The opinion of the court was delivered by: WILLSON
This is an action by plaintiff seeking a review of a decision of the Secretary of Health, Education and Welfare, denying her a disability freeze under Section 216(i) of the Social Security Act as amended, 42 U.S.C.A. § 416(i). A copy of the transcript of the proceedings before the Social Security officials has been filed as a part of the record, under Section 205(g) of the Act, 42 U.S.C.A. § 405(g). The court has the power to review defendant's record and enter a judgment 'affirming, modifying, or reversing the decision of the Secretary with or without remanding the cause for a rehearing.'
Section 205(g) of the Social Security Act as amended, 42 U.S.C.A. § 405(g), provides in part:
'* * * The findings of the Secretary as to any fact, if supported by substantial evidence shall be conclusive. * * *'
Under this provision it is the duty of the court to review and determine 'whether on the record as a whole there is substantial evidence to support the Secretary's findings of fact'. Goldman v. Folsom, 3 Cir., 1957, 246 F.2d 776.
Plaintiff contends that the factual evidence favors her and that the findings of the Secretary are not supported by substantial evidence. Under the circumstances, it is necessary to review the record before the Secretary, and with particular reference to the evidence given by the physicians. Plaintiff was born April 12, 1907, and is now 54 years of age. She was employed at the Emery Hotel in Bradfore, Pa. for about 17 years. Her last regular employment between 1952 and 1958 was in the hotel laundry. On March 28, 1958, she suffered a back injury while pushing a heavy laundry cart and she was forced to cease work on April 16, 1958. Since this date she has not been gainfully employed and has received Workman's Compensation benefits.
Plaintiff was first treated by a Dr. Horace D. Simmons, an osteopathic physician and surgeon of Bradford. Three of his medical reports were considered as evidence by the hearing examiner. The first report of January 9, 1959, while indicating lipping of the 6th and 8th vertebrae, makes no comment on her ability to work in any capacity. The second report of July 22, 1959, indicates that the plaintiff is restricted in the use of her arms above the shoulder level and lifting. A third report of June 10, 1960, read as follows:
'Mrs. Crooks is physically unable to participate in any manual work of a gainful nature and is very limited to any house care in her own home.'
In December of 1958 the plaintiff was hospitalized and treated by several physicians employed by the Workmen's Compensation Board. The report of one of them, Dr. Thomas R. Lehan of Erie, Pa., while acknowledging a sprain to the back, observes that 'This patient suffers from a great functional overlay and no improvement is expected.' There is also in the record a report from Dr. M. Rotstein of Bradford dated July 21, 1959, which indicates that the 'patient is unable to work at this time. She will not improve physically.'
There are two reports of Dr. Robert E. White of Bradford that recognize a severe back strain by the plaintiff but do not offer any opinions as to her ability to perform work.
The record also contains a medical report from Harold M. Childress, M.D., an orthopedic surgeon of Jamestown, New York, who examined the plaintiff for the Commonwealth of Pennsylvania, Division of Disability Determination. This report dated May 22, 1959, reviews the history of the plaintiff, diagnoses her injury as 'osteoarthritis at dorsal spine, mildly symptomatic.' The Doctor then offers his opinion 'that she is able to perform work compatible with her age and sex and general development. She would no doubt be improved both mentally and physically if she could return to some form of light work.'
'In my opinion (Irene Crooks) is not able to do gainful work due to arteriosclerotic cardiovascular disease.'
But the plaintiff then testified at her hearing that she had not been treated by Dr. Mountain since her ...