Johnstown for a course in physical therapy and remained absent from work for two months.

 He then returned to work from November of 1966 to January of 1967 as a cable splicer, but, again because of the pain, found it necessary to leave work. In February of 1967 he was hospitalized at the Mercy Hospital in Johnstown for a spinal fusion. Following this hospitalization, he remained absent from work for one year. He then returned to work from January 15, 1968 to July 24, 1968, when he again quit his job. Plaintiff contends that he left work because he was not doing the heavy work which he was supposed to be doing and was told by the company that he should either "get fixed up or not come back." Plaintiff has not worked since July 24, 1968, nor has he sought employment.

 At the hearings on July 9, 1969 and July 29, 1969, plaintiff appeared and testified on his own behalf. Also the testimony of an impartial vocational expert was received. The essential finding of the Hearing Examiner was that plaintiff had a chronic mid-back problem which was minimal and associated with few, if any, abnormal medical findings associated with his allegations of thoracic pain. It was concluded that plaintiff had nothing more than mild or minimal discomfort on full thoracic motions and that this discomfort did not preclude him from performing light and sedentary jobs designated in the testimony of the vocational expert.

 It is the plaintiff's contention that the Hearing Examiner, in making these findings, has disregarded the testimony of the plaintiff himself. At the hearing, plaintiff testified that various motions by him caused him to feel like he had "a nail in his back" or a throbbing or pounding sensation in his back. He stated that he could only lift 50 lbs. once or twice without then experiencing such pain, that he would have difficulty in repeatedly lifting weights of 15 to 20 lbs. because of the pain he would experience in bending or stooping, that he could not twist or turn with a weight, and that he could not sustain a weight upon his outstretched arms but only could hold a weight against his person. He testified that he could only stand or walk for about an hour without being required by the pain to sit down. He stated that he could sit on a hard seat for about an hour, but then the pain would require him to stand up. He stated that he could sit in a soft seat for several hours without being required to stand. Plaintiff also stated that he could not work continuously for eight hours in a day in any type of work without having an opportunity to lie down for an hour after three or four hours of work.

 It is clear that the Hearing Examiner did not accept claimant's testimony as conclusive with respect to the severity of the pain experienced by him but rather considered the statements of the claimant in the context of other evidence appearing before him. The medical evidence indicated that plaintiff's fusion of his lower dorsal spine was solid. There was no evidence of deficits in the musculature, sensory, reflex or circulatory areas. Also, myelogram subsequent to the fusion showed no defect. With respect to plaintiff's range of motion after the fusion, the medical evidence, with but a singular exception, indicated that the motions of plaintiff's thoracic spine were unrestricted. At the conclusion of plaintiff's stay at the St. Francis General Hospital for an ...


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