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PASKOWSKI v. FINCH

September 10, 1970

Andrew PASKOWSKI, Plaintiff,
v.
Robert H. FINCH, Secretary, Department of Health, Education and Welfare, Defendant


Gourley, District Judge.


The opinion of the court was delivered by: GOURLEY

This is an action filed pursuant to Section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), wherein plaintiff seeks judicial review of the decision of the Secretary of Health, Education and Welfare denying his claim filed on November 4, 1968 for disability insurance benefits and for a period of disability under §§ 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 a hearing was conducted on October 9, 1969. The Hearing Examiner held that plaintiff was not entitled to a period of disability or disability insurance benefits. Plaintiff filed a request for review of the Hearing Examiner's decision and, on November 20, 1969, said 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. 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 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, § 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 § 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).

 Section 216(i)(1)(A) of the Act, as amended, 42 U.S.C.A. § 416(i)(1)(A), provides that the term "disability" means:

 
"* * * inability to engage in any substantial gainful activity by reason of any medical determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months * * *."

 The definition of "disability" under § 223(d) of the Act, 42 U.S.C.A. § 423(d)(1)(A), as amended, is the same.

 
"'The test for disability consists of two parts: (1) a determination of the extent of the applicant's physical or mental impairment, and (2) a determination whether that impairment results in an inability to engage in any substantial gainful activity.'" Bujnovsky v. Celebrezze, 343 F.2d 868, 870 (3d Cir. 1965); Janek v. Celebrezze, 336 F.2d 828, 833 (3d Cir. 1964).

 It was the finding of the Hearing Examiner that plaintiff had mild pulmonary emphysema, possible mild arthritis of the lumbar spine and an asymptomatic gallbladder condition. While finding that these impairments may have precluded plaintiff from engaging in his former occupation in the coal mines and from other heavy work, the Hearing Examiner, nevertheless, found that plaintiff was able to engage in many forms of other employment of a light and/or sedentary nature. A review of the record as a whole indicates that there is substantial evidence to support the Hearing Examiner's findings both as to the extent of plaintiff's impairment and as to whether that impairment precluded plaintiff from engaging in any substantial gainful activity.

 At the time of the hearing, plaintiff was fifty-six years of age and a widower with three married children. After having completed the fifth grade, he worked for forty-three years in coal mines until May of 1968 when a chain block snapped, striking him across the chest and eyes. Plaintiff worked for two weeks following the accident, ceased work and has not sought other employment since then.

 Immediately following the accident, plaintiff was treated at the Conemaugh Valley Memorial Hospital in Johnstown as an outpatient. He received shots and pills and was told to return home. In July of 1968, plaintiff was admitted to the same hospital with an abdominal pain diagnosed as gallbladder disease. Although surgery was recommended, plaintiff desired to go home and was discharged six days after admission. Having a reoccurrence of abdominal ...


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