* * * The only type of work this man could do would be as a night watchman or a desk job.'
In a letter dated April 21, 1958, to the claimant's attorneys, Dr. Gordon explained: 'Of course, in order to be qualified to perform 'desk' work this man would have to have the education and training necessary to do this work and if he does not, then obviously he could not do this work.
'As to his ability to work as a night watchman, I should like to clarify this opinion. When I used this job classification, I was thinking in terms of this job as being one in which a minimal amount of standing, walking and moving about was necessary. Should work as a night watchman require more than such minimal movement, Mr. Klimaszewski would be unable to do this work because of the condition of his left leg.'
For purposes of establishing valuation for disability benefits from the Veterans Administration, the claimant was given a physical examination on March 17 and 18, 1953. Dr. Raymond O. Stein, an orthopedist, reported: 'At the present time on examination he can walk without the brace. There is a scar over the medial aspect of the knee which is about 6' in length and well healed. There are several other areas of scarring over the medial aspect of the knee and thickening of the knee. There is definite lateral instability, there is no medial instability. Extension of the knee is 180 degrees flexion to 45 degrees. There does not seem to be any difficulty with the power of the foot. There is good quadraceps power of the knee. He is able to extend the knee completely and hold it in the air. The patient is able to walk without the use of a crutch or cane. He holds leg in hyperextension and foot in plantar flexion.' Also, for purposes of compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., the claimant's injuries were established as causing 50% loss of use of he left leg.
At the hearing, which consisted principally of questions directed to the claimant by the referee, the claimant stated that he had worked as a stevedore for thirty-one years. His education is limited, the claimant testifying that he had completed two years of school.
The claimant testified that he was constantly in pain, also that 'if I walk three or four squares, I have to lay down and rest.' He stated that he could stand for only about fifteen minutes at a time and that he could not sit for any extended period either, because of cramps due to poor circulation.
Whereas Section 205(g) of the Act authorizes review of final decisions of the Secretary, it also limits the scope of review. 'The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * *.' Thus the question for decision is whether there is substantial evidence in the record to support the decision of the Appeals Council that the claimant is not precluded from engaging in any substantial gainful activity. It is the duty of the court to look to the record as a whole. Boyd v. Folsom, 3 Cir., 1958, 257 F.2d 778, at page 781, citing Universal Camera Corp. v. National Labor Relations Board, 1951, 340 U.S. 474, 490, 71 S. Ct. 456, 95 L. Ed. 456.
The test for disability consists principally of two parts: (1) a determination of the extent of the physical or mental impairment and (2) a determination whether that impairment results in an inability to engage in any substantial gainful activity.
As to the extent of the physical impairment, the Appeals Council decision is supported by much evidence and there is really no substantial issue of fact presented as to the nature and extent of the claimant's disability. While it is true that the Appeals Council did not make detailed findings of exactly what were the medical causes of the claimant's disability: e.g., traumatic arthritis or a lowering of the left posterior crest of the plaintiff's pelvis, it did state the condition of the claimant symptomatically. For instance, the Appeals Council said, inter alia, 'Medical examination on May 18, 1956 shows that he had some shortening of the left leg with limitation at the left knee joint and some low back spasm secondary to walking with a shortened leg.' Describing the condition of the claimant in these terms is certainly sufficient for purposes of the Act, viz., for subsequent determination of ability to engage in 'any substantial gainful activity.'
A more serious complaint involves omission of a finding by the Appeals Council of the claimant's alleged difficulty in sitting for any sustained period. However, the claimant's own witness, Dr. Gordon, stated that the claimant could work at a desk job. While this statement was later retracted by the Doctor, it was withdrawn on the basis of the claimant's lack of education. The inference remains, on which the Appeals Council could reasonably rely, that as a physical fact the claimant could sit for a sustained period of time. The claimant's brief emphasizes the testimony of the claimant as to pain. However, as to the back pains, Dr. Gordon stated no more than that there was 'moderate tenderness over the lumbo-sacral area' and 'some spasm of the erector-spinal muscles'. This the Appeals Council found. As to the postoperative pain stressed by the claimant's brief, this is hardly a medical impairment of long-continued and indefinite duration. There was substantial evidence from which the Appeals Council could base its findings as to the extent of the impairment.
The Appeals Council did not find or reject as a fact that the claimant continuously suffered and is suffering pain in his left leg and knee as a residual condition following the injury and operations. However, the claimant has continuously complained of pain and there is no reason to doubt that he did and still does suffer severe discomfort.
The next question is more difficult to answer. The Secretary lays stress on the adjective 'any' which precedes the phrase 'substantial gainful activity' and cites to the court legislative history in support of his position.
However, the definition of disability cannot be considered in vacuo. The definition relates to the individual claimant. 'The act is concerned not with a standard man of ordinary and customary abilities, but with the particular person who may claim its benefits and the effect of the impairment upon that person, with whatever abilities or inabilities he has.' Dunn v. Folsom, D.C.W.D.Ark.1958, 166 F.Supp. 44, 48.
The Appeals Council itself states that 'it seems clear that the claimant because of his stiff leg could not return to his stevedoring work or ordinary manual labor or work involving a great deal of walking or stooping.' It may then be inquired: What other work is available for this claimant? The Appeals Council was not specific here, but merely adjudged that his condition did not preclude the claimant from engaging in any substantial gainful activity. It is obvious that with his limited education, be it two or six years, the claimant is ill-suited for any clerical job. His earning power is limited by his strength and physical fitness. Thirty-one years as a stevedore is hardly qualification for any task which requires skilled manual dexterity or the use of figures or letters. According to the claimant's uncontroverted testimony, he is not able even to stand still for any long period of time. Of course, it may be conceded that with the use of great imagination and even greater ingenuity, conceivably a paying job might be found for Klimaszewski. The court, however, can presently perceive none and the Social Security Administration has not suggested any work for Klimaszewski except as a night watchman, or as stated in the Administration's brief, 'bench work' or some other 'employment in a light manufacturing plant.'
Except for employment as a night watchman, which we think is not reasonably available in view of the claimant's limited ability to get about,
the suggested lines of employment are cast in general terms. There is no demonstration by way of evidence or argument that this claimant is qualified for any specific employment. The claimant's proof that he is not qualified to engage in any substantial gainful activity is not adequately countered by the Administration's suggestions of possible employment.
The word 'any' must be read in the light of what is reasonably possible, not of what is conceivable. The statute must be given a reasonable interpretation. It is a remedial statute and must be construed liberally. It was not the intention of Congress to impose a test so severe as that required by the Secretary and to exact as a condition precedent to the maintenance of a claim the elimination of every possibility of gainful employment.
On the entire record the court concludes the denial of disability benefits to the claimant was erroneous.
The motion of the claimant will be granted and summary judgment will be entered for him. The motion of the Secretary for summary judgment will be denied.
An appropriate order may be submitted.