Massey v. Celebrezze

• Citation: 241 F. Supp. 59
• Decision Date: 18 October 1963
• Docket Number: No. 671.,671.
• Parties: Carl MASSEY, Plaintiff, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

241 F. Supp. 59

Carl MASSEY, Plaintiff, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Defendant.

No. 671.

United States District Court E. D. Kentucky, Pikeville Division.

October 18, 1963.

Dan Jack Combs, Pikeville, Ky., for plaintiff.

B. T. Moynahan, Jr., U. S. Atty., A. L. Brooks, Asst. U. S. Atty., Lexington, Ky., for defendant.

SWINFORD, Chief Judge.

This is an action under 42 U.S.C.A. § 405(g) seeking review of a decision by the Appeals Council of the Department of Health, Education and Welfare denying the plaintiff disability benefits under the Social Security Act. This action was filed on August 7, 1961. On April 23, 1962 an agreed order was entered remanding the case to the Appeals Council for additional evidence on the subject of employment opportunities available to the claimant. These additional findings have now been made and the Court now has jurisdiction to determine whether there is substantial evidence to support the findings. 42 U.S.C.A. § 405(g).

The claimant is a former coal miner. His specific jobs included operating a coal loader, drilling and blasting. He was 54 years old at the time of his oral hearing and has a seventh-grade education. He last held a regular job in December, 1959 when his mine was closed down. He has since worked sporadically at odd jobs connected with coal mining. The plaintiff's principal complaint concerns a respiratory condition traceable to rock dust poisoning. He lost an eye in his childhood but vision in the other eye is correctable to normal.

The medical evidence is in general agreement that the plaintiff cannot return to his former employment in the coal mines. The record contains the depositions of three physicians taken in connection with the plaintiff's claim for workmen's compensation. Dr. W. C. Hambley of Pikeville stated that while plaintiff showed no unusual symptoms on physical examination, his x-ray picture revealed generalized pulmonary fibrosis consistent with second stage silicosis. He said that plaintiff can not do adequate work in the mines. He further indicated that plaintiff could not be depended upon for manual labor outside the mines. Dr. S. G. Davidson of Bluefield, West Virginia testified that he had examined the plaintiff's chest x-ray and found bilateral, nodular fibrosis scattered throughout each side of the chest with some enlargement of the hilar regions. He expressed the opinion that plaintiff had second stage silicosis and explained that the second stage of this disease is characterized by reduced ability to do work. Dr. Davidson did state, however, that while he would not approve the plaintiff as a new employee in the mines, he would acquiesce in his retention as an old employee provided that x-rays and pulmonary function tests were performed on him at regular intervals. Dr. Henry F. Warden, Jr., of Bluefield examined plaintiff along with Dr. Davidson and concurs in his medical determinations. He stated, however, that he would not recommend claimant for work inside the mines and that such outside work as plaintiff could perform would have to involve only light exertions.

While much of this testimony is in the nature of conclusions on the ultimate issue, such evidence is pertinent to describe the severity of the particular impairments found by the physicians. Hall v. Celebrezze, 6th Cir., 314 F.2d 686 (1963).

The administrative decision does not include a finding that the plaintiff could go back to work in the mines and it is not argued by counsel for the defendant that the...