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Frederick H. Peterson v. John Gardner, Secretary of The Department of Health, Education and Welfare, 391 F.2d 208, 2d Cir. (1968)

Frederick Peterson appealed a decision denying him disability insurance benefits. The district court granted summary judgment for the Secretary of Health, Education, and Welfare. Peterson claimed disability from emphysema but provided no medical evidence of his condition or respiratory capacity as of March 1957, the date he needed to prove disability by. While a hearing examiner found Peterson disabled, the Appeals Council reversed, finding no objective evidence of disability as of 1957. The court affirmed, as the Appeals Council properly required objective medical evidence to support a finding of disability at the relevant time.

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32 views2 pages

Frederick H. Peterson v. John Gardner, Secretary of The Department of Health, Education and Welfare, 391 F.2d 208, 2d Cir. (1968)

Frederick Peterson appealed a decision denying him disability insurance benefits. The district court granted summary judgment for the Secretary of Health, Education, and Welfare. Peterson claimed disability from emphysema but provided no medical evidence of his condition or respiratory capacity as of March 1957, the date he needed to prove disability by. While a hearing examiner found Peterson disabled, the Appeals Council reversed, finding no objective evidence of disability as of 1957. The court affirmed, as the Appeals Council properly required objective medical evidence to support a finding of disability at the relevant time.

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391 F.

2d 208

Frederick H. PETERSON, Appellant,


v.
John GARDNER, Secretary of the Department of Health,
Education and Welfare, Appellee.
No. 286, Docket 31794.

United States Court of Appeals Second Circuit.


Submitted Jan. 17, 1968.
Decided March 13, 1968.

Donald L. Cooney, New York City, for appellant.


Thomas A. Kennelly, Acting U.S. Atty., Gerald M. Gallivan in and for the
Western District of New York, Buffalo, N.Y., for appellee.
Before LUMBARD, Chief Judge, WATERMAN and FEINBERG, Circuit
Judges.
PER CURIAM:

Frederick Peterson appeals from an order granting summary judgment for


defendant in an action to review a decision of the Secretary of Health,
Education and Welfare, brought in the Western District of New York pursuant
to 42 U.S.C. 405(g). We affirm.

Plaintiff's applications for a finding of disability and disability insurance


benefits under the provisions of Sections 216(i) and 223, respectively, of the
Social Security Act, 42 U.S.C. 416(i), 423, filed on June 15, 1962 and January
21, 1964 were both denied. After a hearing, the Hearing Examiner, on February
25, 1966, found that Peterson had been disabled from June 10, 1950 to the date
of decision, and awarded the benefits for which he had applied. On its own
motion, the Appeals Council reviewed and reversed the decision of the Hearing
Examiner, finding that Peterson was not disabled. Plaintiff then brought this
action to review the Appeals Council's decision.

It is conceded that in order to qualify for disability insurance benefits plaintiff

It is conceded that in order to qualify for disability insurance benefits plaintiff


must establish that he was under a disability beginning on or before March 31,
1957. The sole question on appeal is whether or not he was disabled on that
date.

The only evidence supporting plaintiff's claim of disability is his own


testimony. While he claims his disability arose from emphysema, this condition
was not diagnosed during periods of hospitalization in 1950, 1951 and 1952,
and he did not seek medical care again until 1960. The Secretary is not bound to
accept plaintiff's self-serving testimony that he was unable to work in March
1957. Palmer v. Celebrezze, 334 F.2d 306 (3d Cir. 1964). To support his
testimony Peterson submitted a doctor's report that his emphysema is
progressive and that its onset was prior to 1950. However, his doctor conceded
that he could only guess at the degree of plaintiff's disability in 1957, since at
that time plaintiff was not under his care.

Aside from Peterson's own testimony, the only support in the record for his
claim is the decision of the hearing examiner. While the examiner's finding has
some probative force, see Universal Camera Corp v. NLRB, 340 U.S. 474, 492497 (1950), in light of Social Security Administration Regulations No. 4,
section 404.1513(c), the Appeals Council could properly refuse to find a
disability in the absence of any objective medical evidence of plaintiff's
respiratory capacity at the time of the claimed disability. See Kerner v.
Celebrezze, 340 F.2d 736, 740 (2d Cir. 1965); cert. denied, 382 U.S. 861
(1965); Adams v. Flemming, 276 F.2d 901 (2d Cir. 1960).

Affirmed.

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