Mankiewicz v. Celebrezze
| Citation | 256 F. Supp. 351 |
| Decision Date | 22 July 1966 |
| Docket Number | Civ. A. No. 38336. |
| Parties | Alfred A. MANKIEWICZ v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, United States of America. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
W. J. Krencewicz, Shenandoah, Pa., for plaintiff.
Drew J. T. O'Keefe, U. S. Atty., James C. Lightfoot, Asst. U. S. Atty., Philadelphia, Pa., for defendant.
Plaintiff seeks review of the final decision of the Secretary of Health, Education and Welfare holding that he is not disabled and entitled to disability insurance under the Social Security Act, 42 U. S.C. §§ 416(i) and 423.
Plaintiff was born in 1916, received an 11th grade education, and resides in Shenandoah Heights, West Mahanoy Township, Schuylkill County, Pennsylvania. Prior to Army service during World War II, plaintiff had worked at various occupations, but generally he has always been a "bootleg" coal miner. By this is meant that plaintiff has worked in coal mines without being a fully qualified miner. In recent years, he worked as a conductor and most recently, as a motorman on an electric train in a mine colliery. Plaintiff last worked around December 1959, at which time the mine in which he was employed shut down.
On January 29, 1964, plaintiff filed an application for disability insurance benefits. He alleged that he became unable to engage in any substantial gainful employment in February 1960 because of miner's asthma, poor vision in the right eye, a crushed index finger of the right hand, and an amputated middle finger of the right hand. His application was denied by the Social Security Administration initially, upon reconsideration, and after a hearing held at Pottsville, Pennsylvania, on March 2, 1965. Upon refusal of the Appeals Council to review, the decision of the Department became final and ripe for this judicial action for review under 42 U.S.C. § 405(g). The case is presently before the Court on cross motions for summary judgment.
The question before the Social Security Administration was whether the plaintiff was disabled or unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S. C. § 416(i). The scope of this Court's review of the decision of the Department is limited to determining whether such decision was "supported by substantial evidence." 42 U.S.C. § 405(g).
The Third Circuit Court of Appeals has enunciated a dual test for determining disability. The hearing examiner must determine:
Bujnovsky v. Celebrezze, 343 F.2d 868, 870 (3 Cir. 1965), Hodgson v. Celebrezze, 312 F.2d 260, 263 (3 Cir. 1963).
The Court has decided that there was substantial evidence on the record to support the hearing examiner's decision with regard to the extent of plaintiff's physical impairment. The examiner held that plaintiff "has a respiratory impairment that would make strenuous physical work beyond his capacity but not work of a lighter nature." (Transcript, p. 12). In affirming the above holding, the Court realizes that there was evidence in the record that plaintiff was suffering from "blackouts", and also was partially disabled because of an injury to one finger and the amputation of another.
Nevertheless, this case must be remanded to the Secretary to determine properly whether the plaintiff is able to engage "in any substantial gainful activity." Bujnovsky v. Celebrezze, supra, Hodgson v. Celebrezze, supra. Once the claimant has proven the existence of a permanent, although not totally disabling handicap, he "has adduced sufficient evidence to put the burden upon the Secretary to show that a reasonable employment opportunity is available to him." Bujnovsky, supra, 343 F.2d at 871. See also Baker v. Gardner, Third Circuit Court of Appeals, 362 F.2d 864, filed July 5, 1966; Stancavage v. Celebrezze, 323 F.2d 373 (3 Cir. 1963) and Bugdnewicz v. Celebrezze, 249 F.Supp. 139, 141-142 (E.D.Pa.1966).
It has been repeatedly stated in this Circuit that the Secretary, in order to meet this burden, must show a reasonable possibility, as opposed to a theoretical existence of employment. See Hodgson v. Celebrezze, 357 F.2d 750, 755 (3 Cir. 1966), Janek v. Celebrezze, 336 F.2d 828, 833 (3 Cir. 1964) and Klimaszewski v. Flemming, 176 F.Supp. 927, 932 (E.D.Pa. 1959).
The record in this case establishes that the Secretary failed to meet this test. The examiner asked Doctor Jacob Tuckman, the vocational specialist, what he thought were the possibilities of a man with pla...
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