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PISARCIK v. WEINBERGER

July 26, 1973

James S. PISARCIK
v.
Caspar WEINBERGER, Secretary of Health, Education and Welfare


Snyder, District Judge.


The opinion of the court was delivered by: SNYDER

SNYDER, District Judge.

 This is an action filed pursuant to Section 205(g) of the Social Security Act, 42 U.S.C.A. Section 405(g), wherein the plaintiff seeks a review of the decision of the Secretary of Health, Education and Welfare denying his claim, filed on January 5, 1973, 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. Section 423 and Section 416(i).

 A Complaint was duly filed in the United States District Court for the Western District of Pennsylvania pursuant to Section 205(g), supra. In response, defendant filed an Answer and a certified copy of the administrative transcript as required by Section 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.

 I. DISCUSSION

 The scope of judicial review is set forth in the statute 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 under the Administrative Procedure Act, 5 U.S.C.A. Section 706:

 
"Our review of the hearing examiner's findings is limited to 'ascertaining whether on the record as a whole there is substantial evidence to support the Secretary's findings of fact'."

 Miller v. Richardson, 457 F.2d 378 (3d Cir. 1972); Braun v. Ribicoff, 292 F.2d 354 (3d Cir. 1961); Goldman v. Folsom, 246 F.2d 776 (3d Cir. 1957).

 Plaintiff claims a disability resulting from pneumoconiosis with concomitant tuberculosis infection; osteoarthritis of the mid-cervical region with nerve compression; and cervical pain. On June 25, 1971, at age 41, the plaintiff allegedly quit work as a result of a pain in his chest, back pain, tiredness and dizziness. His own doctor recommended that he quit work as a miner. On June 28, 1971 an evaluation was done by Dr. M.C. Williams, a specialist in internal medicine. At that time, the plaintiff stated that he was barely able to do his work in the mines. Dr. Williams performed an external pulmonary spirogram (a tracing or graph of respiratory movements) which was felt to be within normal limits. The following day an arterial blood gas analysis was performed and it was concluded that this study was within normal limits. However, chest X-rays taken on June 28, 1971 showed pneumoconiosis with coalescence of nodules. Dr. Williams' medical conclusion was then set forth as follows:

 
"I feel that Mr. Pisarcik's dyspena is most likely on the basis of his pneumoconiosis. There may be some emotional factors here, but I feel that his pneumoconiosis is fairly extensive. I feel that further exposure to dust should be eliminated and attempts at rehabilitation to a line of work where dust exposure would not be a hazard is indicated. I feel that the man's progress is guarded. I certainly feel that rehabilitation to a different line of work should be possible if the patient's self-motivation is sufficient."

 The plaintiff claims that he has shortness of breath and dizzy spells, and is able to walk only about two blocks as the slightest bit of exertion causes him shortness of breath. In addition to the pulmonary impairment, the plaintiff claims general dizziness and pains in the back which prevent him from stooping, climbing or bending, and that with the combination of these conditions, ...


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