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December 18, 1957

Harold JACOBSON, Plaintiff,
Marion B. FOLSOM, Secretary of Health, Education and Welfare, Defendant

The opinion of the court was delivered by: KAUFMAN

This action was instituted by the plaintiff pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C.A. § 405(g) *fn1" to review a decision of the Secretary of Health Education and Welfare, denying the plaintiff disability benefits to which he is allegedly entitled.

By this motion plaintiff seeks summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., on grounds that there are no genuine issues as to any material facts and that he is entitled to judgment as a matter of law. Defendant has cross-moved for the same relief. No affidavits are annexed to the moving papers since the issue to be decided can be adjudicated on the basis of the pleadings and the certified copy of the transcript of the record of the proceedings before the Social Security Administrator. *fn2"

In his complaint plaintiff alleges that on October 27, 1955, he filed an application with the Bureau of Old-Age and Survivors Insurance of the Social Security Administration for the purpose of establishing a period of disability under Section 216(i) of the Act as amended, 42 U.S.C.A. 416(i). This section was enacted to protect a wage earner's old age and survivors insurance rights against impairment of his earning capacity through total disability before reaching the retirement age.

 Under the provisions of the Social Security Act as it existed prior to 1954 the amount of the monthly Social Security benefits payable to the wage earner or his beneficiary upon retirement or death was computed by taking the total earnings of the wage earner from a specified starting date to age 65, or death, and dividing this figure by the total number of months elapsed during this period. If the wage earner had been disabled during any of this period he would presumably not have received any wages and the inclusion of such a period of disability in the computation of his average monthly earning would dilute the benefits he or his beneficiary would be entitled to receive under the Act. To meet such an eventuality the Act was amended in 1954 to provide that upon a showing of total disability for a period of six months or more during which the wage earner was unable to engage in any substantial gainful occupation the periods during which the disability existed shall be excluded from his earning record thereby creating a so-called 'disability freeze'. Title 42 U.S.C.A. 415(b)(1)(A), 416(i).

 Plaintiff contends that while working as a full-time insurance salesman for the Metropolitan Life Insurance Company in New York City, he was afflicted on July 28, 1950 with what was subsequently diagnosed as coronary insufficiency and gall bladder disease. It is this condition which allegedly precludes plaintiff from engaging in any activity requiring physical exertion. As a result of this disability plaintiff was retired by Metropolitan and became eligible to receive monthly total and permanent disability benefits under the Company's Employees Insurance and Retirement Program. At the same time, apart from and in addition to its Employee Plan, he was granted certain disability benefits under the provisions of an insurance policy which he had with Metropolitan. Since his impairment plaintiff admits engaging in a rather limited selling of insurance under a special license issued by Metropolitan to people who like plaintiff are totally disabled. However, the restricted efforts of plaintiff under this license were not very rewarding and over a period of five years he allegedly did not earn more than a total of $ 1,500.

 It was under these circumstances that plaintiff on October 27, 1955 applied to the Social Security Administration to establish a period of disability and freeze his Social Security earning record. On March 26, 1956, the plaintiff was notified by the District Office of the Social Security Administration that his application had been denied. Upon formal request by plaintiff, a hearing was held on his claim without benefit of counsel before Referee Robert P. Bingham. This hearing resulted in an adverse determination against plaintiff on August 31, 1956 upon the finding of Referee Bingham that plaintiff was able to engage in some substantial activity.

 On September 4, 1956, plaintiff requested a review by the Appeals Council of the referee's decision which was denied. On November 2, 1956 plaintiff's counsel requested the Appeals Council to reconsider its decision. Upon denial of this request the instant action was commenced on December 3, 1956.

 Under Section 205(g) of the Social Security Act 42 U.S.C.A. 405(g) the findings of the Secretary *fn3" as to any facts if supported by substantial evidence are made conclusive on the courts and a hearing de novo may not be had no the evidence. See Ferenz v. Folsom, 3 Cir., 1956, 237 F.2d 46, certiorari denied 1956, 352 U.S. 1006, 77 S. Ct. 569, 1 L. Ed. 2d 551; Hobby v. Hodges, 10 Cir., 1954, 215 F.2d 754; Walker v. Altmeyer, 2 Cir., 1943, 137 F.2d 531; N.L.R.B. v. Link-Belt Co., 1941, 311 U.S. 584, 597, 61 S. Ct. 358, 85 L. Ed. 368. But it was never intended that the courts should abdicate their 'conventional judicial function' to review. Universal Camera Corp. v. N.L.R.B., 1951, 340 U.S. 474, 490, 71 S. Ct. 456, 95 L. Ed. 456. Where the administrative decision is based upon conclusions not reasonably reached upon due consideration of all the relevant issues presented or where the parties have not been given a fair opportunity to be heard upon the facts and applicable law the court may properly correct the errors below. Goldman v. Folsom, 3 Cir., 1957, 246 F.2d 776; Wilson v. Folsom, D.C.D.N.D.1957, 151 F.Supp. 195.

 In this case the sole issue before the referee was whether since July 28, 1950 or commencing at any time prior to his 65th birthday and continuing to the time he filed application for a disability determination, the claimant was 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. § 416(i) (1). From the record made before the referee it appears that plaintiff testified that his condition was diagnosed as coronary artery disease, that he suffers from shortness of breath, and that he finds climbing and walking around as well as travelling or working in congested areas too much of a strain. The above diagnosis and plaintiff's complaint of shortness of breath and sensations of weakness upon exertion were corroborated by two medical reports which were attached to the record and presumably considered below along with the other evidence. If plaintiff's testimony be accepted as proven fact, for the purposes of this proceeding, I believe he would have established his right to relief under Section 216(i). In a release of the Department of Health, Education and Welfare in June 1957 reported in CCH Unemp. Ins. Reports, Vol. 1-A, Fed. para. 8280 examples are given of some impairments which would ordinarily be considered severe enough to prevent substantial gainful activities, one of which is:

 'Disease of heart, lungs, or blood vessels which have resulted in major loss of heart or lung reserve as evidenced by X-ray, electrocardiogram or other objective findings so that, despite medical treatment, it produces breathlessness, pain or fatigue on slight exertion, such as walking several blocks, using public transportation or doing small chores.'

 In spite of this pronouncement and without any evidence in contradiction of the testimony and medical records of the plaintiff or any attack on his credibility the referee found 'that the claimant's physical impairments have not so seriously affected his over-all ability as to make him continuously unable to do any type of substantial gainful work.' Referring to this part of plaintiff's testimony the referee noted that 'from his appearance and testimony the claimant appears to be a person who presently suffers no shortness of breath, is presentable, and is in full possession of his mental faculties.' Such a lay observation as was made by the referee can only have been based on surmise and speculation and is certainly of insufficient probative value to derogate from plaintiff's testimony supported by medical records.

 It further appears from the record of the hearings and from the referee's subsequent decision that undue weight was placed upon the few sales made by plaintiff under his special license. *fn4" In view of the very limited commercial activity of plaintiff after his affliction, a determination with respect to such activity consistent with a finding of permanent and total disability may very well have been made. An understanding of human nature reveals that a person may attempt such sporadic and limited work not because of his ability to work but because of his unwillingness to live a life of idleness even though he be totally and permanently disabled within the meaning of Section 216(i). See Berry v. United States, 1941, 312 U.S. 450, 455-456, 61 S. Ct. 637, 85 L. Ed. 945.

 A review of the record also leads me to believe that the referee in concluding that plaintiff was capable of engaging in some gainful work may have contemplated that plaintiff seek employment as a clerk. Indeed, the referee inquired of plaintiff whether or not he considered himself capable of clerical work. Plaintiff replied that he was not 'fit' for that type of work, and later that he couldn't stand 'the mental strain of working in an office' or under such close supervision. Even assuming that plaintiff was physically capable of engaging in clerical work it does not necessarily follow that he was able 'to engage in any substantial gainful activity.' Implicit in this criterion is that the gainful work be commensurate with plaintiff's educational attainments, his training and experience. See United States v. Still, 4 Cir., 120 F.2d 876, 880, certiorari denied 1941, 314 U.S. 671, 62 S. Ct. 135, 86 L. Ed. 537; Fuller v. Folsom, D.C.W.D.Ark., 155 F.Supp. 348; Cf. Arico v. Prudential Ins. Co. of America, 2d Dept.1934, 241 App.Div. 826, 271 N.Y.S. 241. For a man engaged in active and high pressure selling all of his adult life a transition at this late stage in life to a 'white collar' job under close supervision might be unrealistic and irreconcilable with his training and experience. Furthermore, his ability to obtain such employment, in view of his selling background, might be doubtful. In any event these are matters that should have been considered by the referee.

 I am fully cognizant that the burden of proving disability under the statute is on the claimant. *fn5" Conceivably, plaintiff's evidence, even if unimpeached and uncontradicted possessed insufficient probative value to meet this burden. Nevertheless, in view of the misplaced emphasis on some of the evidence adduced at the hearing and plaintiff's claim that he has further evidence to introduce in his behalf, I believe it would be wiser and in keeping with a sense of ...

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