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LEMIN v. FINCH

February 19, 1971

Charles LEMIN
v.
Robert H. FINCH, Secretary of Health, Education and Welfare


Troutman, District Judge.


The opinion of the court was delivered by: TROUTMAN

This action is brought under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare. The final decision in this case is that of the Appeals Council dated August 5, 1969, denying the plaintiff's request for the review of a decision rendered by the hearing examiner on May 20, 1969, in which the examiner denied the plaintiff benefits under Section 216(i) and Section 223, respectively, of the Social Security Act, as amended.

 The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. 42 U.S.C. § 405(g). This Court has no authority to hear the case de novo. Thomas v. Celebrezze, 331 F.2d 541 (4th Cir. 1964); Mauldin v. Celebrezze, 260 F. Supp. 287 (D.C.S.C. 1966). The question here involved, therefore, is whether there is substantial evidence to support the Secretary's decision. To answer this question, it is the duty of this Court to look at the record as a whole. Boyd v. Folsom, 257 F.2d 778 (3rd Cir. 1958); Klimaszewski v. Flemming, 176 F. Supp. 927 (E.D. Pa. 1959).

 The test for disability consists principally of two parts: (1) a determination of the extent of the physical or mental impairment and (2) a determination whether that impairment results in an inability to engage in substantial gainful activity. Stancavage v. Celebrezze, 323 F.2d 373 (3rd Cir. 1963); Klimaszewski v. Flemming, supra, 176 F. Supp. at page 931.

 "Substantial evidence" has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S. Ct. 1018, 1026, 16 L. Ed. 2d 131 (1966); Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938). It must be enough, if the trial were to a jury, to justify a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. If there is only a slight preponderance of the evidence on one side or the other, the Secretary's finding should be affirmed. Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir. 1962).

 There are four elements of proof to be considered in making a finding as to plaintiff's ability or inability to engage in any substantial gainful activity. They are: (1) medical data and findings, (2) expert medical opinions, (3) subjective complaints, and (4) plaintiff's age, educational background, and work history. Dillon v. Celebrezze, 345 F.2d 753, 755 (4th Cir. 1965); Thomas v. Celebrezze, supra, 331 F.2d at 545; Underwood v. Ribicoff, supra, 298 F.2d at 851.

 We proceed to a consideration of the entire record to determine whether there is substantial evidence to support the Secretary's decision that the plaintiff is not entitled to disability insurance benefits. (P. 19)

 At the hearing held on May 15, 1969, the plaintiff, Charles Lemin, testified that he was born in 1915 (p. 29), making him approximately fifty-five years of age. He quit school after completing the fifth grade and before completing the sixth grade at sixteen or seventeen years of age. (P. 30) That he had not completed the sixth grade at sixteen or seventeen years of age strongly indicates that this individual is not mentally adaptable to new and unfamiliar assignments. As previously indicated, his educational background is a factor which must properly receive consideration in determining the validity of his claim. Dillon v. Celebrezze, supra; Underwood v. Ribicoff, supra. After leaving school, he then painted fences "and stuff like that" until he went into the coal mines where he was employed for a period of approximately twelve years, hand-loading coal. (PP. 30 and 31) He did nothing else except the hand-loading of coal to the time when he left the mines, but then later returned for a period of approximately sixteen months when again he hand-loaded coal. (P. 31) When employment in the mines became difficult to obtain, he left the mines and joined his brother "in the city" where he obtained work with a concrete burial vault company as a truck driver, but principally as a laborer, hauling concrete and handling and delivering vaults. (PP. 31 and 32) At the suggestion of his Draft Board he then obtained employment with a gear manufacturing company where he was employed for approximately two years and was thereafter employed by the Mammoth Product Company operating a punch press and turner, lathe and grinder and where he also did laboring work, moving bolts and nuts from one place to another. (PP. 32 and 33) He was so employed moving bolts and nuts "from one place to another" until April 1959 when he was told by one of his superiors that he was not doing a very good job. (P. 33) According to the plaintiff, his superior stated "they tell me you get dizzy spells at the machine and I think (the thing) for you to do is to quit altogether". Plaintiff conceded that he had been suffering from dizzy spells and that he would "black out". (P. 33) Accordingly, at the direction of his superior, the plaintiff quit his employment and was given a check by his employer "to bring me back to Pennsylvania". (P. 33) He has not worked since that time (P. 34).

  The plaintiff testified that in addition to dizzy spells and black-outs he suffered from pains in his stomach and in his chest as a result of which he would sometimes "double up with pain". (P. 34) He was hospitalized and found to be suffering from a peptic ulcer. (P. 35) This condition existed as early as 1958 (P. 35) and as the record will subsequently indicate, he apparently also was concurrently suffering from a chest condition which is later detailed in the record. As early as 1960 he suffered from pneumonia, (P. 35) and on one occasion "almost bled to death" by reason of the peptic ulcer. (P. 35) Although he was earning $2.83 per hour while employed until 1959, (P. 45) he was, upon ceasing his employment, obliged to go on public assistance or welfare. (P. 45) By reason of the fact that he was on public assistance or welfare, he was, when hospitalized and treated from time to time under the Public Assistance program, under the care of a different physician on each occasion and this by reason of the fact, as he explained it, that when on public assistance "you go to whatever attending doctor is on". (P. 41) Thus, on each occasion when his physical condition forced him to obtain medical care and treatment, he was treated by a different physician. On each of such occasions he was treated for the specific complaints which were particularly acute at the time and little or no attention was paid to his condition generally or to symptoms from which he may have suffered chronically. Thus, by reason of his impecunious status, the record leaves much to be desired from the standpoint of qualified medical opinions as to his condition commencing in 1959 and extending through 1963 *fn1" and to the time of the hearing before the Examiner in 1969.

 Of the several physicians, who saw the plaintiff on specific and isolated occasions as a public assistance patient and who treated him for specific complaints which were then acute, only one saw and treated the plaintiff over an extended period of time from 1963 to 1969. He was, according to the plaintiff's testimony, Dr. C. L. Eisenberg, who was treating the plaintiff at the time of the hearing before the Examiner on May 15, 1969.

 
"Q. Are you being treated by a physician now?
 
A. Oh Yes.
 
Q. Who?
 
A. C. L. Eisenberg."
 
(P. 36)

 According to Dr. Eisenberg, he first treated the plaintiff in 1963. (P. 127) According to Dr. Eisenberg the plaintiff's illness, from whatever cause, first occurred or began in 1958 and forced the plaintiff to cease work in 1959. *fn2" (P. 127)

 Whether because of his lack of education or because of the failure of the doctors to have confided in him, the fact remains that the plaintiff fails in testifying in his own behalf to accurately describe his physical condition. For example, he suggests that Dr. Eisenberg was treating him for "ulcer and emphysema", (P. 36) whereas Dr. Eisenberg's findings indicate extreme nervousness, wheezing, pain in the stomach, nausea, shortness of breath and rattling in the chest. He suggests a duodenal ulcer, pulmonary emphysema, bronchospasm, and anxiety state, chronic, severe. (P. 127). Whatever understandable deficiencies may exist in the plaintiff's testimony, as it would support his claim, the fact is that he is and has been taking a series of medications and drugs indicating the existence of a nervous condition along with the ulcerous condition and accompanied by an emphysematous condition of the chest resulting in severe shortness of breath. (PP. 36 and 37) His condition since 1959 has been described by the plaintiff as follows:

 
"Q. When you stopped working in April '59, did you ever attempt to get lighter work of some kind?
 
A. I couldn't seem to do anything at all.
 
Q. What have you been doing since then?
 
A. I haven't done anything, now I can't do anything at all, I haven't done anything but sit around, watch television or something because I wasn't able to walk around, I couldn't breathe if I would walk around.
 
Q. That's lately you mean?
 
A. No, it was that way ever since '59.
 
Q. You were short of breath then?
 
A. Yes, but I went along with the doctor, the doctor who told me, just when I would walk into his office from the car I would be coughing something awful and I would tell him and he said 'well it must be the pressure from your stomach, it will put pressure in your lungs and that's the reason you can't breathe.'
 
Q. You didn't work for ten years?
 
A. That's right.
 
Q. Have you been maintaining yourself?
 
A. I have been on assistance, that's all I could get.
 
Q. What does it amount to now?
 
A. I receive $123 every two weeks.
 
Q. Twice a month?
 
A. Yes, and it isn't very much when you're paying $60 a month rent.
 
* * *
 
Q. How about the things around the home? Are you able to do anything?
 
A. I am not able to do anything around the house at all.
 
Q. How now or then?
 
A. Well I haven't been since '60 anyway, I haven't been able to do anything around the house; the worst of the time when I would go out and try to do a little garden in the back '59 or '60 I would sit down flat on the ground and try to pull weeds or something out of the garden, but I got to the point where I couldn't even do that anymore.
 
Q. On account of the shortness of breath?
 
A. That's right.
 
Q. Do you drive a car?
 
A. Not anymore.
 
Q. When was the last time?
 
A. Oh the last time I drove a car was '65 I guess. I could drive in '65 but not very much."
 
(PP. 37, 38 and 39)

 He further testified:

 
"Q. How many rooms do ...

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