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BOSCHE v. SECRETARY OF HEALTH

April 23, 1971

Jacob T. BOSCHE
v.
SECRETARY OF HEALTH, EDUCATION AND WELFARE of the United States


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 23, 1970, denying the plaintiff's request for the review of a decision rendered by the hearing examiner on February 27, 1970, 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. 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.

 Therefore, we proceed to a consideration of the entire record.

 At the hearing held before the examiner on December 2, 1969, the plaintiff testified that he completed eight full grades in school. (P. 31) He was born on October 30, 1919, and is, therefore, fifty-one years of age. (P. 31) He started working at thirteen years of age on a coal truck, loading and unloading coal. (P. 32) At sixteen years of age, he commenced driving a truck. (P. 33) He continued to be employed as a truck driver until about 1941 when he was employed by the Aetna Steel Company as a grinder and sander from which he went into the armed forces on February 17, 1942. (P. 33) Upon his discharge from the armed forces in 1945, he again resumed truck driving until 1948, when he went into the trucking business for himself and so continued until November 1954, when he sold his trucking business and continued driving trucks for another company. He so continued until September 1957, when he moved to Florida where he continued to work for a trucking company and also did laboring work for a fabricating fence company. (P. 37) While so employed in 1960, he suffered an accident, (p. 38) which caused, as he described it, a mangled toe, a broken foot which required an operation, broken ribs, a tearing of flesh from the bones in the groin on the right leg and a spinal injury involving a disc, plus abrasions, etc. (p. 39) for all of which he collected money damages in the sum of $13,000.00, approximately two years later. (PP. 39 and 40) He then moved back to Pennsylvania where he was again employed as a truck driver until May 18, 1967, since which time he has not worked. (P. 42)

 He complains of severe pains in the chest, shortness of breath and a disabled left hand. (P. 42) He also complains of a stomach problem, (p. 43) is on a salt-free diet, (p. 44) is on a lowfat diet, (p. 44) and for his pains in the chest takes medicine which results in severe headaches (p. 45). In his bedroom he has an oxygen tank which he many times uses in order to sleep. He takes medicine for his intestinal and stomach problems, medicine for his chest problems, medicine for his nerves, and medicine for his blood pressure. (P. 46) Significantly, the pains in his chest sometimes radiate into his left arm. (P. 49) For his chest pains, he was originally given nitroglycerin which was ineffective and, accordingly, another drug was prescribed which, as he previously testified, causes severe headaches. (P. 50)

 By reason of an accident suffered in the armed forces, involving an injury to his left wrist and hand, he received service-connected disability compensation in the amount of $89.00 per month and by reason of his heart condition, he receives non-service connected disability compensation in the additional sum of $30.00 per month, for a total of $119.00 per month. (PP. 11 and 51)

 At the conclusion of the plaintiff's testimony, the examiner, on the record, recognized the difficulties involved in this case in the following language:

 
"HEARING EXAMINER: I might tell you that this is a very difficult case to come to a difficult conclusion on the evidence is very conflicting. It may very well be that this man has a coronary condition. Most of the evidence points against it but Dr. Dreifus I want you to know is perhaps one of the outstanding cardiologists in Philadelphia. He is attached to several hospitals. I understand he is a Professor of Cardiology." (PP. 48 and 49)

 Thus, the examiner indicated his intention to rely heavily upon the recommendations of Dr. Dreifus who has never seen or examined the plaintiff in this case and to whose report we shall refer in due course.

 Considering the plaintiff's condition in its totality, we are concerned with an accident in the Service, for which he is receiving a service-connected disability compensation, an accident while in Florida of considerable severity, for which he received $13,000.00 in compensation, a possible heart condition, a possible chest condition, and related conditions which plaintiff contends are totally disabling. The Veterans Administration has determined that the condition of the left wrist alone is "thirty per cent disabling". (See page 82) The Veterans Administration has determined that this constitutes a "vocational handicap". (See page 82) Such were the findings as of July 13, 1945. However, as of June 21, 1968, the Veterans Administration found that his service-connected disability had increased from ten per cent to forty per cent and thus awarded him compensation not only for the condition of the left wrist, but also for "hypertensive heart disease". (P. 98) On July 1, 1968, he was found by the Veterans Administration to be "totally disabled for insurance purposes" and entitled to a waiver of insurance premiums.

 Therefore, plaintiff's condition must be considered against a background of an accident in 1940, in which he fractured his left wrist and lost several months' work; an accident while in the military service in 1942, in which the left wrist was again fractured and rebroken; the development of lobar pneumonia in December 1955, which disabled him for several months; the development of a resulting lung condition by reason of which he went to Florida in 1957, where he was involved in a serious automobile accident resulting in a broken left ankle, broken ribs, lacerations, contusions and abrasions, nerve damage and spinal injury, as a result of which atrophy of the left arm and left leg now exists. (P. 88) Narrowing of the blood vessels is now alleged, with pains in the heart and chest, difficulty in breathing and shortness of breath. (P. 89)

 As early as January 1956, X-ray studies at the A.C. Milliken Hospital, Pottsville, Pennsylvania, disclosed a lung condition described by Dr. William Dzurek as follows:

 
"The examination shows an irregular mottling in the both bases which partly obliterates the normal lung markings, more marked on the left side. Marked accentuation of the hilar densities is noted bilaterally and moderate lung fibrosis was found in the mesial portions of the lung fields. The trachea is not displaced and the apical portions are well aerated. * * *
 
"Tent. X-ray Diag: Parenchymatous involvement of both bases of unknown etiology. The findings in the left base are suggestive of pneumonitis in the state of resolution. The right side is more suggestive of a pulmonary congestion on a cardiac ...

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