Modla v. Gardner, Civ. No. 8901.

• Decision Date: 11 March 1966
• Docket Number: Civ. No. 8901.
• Citation: 251 F. Supp. 617
• Parties: Andrew MODLA, Plaintiff, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

251 F. Supp. 617

Andrew MODLA, Plaintiff, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant.

Civ. No. 8901.

United States District Court M. D. Pennsylvania.

March 11, 1966.

COPYRIGHT MATERIAL OMITTED

Bernard J. Kotulak, Anthony J. Lupas, Jr., Wilkes-Barre, Pa., for plaintiff.

Bernard J. Brown, U. S. Atty., Scranton, Pa., for defendant.

NEALON, District Judge.

This is a motion by the Secretary of Health, Education and Welfare for summary judgment in an action brought by plaintiff, Andrew Modla, under Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to review a final decision of the Secretary that plaintiff is not entitled to disability insurance benefits and establishment of a period of disability by reason of a disability as defined in 42 U.S.C. §§ 416(i) and 423.

The pleadings reveal that plaintiff filed an application for disability insurance benefits on January 18, 1963, which was denied by the Social Security Administration and the claimant filed a timely request for a hearing on May 13, 1964. The hearing was held on September 29, 1964, before a Hearing Examiner who, in a decision dated October 9, 1964, also denied plaintiff's claim for disability benefits. Plaintiff filed a request for review, but this was denied by the Appeals Council and this denial became the final Administrative decision on the claim and constitutes the decision of the Secretary. Plaintiff then filed his complaint in this Court, seeking a reversal of the decision, and the defendant has moved for summary judgment. This motion is now before the Court for disposition.

Plaintiff was born November 14, 1906, and began working in the anthracite mines at the age of thirteen and remained so employed until 1941, when he was advised by his physician to discontinue working around the mines, presumably because of his lung condition. On May 28, 1942, he was rejected for military service, having been found to be physically disqualified by reason of advanced anthracosis. From 1942 until 1950 he worked in the Luzerne County Court House in Wilkes-Barre as a janitor, and in 1953 he was employed for part of the year as a Court House mailman, sorting and distributing mail. He then lost his job because of a change in the political administration. The plaintiff did not work again until May of 1960, when he went to work in a shirt factory, placing shirts in a bin, until he was laid off. From August 21 to August 27, plaintiff worked as a watchman to get an additional quarter of coverage under the Social Security Act. Plaintiff's education is limited to the completion of the seventh grade of elementary school. He contends that he is unable to work due to anthracosilicosis and the effects thereof, and that his physical condition has prevented him from performing any substantial gainful activity.

The Statute requires that the claimant prove he has a disability, i. e., that he is unable 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 and indefinite duration. 42 U.S.C.A. § 423(c) (2). The Act is remedial and is to be construed liberally. Celebrezze v. Bolas, 316 F.2d 498 (8th Cir. 1963). The Secretary's findings of fact and the reasonable inferences drawn therefrom are conclusive if they are supported by substantial evidence. Ferenz v. Folsom, 237 F.2d 46 (3d Cir. 1956); 42 U.S.C. § 405 (g). Substantial evidence has been defined as that which is more than a mere scintilla. It is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Substantial evidence must be enough to justify, if the trial were to a jury, a refusal to direct a verdict, when the conclusion sought to be drawn from it is one of fact for the jury. The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. Consolidated Edison Co. of New York v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938); National Labor Relations Board v. Columbian Enameling & Stamping Company, 306 U.S. 292, 59 S.Ct. 501, 83 L.Ed. 660 (1939); Universal Camera Corporation v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The determination of substantial evidence is to be made on a case-to-case basis. Celebrezze v. Wifstad, 314 F.2d 208 (8th Cir. 1963).

A two-part test has been established to determine the existence of the required disability: (1) what is the extent, if any, of the claimant's physical or mental impairment, and (2) does the impairment result in his inability to engage in any substantial gainful activity? Klimaszewski v. Flemming, 176 F.Supp. 927 (E.D.Pa.1959).

Plaintiff's principal complaint is anthracosilicosis, a progressive disease. At the hearing¹ he stated that he can only walk 150 to 200 feet on the level without having to rest (N.T. p. 61); that he's consistently short of breath; that his heart starts to pound (N.T. p. 62); that he gets leg cramps and can't sleep for more than two and one-half to three hours at a time (N.T. p. 67), and that it takes up to one hour for him to clear the mucous from his lungs in the morning (N.T. p. 60).

The following medical reports were received into evidence:

(a) Exhibit B-50, the report of Dr. S. Wartella, a Radiologist at the Wilkes-Barre General Hospital, stated that claimant suffered third stage anthracosilicosis with pulmonary fibrosis and emphysema.

(b) Dr. Robert M. Kerr, a specialist in Internal Medicine, diagnosed plaintiff's condition as anthracosilicosis, stage three, with mild to moderate pulmonary emphysema. He stated: "This 56 year old ex-miner is partially disabled by his pulmonary emphysema and also by his obesity * * * he could probably perform some type of light work with no real difficulty." (N.T. p. 224) He found claimant's vital capacity was 85% of normal and that his maximum breathing capacity was 78% of normal.

(c) Dr. Paul C. McAndrew, a specialist in pulmonary diseases, found that the plaintiff had a vital capacity of 76% of normal and a maximum breathing capacity of 29% of normal. In his conclusion he stated:

"It is apparent that this patient has impaired pulmonary function with a cardiovascular component * * * these findings are indicative of anthracosilicosis with superimposed emphysema, accompanied by essential hypertension. Physical activities are obviously restricted because of the age and the above recorded signs. Mental activities are curtailed by a third grade education. Improvement can hardly be expected from either." (N.T. pp. 231, 232)

(d) Dr. E. C. Beckley, claimant's personal physician, concluded that plaintiff's physical condition results in shortness of breath on exertion and that he has third stage anthracosilicosis. Dr. Beckley stated that exertion results in dyspnea and that emphysema is present at the base of both lungs. It is his opinion that the claimant is totally disabled.

(e) Dr. Thaddeus A. Salaczynski, a general practitioner, provided a diagnosis of advanced anthracosilicosis with emphysema. He specified that moderate exertion results in dyspnea and that there is moderate emphysema in the bases of both of claimant's lungs. He found that claimant has a vital capacity of 50.2% of normal and a maximum breathing capacity of 58% of normal. Dr. Salacynski concluded:

"This man is adjudged totally disabled and unfit for any future work." (N.T. p. 236)

(f) Dr. Edward P. Swartz, a specialist in Internal Medicine, reported that "there is no dyspnea nor cyanosis. This man has an adequate pulmonary reserve." (N.T. p. 228) For some unknown reason, Dr. Swartz made no finding as to the existence of anthracosilicosis and the stage it had reached.

As we have come to expect in these cases involving anthracosilicosis victims, the Examiner accepted the testimony downgrading and minimizing plaintiff's complaints and rejected the evidence which indicated that plaintiff had a severe obstructive pulmonary insufficiency. According to the Examiner, Dr. Salaczynski's findings were "* * * overcome to the satisfaction of the Hearing Examiner by the laboratory findings of Doctors Kerr, Berley, Swartz and McAndrew." The findings of Dr. Berley and Dr. Kerr of "early moderately severe obstructive pulmonary insufficiency" were accepted by the Examiner, who also concluded that "Dr. McAndrew's pulmonary function studies with the exception of the maximum breathing capacity are sufficiently normal to corroborate the findings of the other impartial consultants." However, this one inconsistency was eradicated, as follows: "(T)he Hearing Examiner can only conclude that this markedly deficient maximum breathing capacity of 29% was a controlled reaction to the test as administered by Dr. McAndrew and represents a determined effort by the claimant to establish his disability." Finally, the Examiner concludes, "(A)lthough the record does indicate that the claimant's physical capacity is somewhat restricted, the reports of physical examinations by the various physicians including the exercise tolerance test administered by Dr. McAndrew indicate that the claimant has a substantial physical reserve which is adaptable in combination with his age, experience, education and general ability to other types of substantial gainful activity." The Examiner's determination as to the extent of the impairment suffered by claimant survives the test of substantial evidence, although by a slim margin. Recognizing that Congress has placed the fact-finding power in the Secretary, and so limiting my authority, I conclude that there was substantial evidence to support the findings of the Secretary as to the extent of claimant's impairment. Nevertheless, it is clear that plaintiff has a serious physical impairment of anthracosilicosis, third stage,² which, at the very least, somewhat restricts his physical capacity.

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