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TOBOROWSKI v. FINCH

September 10, 1973

John J. TOBOROWSKI
v.
Robert 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 rendered on December 19, 1969, after granting the plaintiff's request for review of a decision rendered by a hearing examiner on May 12, 1969, and after consideration of additional evidence. The final decision holds that the plaintiff is not entitled to benefits under Section 216(i) and Section 223, respectively, of the Social Security Act, as amended, 42 U.S.C. § 416(i) and § 423.

 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.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 (3d 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 (3d 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. Labor 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.

 Plaintiff is the recipient of occupational disease and black lung benefits. This, however, is not conclusive upon the Secretary. Jesse Davis v. Richardson, 345 F. Supp. 1273, 1278.

 We have carefully reviewed the entire record, including extensive medical testimony and reports by various physicians. The Appeals Council has summarized the evidence as follows (pp. 6 and 7):

 
"SUMMARY OF THE EVIDENCE
 
" A brief review of the medical evidence of record before the hearing examiner reveals that the claimant had a chest X-ray on August 7, 1967, which indicated the possibility of early pneumoconiosis, but there was no evidence of any acute or active pulmonary infection. A complete internist examination in January 1968 resulted in a diagnosis of early hypertensive syndrome with some arteriosclerotic involvement, left ventricular enlargement, a cardiac classification of 11B, and slight lower lobe bronchiectasis based on ventilatory studies and X-rays. The internist stated that it was his overall impression that any dyspnea encountered by the claimant was most likely related to circulatory stress rather than pulmonary inadequacy.
 
"Another internist examination in July 1968 revealed a diagnosis of pneumoconiosis from history. The physician stated that the claimant had no significant findings on physical examination and that laboratory studies were all within normal limits.
 
"A Board-certified internist with a subspecialty in cardiovascular diseases, was asked to complete a medical questionnaire after examining the medical evidence of record. He indicated that there was no objective evidence of anthracosilicosis or emphysema, and that the claimant's complaint of shortness of breath and coughing represented several symptoms based on bronchial disease. He stated that the objective findings indicated that the severity of his condition was mild, the prognosis was good for present status, and limitations or restrictions would involve ordinary activity not entailing severe strain, lifting or prolonged walking.
 
The claimant's personal physician testified at the hearing on April 15, 1969, that he had treated the claimant for almost 5 years for severe anthracosilicosis and bilateral pulmonary emphysema.
 
In order to determine the functional limitations imposed by the claimant's pulmonary impairment, a special examination was arranged for him at government expense. This was conducted by Dr. H. L. Auerbach, a Board-certified internist, with a subspeciality in cardiovascular diseases, and his report is dated October 11, 1969. The physical examination revealed that the claimant was well developed, well nourished and did not appear acutely or chronically ill. The chest was normal and the lungs were clear to inspection, palpation, percussion and auscultation, although forced expiration did induce some wheezing in the mid-posterior chest. The rest of the physical examination was essentially normal. In regard to ventilatory studies, Dr. Auerbach indicated that on the normal spirographic tracing, both before and after bronchodilators, there was some evidence of air trapping after a single deep expiration. He stated that these findings are consistent with a minimal degree of pulmonary emphysema, without any functional impairment, and he reported that the ventilatory studies were essentially normal. Blood gas studies were conducted by a Dr. Edward P. Swartz, who reported normal blood gases before and after exercise. A chest X-ray revealed some slight widening of the interspaces in the lower chest and slight diffuse increase and accentuation of pulmonary markings. These findings were consistent with slight uncoiling of the aorta, slight diffuse pulmonary fibrosis (consistent with first stage anthracosilicosis) and minimal emphysema. Dr. Auerbach reported no evidence of bronchiectasis.
 
"Dr. Auerbach reported a diagnosis of pulmonary fibrosis and emphysema due to anthracosilicosis. In addition he stated that:
 
"'The objective findings of all of the various studies done in this man do not reveal evidence of a significant loss of function due to the lung disease with which he suffers. There is some evidence that he has emphysema and fibrosis, which interferes somewhat with his functional capacity. The ventilatory studies indicate that his capacity to exchange air is normal. The arterial blood gas studies show that he is able to exchange air between his lungs and his circulation. The carbon monoxide test indicates that there is no significant alveolar capillary block. The various exercise tolerance tests which have been done by two observers are essentially normal. The present physical examination also shows no clinical evidence of emphysema, indicating that that demonstrated on X-ray is indeed of minimal degree; he does have some wheezing on forced expiration, and he does have slight evidence of air trapping on the spirogram, both of which are consistent with each other, and with the fact that there is some decrease in his function due to lung disease. Nevertheless, there is nothing whatever in any of these studies to indicate that he has a total medical impairment. I cannot find any evidence of bronchiectasis, either by history or by examination, nor on the X-ray.
 
"'On the basis of the studies provided, it is my opinion that Mr. Toborowski can do work which does not require hard physical activity, or competitive effort. He is able to engage in all the ordinary activities of daily life, and on the basis of the alternatives you provided, I would say that he can perform medium activity on a sustained basis' (Exh. AC-1)."

 It will be noted that the testimony of the plaintiff's personal or attending physician was thus summarized in one brief paragraph (p. 6):

 
"The claimant's personal physician testified at the hearing on April 15, 1969, that he had treated the claimant for almost 5 years for severe anthracosilicosis and bilateral pulmonary emphysema."

 Turning then to an "Evaluation of the Evidence", the Council referred to the testimony of the vocational expert as follows (p. 9):

 
"* * * A vocational expert testified at the hearing that the claimant could engage in work as a light fixture assembler, assembly machine operator, punch press operator, electrical light fixture tester, inspector, hand packager, and ...

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