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TROTSKY v. RICHARDSON

March 10, 1971

John S. TROTSKY
v.
Elliott L. RICHARDSON, 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 April 2, 1970, denying the plaintiff's request for the review of a decision rendered by the hearing examiner on December 23, 1969, in which the examiner denied the plaintiff benefits under Section 216(i) and Section 223, respectively, of the Social Security Act.

 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. of New York 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 evidence in this case in the light of these elements of proof.

 Plaintiff, approximately fifty-two years of age, alleges that he became totally disabled on September 22, 1968. (P. 26) Except for automotive training in a "service school" following World War II, his formal education terminated at the eighth-grade level. (P. 26) He has never worked as a mechanic. (P. 27) Upon completion of his education in 1936, he went into the mines where he was employed until 1966. (P. 29) Commencing as early as 1964, he suffered shortness of breath, apparently resulting from anthracosilicosis. (P. 36) The condition progressed until about December 1967, when it was determined that he was suffering from an early third-stage anthracosilicosis with moderate emphysema. (P. 38) In the meantime, he voluntarily ceased his employment in the mine on the advice of his physician. (P. 42) He then performed the duties of a carpenter's helper from 1966 until September 1968, when he left of his own volition. (P. 31) He explained, as follows, the basis for leaving his job as a carpenter's helper:

 
"Q. What did you do on a firing range?
 
A. Pound fencing, fixing targets, carpentry work.
 
Q. That was your last job?
 
A. Yes, that was my last job. Walking up in a tower there, a man 75 years old, he could make it up without stopping. I had to make three or four stops but I knew something was wrong with me.
 
Q. You found it necessary to leave voluntarily? You ...

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