262 F. Supp. 288 | S.D.N.Y. | 1966
Motion by the defendant pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, for an order granting summary judgment, is granted. The cross motion by the plaintiff for the same relief, is denied. The court affirms the decision of the Secretary.
The plaintiff, Cornelius P. Harrington, instituted this action under 42 U.S.C. § 405(g)
The plaintiff was born on June 29, 1906. He graduated from elementary school and attended high school for two years. After approximately nine years of employment with the New York Central Railroad, first as a plumber’s helper and later as a signal man, the plaintiff, in 1931, joined the New York City Fire Department. On January 2, 1963, he suffered a heart attack and was hospitalized until January 31, 1963. Immediately prior to plaintiff’s misfortune, he was a battalion chief in charge of 160 men, at a salary of $13,500 per annum. On April 22, 1963, the plaintiff returned to work, but in a “limited service” capacity. His function consisted of supervising the drafting of certain departmental regulations. After a month, the plaintiff voluntarily left the job claiming that he was incapable of riding the subway during rush hours without experiencing chest pains and shortness of breath. On August 30, 1963, the plaintiff was permanently retired for a service incurred disability, with a pension of $12,000 per annum.
The claimant filed an application for disability insurance benefits on June 13, 1963. The application was denied and plaintiff thereupon requested a hearing, which was conducted on March 11 and May 6, 1964. By decision filed on June 30, 1964, the examiner held that the claimant was not entitled to disability benefits. On September 3, 1964 the Appeals Council of the Social Security Administration refused to review the examiner’s decision. The claimant having exhausted his administrative remedies
A subsequent hearing on this issue followed on March 28 and April 26, 1966. The recommended decision of the hearing examiner was again adverse to the claim of the plaintiff and this decision was affirmed on June 30, 1966 by the Appeals Council of the Social Security Administration. The plaintiff having exhausted his administrative remedies
The law is clear that the Secretary’s findings of fact, if supported by substantial evidence, are binding on a
The test of disability within the meaning of the statute has been held to involve two issues: “ * * * what can applicant do, and what employment opportunities are there for a man who can do only what applicant can do ?” Kerner v. Flemming, 283 F.2d 916, 921 (2d Cir. 1960). Since the first of these issues has already been determined
Further, it is clear that the claimant has the burden of proving his right to disability benefits. Kerner v. Flemming, supra.
The first witness at the hearing on this issue was Dr. Messeloff who had examined the plaintiff and made a report. He testified that the claimant has a II B heart
The next witness was Dr. Fishman, an expert in vocational rehabilitation, whoi referring to the Dictionary of Occupational Titles
The plaintiff called only two witnesses on his behalf. Mr. Rudick, an employment interviewer with the New York State Employment Service, testified from records that the claimant had come to the office to apply for a job and had not been sent out on an interview. He further testified that he did not know why the claimant had not been sent out to a job.
Miss Brill, the operator of an employment agency was the plaintiff’s second witness. She testified that she would be unable to find a position for a man with the plaintiff’s qualifications because her clients require a high school education and a rigid physical examination.
Based upon all of the testimony in the transcript and the credible evidence presented to it, this court finds that the decision of the Secretary of Health, Education and Welfare is supported by substantial evidence and is therefore binding on this court. The hardship here seems to lie more in the claimant’s inability to find employment, than in his incapacity to work. Despite its natural sympathy for the claimant’s plight, the court cannot order unemployment compensation under the guise of disability insurance.
This court affirms the findings and determination of the Secretary of Health, Education and Welfare in this case.
So ordered.
. The section provides in pertinent part: “Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain review of such decision by a civil action * * *.
. The section provides in pertinent part: “ * * * the term disability means * * * 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 and indefinite duration.”
. When the Appeals Council of the Social Security Administration refuses to review the decision of the hearing examiner, the hearing examiner’s findings become the Secretary’s final decision and is the proper subject to be reviewed by the Federal District Court. Odom v. Celebrezze, 230 F.Supp. 732 (D.C.S.C. 1964).
. The decision of the court was based on the tost of disability laid down in Kerner v. Flemming, 2 Cir., 283 F.2d 916, 921.
. A decision of the Appeals Council of the Social Security Administration affirming a hearing examiner’s decision that the applicant was not entitled to benefits was a “final decision of the Secretary” for the purposes of the section authorizing judicial review of such final decisions. Livingstone v. Folsom, 234 F.2d 75 (3rd Cir. 1956).
. 42 U.S.C. § 405(g); Hobby v. Hodges, 215 F.2d 754 (10th Cir. 1954); Walker v. Altmeyer, 137 F.2d 531 (2d Cir. 1943).
. Spier v. Flemming, 186 F.Supp. 614 (W.D.N.Y.1960); Julian v. Folsom, 160 F.Supp. 747 (S.D.N.Y.1958).
. This court in its opinion dated August 3, 1965 found the decision of the Secretary, that the claimant could do clerical and other sedentary work, to be supported by substantial evidence.
. See also: Thomas v. Celebrezze, 331 F. 2d 541 (4th Cir. 1964); Nettles v. Celebrezze, 228 F.Supp. 17 (E.D.S.C.1964).
. See also: Ber v. Celebrezze, 332 F.2d 293 (2d Cir. 1964).
. See TR. 502 — The Classification of Patients with Dieases of the Heart.
. HR 383-385
. TR 383-384
. TR 397
. Administrative notice and testimony from such official compilations has been held to be substantial evidence supporting the determination of the Secretary. Rinaldi v. Ribicoff, 305 F.2d 548 (2d: Cir. 1962).
. TR 431-435
. TR 438
. TR 442 and TR 444
. TR 453-455
. TR 456-458