Baker v. Gardner

• Decision Date: 05 July 1966
• Docket Number: No. 15586.,15586.
• Citation: 362 F.2d 864
• Parties: William H. BAKER, Appellant, v. John W. GARDNER, Secretary of the United States Department of Health, Education and Welfare, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

362 F.2d 864 (1966)

William H. BAKER, Appellant, v. John W. GARDNER, Secretary of the United States Department of Health, Education and Welfare, Appellee.

No. 15586.

United States Court of Appeals Third Circuit.

Argued March 29, 1966.

Decided July 5, 1966.

Kenneth J. Yablonski, Washington, Pa., for appellant.

Robert E. Tucker, Asst. U. S. Atty., Pittsburgh, Pa. (Gustave Diamond, U. S. Atty., Pittsburgh, Pa., on the brief), for appellee.

Before STALEY, Chief Judge, GANEY, Circuit Judge, and SHERIDAN, District Judge.

SHERIDAN, District Judge.

This is an appeal by William H. Baker, plaintiff-appellant, from an order of the district court denying his motion for summary judgment and granting a cross-motion for summary judgment of the Secretary of Health, Education and Welfare, defendant-appellee.

On February 5, 1963, plaintiff filed his application with the Bureau of Old-Age and Survivors Insurance, Social Security Administration, Department of Health, Education and Welfare, pursuant to Sections 216(i) and 223 of the Social Security Act, 42 U.S.C.A. §§ 416 (i) and 423, for the establishment of a period of disability and for disability insurance benefits, alleging that he had been unable to work since June 29, 1962,¹ because of silicosis. The claim was denied by the Bureau of Old-Age and Survivors Insurance. Plaintiff then requested and received a hearing before an examiner who also denied the claim. The Appeals Council, Bureau of Hearings and Appeals, Social Security Administration, denied a request for review of the hearing examiner's decision. This decision, therefore, became a final decision of the Secretary, subject to review in the district court pursuant to Section 205(g) of the Act, 42 U.S.C.A. § 405(g). Hodgson v. Celebrezze, 3 Cir. 1963, 312 F.2d 260.

The evidence established the following facts: Plaintiff was almost 60 years old when his application was filed. He is now 62 years old. He completed the seventh grade and has no further education or training. At age 14, he went to work in a coal mine and eventually became a brakeman and then a motorman which required him to operate a locomotive used to pull coal cars from the mine. He worked as a motorman until 1959 when he became ill and was hospitalized for about a month and a half at The Western Pennsylvania Hospital. His condition was diagnosed as "Pneumoconiosis (silicotic); pericarditis, probable tuberculous." After a home convalescence of nine months, on March 1, 1960, he returned to the mine and was given heavy outside work with a crew whose job it was to level and repair tracks and clean ditches. He missed one and sometimes two days every week because of his silicosis which caused him to be short-winded and light-headed. He testified that during this time his condition worsened and his fellow workers assumed some of the responsibilities to help him stay on the job.

Plaintiff was laid off in June 1962, when the mine closed. He started to collect unemployment compensation. The mine reopened in December 1962, but he refused to work on the orders of his doctor. Shortly thereafter, he stopped applying for unemployment compensation and applied for Workmen's Compensation benefits. He received a Pennsylvania Workmen's Compensation Board award for total and permanent disability, effective March 6, 1963.

In reports of February 8, 1963, and January 16, 1964, Dr. Connelly, who has been plaintiff's personal physician since 1956, diagnosed plaintiff's condition as far advanced pneumoconiosis with progressive massive fibrosis of the lungs, pulmonary emphysema (minimal in one report), and inactive pulmonary tuberculosis. He indicated that walking causes dyspnea, and that shortness of breath, cough, and associated discomfort cause him to be totally disabled from heavy work. He stated that episodes of nervousness over his condition since 1962 disabled him from light work. Dr. Connelly also found that plaintiff had degenerative arthritis of the spine, and arthritic pains in most joints which contribute to his disability. Electro-cardiographic findings indicated an underlying, though asymptomatic, arteriosclerotic heart disease.

Doctors Edward and Jerome Lebovitz, also plaintiff's physicians, reported in March, May and December 1963,² that plaintiff suffered from pneumoconiosis, anthracosilicosis, pulmonary fibrosis and pulmonary emphysema. In one report, pulmonary function studies are described as somewhat equivocal in that plaintiff had a good vital capacity but a reduced maximum breathing capacity. It also stated that x-rays show "extensive disease." Dr. Jerome Lebovitz limited plaintiff's activities to "sedentary external." Dr. Edward Lebovitz concluded that plaintiff is permanently and totally disabled and that his condition would prevent him from passing a preemployment examination.

Dr. Kleinschmidt, plaintiff's physician, reported in May 1963, on the results of a physical examination. He referred to a report of chest x-ray which is not included in the record, and concluded that an electrocardiogram showed no diagnostic abnormality. He also concluded that plaintiff is totally and permanently disabled by silicosis.

Opposed to this medical evidence was a report of a March 1963, examination by Dr. Hale, engaged by the State agency for disability determination.³ He concluded:

"CHEST X-RAY: At West Penn Hospital, see report that is attached. My personal interpretation is that there is moderate evidence of diffuse nodular infiltrate in the upper 2/3rds of both lung fields, strongly suggestive of silicosis, but not excluding the diagnosis of co-existing tuberculosis. There appears to be also an increase in AP diameter suggestive of emphysema. Heart size was normal.

Report on spirographic ventilation studies is attached.

"SUMMARY: Vital capacity was 90% of normal. The MBC was 111% of normal, quite unexpected for the patient\'s clinical history. Timed vital capacity was slightly abnormal in that the 1 sec. was 53% and the 2 sec. was 86%, 3 sec. was 100% of normal. In general the studies indicate that ventilatory function is normal with some question as to if there is some obstructive disease.

"COMMENT: This patient has a history of being diagnosed and treated for active pulmonary tuberculosis during the past 13 years, apparently over two episodes of illness. Patient has been able to work in the mines in spite of his illness most of the time until work was not available and since that time feels much disabled. Physical examination reveals minimal evidence of incapacity and surprisingly the ventilatory studies sic degree of emphysema but certainly with a MBC of 111% it cannot be claimed to be a significant degree of impairment at this time. Obviously the patient does have a very definite infiltrated chest X-ray strongly suggestive of silicosis that would have to be interpreted as moderately advanced by X-rays findings alone. Again it would be a hazard for the patient to work in the mines or any other dusty trade with a history of active tuberculosis along with the X-ray findings of silicosis that are present. I am not impressed that the patient has a marked degree of impairment at this time and probably at most is mild with considerable pschologic overlay.

"FINAL DIAGNOSIS: (1) Silico-tuberculosis, moderately advanced, bilateral, apparently inactive at this time with X-ray evidence of some emphysema with minimal or no ventilatory impairment by spirographic determination. No coronary heart disease."

At the request of the State agency, Dr. Hale also examined and tested plaintiff in May 1963, for exercise tolerance.

"* * * The patient was able to complete this exercise without undue fatigue and was able to talk thruout the examination without any signs of significant dyspnea. There was no evidence of palor sic, cyanosis or exhaustion. Vital signs at rest, after exercise and after 3 minutes of recovery are given as follows: p. XXX-XXX-XX, R. 16-18-16, B.P. 140/90 — 120/80 — 120/80. No cyanosis was evident on completion of exercise. I would interprete sic this study as showing no evidence of dyspnea at the casual level of walking for a period of six or more minutes."

The district court properly viewed the findings in the light of the two part test for disability, viz., (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 any substantial gainful activity. Bujnovsky v. Celebrezze, 3 Cir. 1965, 343 F.2d 868. The court found there was substantial evidence⁴ to support the hearing examiner's conclusion that plaintiff has a pulmonary disorder not resulting in a marked degree of impairment. The court approved the hearing examiner's reliance on the report of Dr. Hale to the exclusion of the reports of plaintiff's physicians. We cannot say this was error.

The district court did not comment on the arthritic, coronary and nervous conditions with which some of the medical evidence showed the plaintiff was afflicted, and which the hearing examiner considered. The hearing examiner found that these conditions were of "no consequence." We have examined the medical reports and have considered the hearing examiner's findings. The findings on the severity of these conditions, which we interpret to mean either no impairment or only slight impairment, are supported by substantial evidence.

In applying the second part of the test, the district court held that plaintiff did not meet his burden because he did not offer evidence that there were no employment opportunities in the community for a man in his condition or that employers had refused to hire him because of his alleged impairment. This was error. A claimant is not required to go down a list of jobs and disprove his capacity for each of them or their availability to him as an actual opportunity for employment. Cochran v. Celebrezze, 4 Cir. 1963, 325 F.2d 137; Jarvis v. Ribicoff, 6 Cir. 1963, 312 F.2d 707. It is...