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391 F.2d 208

Docket No. 288, Docket 31794.

Peterson v. Gardner

Second Circuit Court of Appeals

Submitted Jan. 17, 1968.

Decided March 13, 1968.

Second Circuit Court of Appeals · decided 1968-03-13

2 counsel of record

Applies 42 U.S.C. § 405 (§ 205 of the Social Security Act of 1935) · 42 U.S.C. § 416 (§ 216 of the Social Security Act of 1935)

Relies on Universal Camera Corp. v. National Labor Relations Board · Eastern Air Lines, Inc. v. Northeast Airlines, Inc. · Adams v. Flemming

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1968-03-13

How this case has been cited

Cited by 33 later decisions — most recently January 2001 · most notably Mystic Marinelife Aquarium, Inc. v. Gill (1978), Marcus v. Califano (1979)

3 federal appellate · 2 district · 1 state decisions

14019681970198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1*209Donald L. Cooney, New York City, for appellant.

¶2Thomas A. Kennelly, Acting U. S. Atty., Gerald M. Gallivan in and for the Western District of New York, Buffalo, N. Y., for appellee.

¶3Before LUMBARD, Chief Judge, WATERMAN and FEINBERG, Circuit Judges.

¶4PER CURIAM:

¶5Frederick 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.

¶6Plaintiff’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.

¶7It 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.

¶8The 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.

¶9Aside 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, 492-497 (1950), in light of Social Security Administration Regulations No. 4, section 404.1513(c), the Appeals Council *210could 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).

¶10Affirmed.

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