Bujnovsky v. Celebrezze, 14843.

• Decision Date: 07 April 1965
• Docket Number: No. 14843.,14843.
• Citation: 343 F.2d 868
• Parties: Frank A. BUJNOVSKY v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, United States of America, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

343 F.2d 868 (1965)

Frank A. BUJNOVSKY v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, United States of America, Appellant.

No. 14843.

United States Court of Appeals Third Circuit.

Argued October 23, 1964.

Decided April 7, 1965.

Frederick B. Abramson, Dept. of Justice, Washington, D. C. (John W. Douglas, Asst. Atty. Gen., Drew J. T. O'Keefe, U. S. Atty., Sherman L. Cohn, Department of Justice, Washington, D. C., on the brief), for appellant.

Harry W. Lightstone, Pottsville, Pa., for appellee.

Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.

KALODNER, Circuit Judge.

Plaintiff commenced this action pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to obtain review of the final decision of the Secretary of Health, Education and Welfare, which denied his application for the establishment of a period of disability and for disability insurance benefits under §§ 216(i) and 223 of the Act, as amended, 42 U.S.C. § 416(i) and 423.

The plaintiff's application for statutory benefits was filed on March 7, 1961, and claimed inability from September 7, 1960, to engage in any substantial gainful activity on account of anthracosilicosis. This application was denied on June 5, 1961. A request for reconsideration was filed by plaintiff on August 22, 1961. On October 4, 1961, the request for reconsideration was acted upon by letter advising plaintiff that the denial of his application remained unchanged. This letter acknowledged that although plaintiff was prevented by his condition from performing work which required strenuous physical exertion, there was no evidence that he was not able to perform light physical activity. Thereafter, plaintiff requested and was granted a hearing. At this hearing, evidence of plaintiff's physical condition was adduced and plaintiff testified to his inability to find light work. The Hearing Examiner denied the claim on the ground that plaintiff had not sustained his burden under Section 223. Further review was denied by the Appeals Council of the Bureau of Hearings and Appeals, making the Hearing Examiner's decision the final order of the Secretary of Health, Education and Welfare.

Plaintiff then prosecuted this action. The district court granted his motion for summary judgment, remanding the cause for the determination of the period of disability and benefits to which plaintiff was thus entitled. 223 F.Supp. 473, E.D.Pa.1963. In so doing, the district court concluded that while the record supported the administrative findings as to the extent of the plaintiff's disability, there was absent any attempt by the Secretary to show that light work of a specific nature was available to the plaintiff. The district court purported to follow our decisions in Hodgson v. Celebrezze, 312 F.2d 260 (1963), and Stancavage v. Celebrezze, 323 F.2d 373 (1963). The Secretary has appealed from the district court's order.

On this appeal, the Secretary contends that the record supports the Hearing Examiner's finding that the plaintiff failed in his burden, under the statute, to show his inability to engage in a "substantial gainful activity". He urges that this case is precisely like Dupkunis v. Celebrezze, 323 F.2d 380 (3d Cir. 1963). He contends, alternatively, that the cause should be remanded to the Secretary for a determination as to the occupational opportunities reasonably available to plaintiff, if any. In this latter respect, picking on the particular phraseology of the district court's opinion, he contends that he is not required to show the existence of a specific job in the area in which plaintiff resides which plaintiff could perform.

The plaintiff contends that it is uncontroverted that he was impaired by reason of early second stage anthracosilicosis, with moderate emphysema; that he showed that he could not perform his former duties; that he could not obtain light work which he could do; and, that under our decision in Stancavage v. Celebrezze, supra, the district court reached the proper result, there being no basis upon which to remand for further administrative proceedings except for determination of benefits under the Act.

We have only recently had occasion to reiterate the legal principles here pertinent. In Janek v. Celebrezze, 336 F.2d 828, (1964), we said at page 833:

"This court has held, however, that the test for disability consists of two parts: (1) a determination of the extent of the applicant\'s physical or mental impairment, and (2) a determination whether that impairment results in an inability to engage in any substantial gainful activity. Stancavage v. Celebrezze, 323 F.2d 373 (3 Cir. 1963); Farley v. Celebrezze, 315 F.2d 704 (3 Cir. 1963); Hodgson v. Celebrezze, 312 F.2d 260 (3 Cir. 1963); Klimaszewski v. Flemming, 176 F.Supp. 927, 931 (E.D.Pa.1959). Thus in the case of an employee who can no longer perform the work he used to do but is not totally disabled the question is what can he do by way of any gainful employment. Kerner v. Flemming, 283 F.2d 916 (2 Cir. 1960). The words `any substantial gainful activity\' must be read in the light of what is reasonably possible and not what is conceivable. Hodgson v. Celebrezze, supra. Mere theoretical ability to engage in substantial gainful activity is not enough if no reasonable opportunity for this is available. Roberson v. Ribicoff, 299 F.2d 761, 763 (6 Cir. 1962).

"In determining what kind of substantial gainful activity Janek can engage in, not only his physical disability must be considered but also such other meaningful factors as his age, education, training and work experience must be taken into account. Hodgson v. Celebrezze, supra. See also 20 C.F.R. § 404.1502 (b), as amended (1962). Thus the determination must be made from all of the facts of the case."

The plaintiff was 45 years of age at the time of filing his application for benefits. He had a ninth grade education. For approximately 25 years prior to July, 1959, he had worked in and about the anthracite collieries, the last 2½ years as a machinist, and the preceding 16 or 17 years as a welder. In July, 1959, he suffered what appeared to be a heart attack, as a result of which he was hospitalized, and rendered inactive for about seven months. Thereafter, with his physician's permission, he sought light work. He testified that he was refused light work at the colliery, although he thought there was light work he might do. He testified that he sought light work at a toy factory, but was refused because the man who did the hiring said, "we'd take a chance on giving you a job". He testified he sought work from the manager of a food chain store, "even putting cans on a shelf", but the manager, in turning him down said, "who's going to carry the cases for you, there's hard work to that"?

The plaintiff also testified that he had...