Gee v. Celebrezze, 15154.

• Decision Date: 20 January 1966
• Docket Number: No. 15154.,15154.
• Citation: 355 F.2d 849
• Parties: Louis GEE, Plaintiff-Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare of the United States, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

355 F.2d 849 (1966)

Louis GEE, Plaintiff-Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare of the United States, Defendant-Appellee.

No. 15154.

United States Court of Appeals Seventh Circuit.

January 20, 1966.

Harvey L. McCormick, Milwaukee, Wis., for appellant.

James B. Brennan, U. S. Atty., Thomas R. Jones, Franklyn M. Gimbel, Asst. U. S. Attys., Milwaukee, Wis., for appellee.

Before KNOCH, CASTLE and SWYGERT, Circuit Judges.

KNOCH, Circuit Judge.

Plaintiff Louis Gee, seeks to review the decision of the Secretary of Health, Education and Welfare, disallowing plaintiff's claim for a period of disability beginning September 16, 1959, and disability insurance benefits.

If supported by substantial evidence the findings of fact of the Secretary are conclusive. Degner v. Celebrezze, 7 Cir., 1963, 317 F.2d 819, 821.

The record contains an abundance of medical evidence which would support a finding that the plaintiff is not fit to engage in "heavy work." There were some conflicts in the medical evidence, much of which consisted of examinations made in connection with plaintiff's claim rather than for treatment purposes, as to the extent of his various past and present minor or temporarily disabling ailments, but the evidence as a whole clearly supports a finding that plaintiff has not established his "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death" or to be of long-continued duration, as called for in the statute. Title 42, U.S.C.A. § 416(i) (1) (A).

In September, 1959, the plaintiff did suffer a pneumothorax or collapse of his left lung. He was treated for this condition and discharged from the hospital as improved. In June, 1960, a medical examination showed that the lung had returned to normal size and that his chest expansion was normal and equal on both sides. The same physician who made that examination testified that the pneumothorax was unrelated to other alleged respiratory conditions of which the plaintiff complained. Nevertheless the plaintiff left the job which he held in September, 1959, and made no effort to seek any type of employment.

When the plaintiff applied to the Industrial Commission of Wisconsin for benefits based on disability from silicosis, benefits were denied on the ground that he had only a minimal non-disabling case. The decision however, states that other conditions may have been disabling. Plaintiff feels that the Secretary erred in considering this comment as mere dictum. But the sole question before the Wisconsin Commission was the issue...