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SHEMANSKI v. MATHEWS

November 15, 1976

HENRY P. SHEMANSKI
v.
DAVID MATHEWS, Secretary of Health, Education and Welfare



The opinion of the court was delivered by: GORBEY

 GORBEY, J.

 This is an action under § 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare (Secretary), denying plaintiff's claim for disability insurance benefits. Presently before the court are cross-motions of the parties for summary judgment on an appeal from a final decision of the Secretary.

 Plaintiff filed a formal application on December 5, 1973 for disability benefits alleging disability as of August 27, 1973. The application was initially denied on December 14, 1973 by the Bureau of Disability Insurance. A request for reconsideration was filed on January 7, 1974. The case was reconsidered by the Bureau of Disability Insurance and on March 21, 1974, plaintiff's claim was again denied. Thereafter, on April 10, 1974, plaintiff requested a hearing. An administrative law judge, before whom plaintiff appeared with counsel on April 10, 1975, considered the case de novo, and on October 6, 1975, found plaintiff not entitled to benefits under the Act. The decision of the administrative law judge became the final decision of the Secretary when the Appeals Council approved it on February 9, 1976.

 The jurisdiction of this court has not been questioned. The only issue involved is whether the final decision of the Secretary is supported by substantial evidence or if the said decision is contrary to both the facts and the law applicable in this proceeding.

 Plaintiff's initial work experience was at age nine in 1931 when he worked inside coal mines helping to bring out coal. After graduation from high school in 1939, he was employed as a machine operator on a multiple drill press. In 1943, plaintiff entered the Air Force where he remained until the end of 1945. Subsequent to the war, plaintiff worked as a general laborer until 1952, when he commenced employment with the Alcoa Company in various capacities, including general laborer, but for the most part as a tool and die man. After fourteen years, plaintiff left Alcoa and went to work for a beer distributor for two years. In 1968, plaintiff left the beer distributor and went to work for Kaiser Mirawal in Port Carbon, Pennsylvania. At Kaiser Mirawal plaintiff was a material handler and in that capacity he handled asbestos sheets and cardboard plaster boards and other types of material that were used to construct masonite panels. In this particular job plaintiff used a circular saw in order to cut the various panels. As the result of this cutting, a great deal of dust flew into the air. The plaintiff worked continuously at Kaiser Mirawal until August or September, 1973.

 Sometime in the early '50's plaintiff became totally blind in one eye. However, this did not hinder plaintiff in his various employments. Plaintiff was hospitalized at the Ashland State General Hospital for about seven days from November 5, 1969 to November 12, 1969. The 1969 hospitalization was triggered by plaintiff's complaints of chest discomfort or tightness, dyspnea (shortness of breath), chills, a productive cough, and vomiting. In the hospital discharge summary, Dr. Miller, plaintiff's attending physician, diagnosed the problems as acute bronchitis and acute gastro enteritis. Approximately two years later, the records of the Ashland State General Hospital established that plaintiff was again hospitalized for a period of about 6 days from May 21, 1971 to May 27, 1971, and that Dr. Miller was again the attending physician. Plaintiff's primary complaint at that time was tenderness in the right upper and lower quadrants of the abdomen. Dr. Miller's diagnosis was acute cholecystitis, anthracosilicosis with emphysema. A chest x-ray during the 1971 hospitalization was construed as being compatible with generalized emphysema and suggestive of early pneumoconiosis. Dr. Miller again took chest x-rays on August 8, 1973, which x-rays were interpreted as compatible with pneumoconiosis and emphysema. Dr. Miller's diagnosis on August 28, 1973 was that plaintiff suffers from pneumoconiosis and emphysema. Dr. Miller, whom the government points out is a general practitioner, revealed that dyspnea (shortness of breath) would appear on mild to moderate exertion. Dr. Miller submitted a final report in March, 1975, diagnosing plaintiff's problems as emphysema and pneumoconiosis and registered the opinion that plaintiff was presently disabled.

 At the invitation of the Pennsylvania Disability Determination Section, Dr. B. B. Platt, an internist, performed an examination of the plaintiff on November 7, 1973. Dr. Platt's evaluation included ventilatory studies (pulmonary function tests) which were construed as showing mild to moderate obstructive and restricted lung disease that responded very well to bronchodilators (respiratory medication). Dr. Platt observed, although he had not seen the actual film, that a chest x-ray report indicated pneumoconiosis and emphysema, category II. Dr. Platt concluded that plaintiff's ventilatory defect was not sufficient enough to account for his symptoms. He did not offer any other explanation for plaintiff's symptoms which will be described hereinafter.

 At the hearing in April, 1975, three reports prepared over a period from September, 1973, to April, 1975 were submitted by Dr. William V. Dzurek, a radiologist, who also presented testimony in plaintiff's behalf during the course of the hearing. On the basis of his evaluation of plaintiff, Dr. Dzurek diagnosed the problem as first degree miner's pneumoconiosis and silicosis with emphysema of a very severe type and registered the opinion that plaintiff was totally and permanently disabled for any type of work.

 Subsequent to the hearing in April, 1975, plaintiff was referred by the administrative law judge to Dr. Leo J. Corazza, an internist. Dr. Corazza's initial report on July 14, 1975 did not give a definite opinion as to whether or not he felt plaintiff was totally disabled, but he did make the following observations:

 
1. "The spirogram is compatible with the diagnosis of some chronic pulmonary disease, obstructive in nature.";
 
2. "X-ray report: The chest x-ray demonstrates nothing definite. It is interpreted as mild findings, compatible with Cat. I. Pneumoconiosis.";
 
3. "Impressions: (1) Chronic bronchitis. (2) Pulmonary emphysema. (3) Cataract, O.D. (4) Possible coronary artery disease."; and
 
4. "I cannot account for the wide discrepancy in ventilatory studies from 1973-1975. There is a considerable amount of bronchospasm at the present time and ...

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