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JOHN LITWAK SOC. SEC. NO. v. SECRETARY OF HEALTH

April 12, 1977

JOHN LITWAK, Social Security Number: 164-18-0541, Plaintiff
v.
SECRETARY OF HEALTH, EDUCATION & WELFARE OF THE UNITED STATES, Defendant



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 Plaintiff filed an application for black lung benefits on June 1, 1973. The claim was initially disallowed by the Bureau of Disability Insurance ("Bureau") on April 18, 1974. On October 12, 1974, upon plaintiff's request for reconsideration, the claim was again denied. The denial was affirmed on February 6, 1975. The Administrative Law Judge before whom plaintiff and his attorney appeared considered the case de novo and found that the plaintiff was not entitled to benefits under the Act.

 Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), incorporated by § 413(b) of the Act, 30 U.S.C. § 923(b), provides in pertinent part that:

 
The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . . .

 The central issue, therefore, is narrowly circumscribed, i.e., whether there is substantial evidence upon the record as a whole to support the findings and the final decision of the Secretary that plaintiff was not totally disabled due to pneumoconiosis arising out of employment in the Nation's underground coal mines as of June 30, 1973.

 "Substantial evidence" has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). *fn1" "'It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance' of the evidence." Ginsburg v. Richardson, 436 F.2d 1146 (3d Cir. 1971).

 After a careful review of the record and of the briefs, and for the reasons hereinafter set forth, this Court is of the opinion that the record in this case must be remanded to the Secretary for further proceedings for the reason hereinafter set forth.

 Plaintiff, John Litwak, was born on March 7, 1912 in Pennsylvania. He completed the eighth grade and has no other special training.

 Plaintiff began working in the coal mines in 1929, and until 1943, when he entered the military service, he worked inside various mines as a general laborer dumping cars and shoveling and cleaning up coal. He returned to the mines in 1945, and remained there until 1947 when his family doctor, Dr. Schmidt, insisted that he leave the mines because of his health. *fn2" From 1947 until 1967, plaintiff worked as an inspector of batteries for the Electric Storage Battery Company of Connecticut. For six months in 1967 he worked as a bank custodian, and from 1969 until 1974 plaintiff worked for a mobile home construction company where he wired trailer walls. He left this job on the suggestion of his doctor because of shortness of breath.

 Plaintiff is presently retired on social security. Plaintiff testified that he has: difficulty breathing; has had shortness of breath since 1964 or 1965; has difficulty sleeping at night, having ten to twelve coughing spells each night; and has had a cough for at least 15 years, which produces a grayish phlegm. He further testified that he can walk only about a quarter of a block on level ground; can stand for only one half hour before he must sit down; is unable to do any chores around the house; is unable to perform even light recreational activities; and is presently on medication for his respiratory ailments.

 In order for plaintiff to be entitled to benefits under the Act, he must establish that (1) he was a miner, (2) he was totally disabled due to pneumoconiosis arising out of employment in the Nation's coal mines, and (3) he has filed a claim in accordance with the appropriate regulations. Since the Secretary has found that plaintiff was a coal miner and that he filed a proper application for benefits, the only matter in dispute is whether ...


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