'Prostration -- inability to proceed with any task to its completion. Constant restlessness and apparent ever-present fear i.e. of an acute attack of pain. Thinking is confused and speech jerky -- often trys to say one thing but comes up with something else.'
The diagnosis was 'Arachnoiditis of cervical Spinal Cord plus a post concussional syndrome.' The doctor indicated that claimant was unimproved and commented that 'the nature of the patient's trouble tends to be progressive.'
No argument is needed to demonstrate that this report does not support the hearing examiner's conclusions, despite the remark at the end of the report by the doctor that 'Laboratory and Clinical tests are all negative. X-ray shows only moderate arthritis.'
The final item of medical evidence is Exhibit 13, a report by Samuel C. Gomory, M.D. While this report is undated, it was apparently made after July, 1958, since it refers in the past tense to an event which occurred in July, 1958.
We find no basis in this report for the conclusion that the claimant is not permanently or indefinitely disabled from pursuing substantial gainful activity. Dr. Gomory's diagnosis is: 'Post concussional syndrome, manifested by mild depression, anxiety, severe pain, dependency on narcotic and cancerophobia.' The doctor concludes:
'Patient is ambitious and he is hopeful and sincere. Compazine and Marsilid medication might bring him out of his depressed anxiety state and might counteract the desire for narcotics. New x-ray examination of the vertebrae might convince him that he has no metastasis of his old cancer.'
If we accept Dr. Gomory's prognosis, we must conclude that claimant might be cured of some of his ills -- which is not to say that he will.
We see no point to reiterating the testimony given at the hearing by claimant and his wife. We are satisfied that there is nothing therein which alone, or in combination with one or more of the items of medical evidence, constitutes substantial evidence of claimant's ability to engage in any substantial gainful activity.
In summary, we believe that since the expert opinion of Dr. Ingram as to claimant's disability was not controverted by substantial evidence to the contrary, the hearing examiner's adverse decision on the ultimate fact should be set aside.
As was said by the Court in Teeter v. Flemming, 7 Cir., 1959, 270 F.2d 871, 874:
'The expert opinion of Dr. Morris as to disability and inability to engage in any substantial, gainful employment, was admissible evidence for consideration by the referee and not, in itself, binding on him. But as it was not controverted by substantial evidence to the contrary, the referee's adverse decision on the ultimate fact was properly set aside. Hill v. Fleming, D.C.Pa.1958, 169 F.Supp. 240, 245.'
In Braun v. Ribicoff, 3 Cir., 1961, 292 F.2d 354, 357, the Court stated:
'In Boyd v. Folsom, 3 Cir., 1958, 257 F.2d 778, we defined the scope of the review to be applied to the Secretary's decisions by United States district courts. We said, id., at page 781, that ultimate facts must be reached by a process of legal reasoning based on the legal significance to be afforded primary evidentiary facts and that therefore ultimate findings of fact by the Secretary were reviewable, citing Goldman v. Folsom, 3 Cir., 1957, 246 F.2d 776, 779. We also stated that, 'Our judicial duty * * * is to satisfy ourselves that the agency determination has warrant in the record, viewing that record as a whole, and a reasonable basis in law. Universal Camera Corp. v. National Labor Relations Board, 1951, 340 U.S. 474, 490, 71 S. Ct. 456, 95 L. Ed. 456."
We find in the case at bar, as the Court did in the Braun case, supra, that '* * * the primary evidentiary facts do not support the ultimate finding of fact that (Wilson) can engage in substantial gainful employment.'
An appropriate order will be entered denying defendant's motion for summary judgment, reversing the decision of the Secretary, and remanding the case with directions to grant the claimant a period of disability and disability benefits as of January 1, 1956, the date established by the previously-cited report of Dr. Ingram as marking the onset of claimant's total and permanent disability.