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December 5, 1962

Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare

The opinion of the court was delivered by: ROSENBERG

The plaintiff made application for the establishment of a period of disability and for disability insurance benefits pursuant to Section 216(i) of the Act, 42 U.S.C.A. 416(i), and monthly disability insurance benefits under Section 223 of the Act, 42 U.S.C.A. 423, as amended.

The Bureau of Old Age and Survivors Insurance of the Social Security Administration disallowed the application and a request for a hearing was filed and granted. After a hearing before the Hearing Examiner, the claim for disability by the plaintiff was rejected, and upon review by the Appeals Council on October 17, 1961, with negative results, the Hearing Examiner's decision became the final decision of the Secretary of Health, Education and Welfare. The appeal to this Court followed.

 The plaintiff complained of his inability to work as of July 26, 1957, at the age of 37 years, because of severe pains and headaches caused by a back and neck injury sustained by him on that date. He received Pennsylvania Workman's Compensation benefits on a 100% Disability basis from the date of his injury to April 4, 1959, when it was reduced, after a finding by the Workman's Compensation Board that his disability amounted to 75% Loss of earning power.

 The plaintiff, according to his own testimony before the Hearing Examiner, attempted to return and perform construction work on two occasions. On the first occasion, he was able to work only 45 minutes, and on the second occasion, commencing June, 1960, he was able to work only 20 days in a three month period.

 In support of the plaintiff's claim, the Hearing Examiner received into evidence written medical reports of: (1) Dr. James G. Good, a chiropractor who indicated that the plaintiff was unable to work; (2) Dr. D. H. Bee, a general practitioner who concluded that the plaintiff could do no manual work; and (3) Dr. J. J. Silenskey, an orthopedic surgeon. The report of Dr. Silenskey is more complete. He indicated that the plaintiff was 'thrown by a bulldozer' and had suffered 'an injury to his neck on July 26, 1957 * * * he had had constant pain in his neck with pain radiating into both hands and arms, the right being affected more. The pain also radiates into the dorsal spine'. Dr. Silenskey also reports that this patient has a limitation of motion in the cervical spine with pain radiating 'into the right and left hand on motion of the neck. The strength in the right and left hand is weak, the right is affected more. There is also anesthesis present over the fourth and fifth fingers of the right hand'. This doctor reports 'X-rays of the cervical spine revealed that there is muscle spasm because of loss of the normal anterior curve although there is no evidence of a fracture or bone destruction'. He then gave it as his professional opinion that the patient is '100% Disabled on the basis of the neck injury'. A written report from the Indiana Hospital shows he was hospitalized from August 14th to August 22nd, 1957, and from November 4th to November 13th, 1957.

 This is some of the background information or history concerning the plaintiff. The plaintiff is now approximately 42 years of age. He appears to be a physically fit individual. His weight is about 180 pounds and his height 5'8'. The plaintiff was born in a small town in Indiana County, Pennsylvania, on October 9, 1920. He reached the eighth grade in school, quitting at the age of 15 years. He is able to read and write and to do simple arithmetic problems, counting his change and making purchases, and calculating any pay due him. He worked as a farm laborer up to the age of 18 years, when he found employment as a laborer on construction work. He became the operator of heavy construction equipment, such as a power shovel, during the next 18 years. He worked at this occupation until July 26, 1957, when he was injured in the accident while he was 'cranking' a bulldozer, and the engine 'kicked' and caused him to receive a 'whiplash' injury to his spine.

 His evidence was to the effect that the injury caused him to suffer severe pain in his neck and back, as well as in both arms. At other times the pain in his neck and back ran down to the right leg, where he experienced a numbing sensation. He complained that the pain has continued ever since his injury, and that he has had constant headaches. He complained of a numbness in both hands in the mornings and numbness in the little finger and the ring finger of the right hand. As the result of this, he has been unable to perform as an operator of heavy equipment, and in fact, even to maintain a position as a foreman on road construction work in June 1960, when he could work only 20 days in a three month period. The plaintiff stated that he had attempted to do various kinds of work and chores around the home, but that he could not continue for more than one or two hours, when he would be compelled to lie down because of the pain. He could do small things including the operating of his automobile on short trips. The plaintiff is married and the father of four children.

 The burden is on the plaintiff to establish that he had such disability as would entitle him to rights under the Social Security Act. Burnett v. Flemming, D.C.Ohio, 1960, 190 F.Supp. 546; Farley v. Ribicoff, D.C., 203 F.Supp. 721. But we accept what Chief Judge Biggs of the Third Circuit, designated to sit in the District Court, said in Klimaszewski v. Flemming, D.C.E.D.Pa., 1959, 176 F.Supp. 927, 932: 'The statute must be given a reasonable interpretation. It is a remedial statute and must be construed liberally.' See also, Adams v. Flemming, C.A.Vt., 1960, 276 F.2d 901.

 This Court is cognizant of the fact that the plaintiff is a comparatively young man, and is aware also of the statements that were made by the plaintiff that there are times when he felt that he could do some light work; but due consideration must be given to the fact that, if the pain of the plaintiff is as disabling as he and his doctors say it is, that it would be unlikely and unwise for any employer to hire an employee whose attendance to the employment would depend upon the submergence or emergence of, and the degree of pain provoked by ephermeral causes on haphazard days.

 The plaintiff has given evidence of his inability to perform construction work even as a foreman. He has produced evidence of his inability to perform very light work even around the house. But even his statement reported to the Hearing Examiner that he felt he could do light work on some days, as a fact in itself, would not prevent his eligibility for disability insurance benefits. Intermittent, sporadic or infrequent activity does not constitute ability to engage in substantial, gainful activity precluding establishment of disability under this chapter of the Act. Campbell v. Flemming, D.C.Ky., 1961, 192 F.Supp. 62; Randall v. Flemming, D.C.Mich., 1961, 192 F.Supp. 111. In other words, substantial gainful activities precluding establishment of disability within this chaper means performance of substantial service with reasonable regularity in some competitive employment and does not contemplate complete helplessness. Campbell v. Flemming, supra; Roop v. Flemming, D.C.Va.1960, 190 F.Supp. 820; Ellerman v. Flemming, D.C.Mo., 1960, 188 F.Supp. 521. Substantial gainful employment is not to be taken to mean total, absolute, complete full-time activity for hire or compensation. It means a significant quantity of fairly constant physical, mental or mixed physical and mental service productive of value or benefit. It means employment that has substance.

 It is not the burden of the plaintiff to introduce evidence which negatives every imaginative job open to men with his impairment, and for his age, experience and education. It is enough if he offers evidence of what he has done, and that he no longer has the ability to do that kind of work for specific reasons, and of his lack of experience or education for doing other jobs which, if any, are available to him in the area, and for which he is suitable. It is then the burden of the defendant to produce evidence from which a finding can be made that the plaintiff can do some kind of work. Ellerman v. Flemming, supra; Parfenuk v. Flemming, D.C.Mass., 1960, 182 F.Supp. 532. The claimant's burden is merely to prove that as the result of his medically determined impairment, he is no longer capable of performing a substantial amount of work commensurate with his training, education and experience, or that he lacks ability to do any amount of the kind of work he has done, or for which he had been trained. Parfenuk v. Flemming, supra.

 Under the term 'disability' in the Social Security Act, the term has the definite meaning of 'inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration.' Farley v. Ribicoff, 203 F.Supp. 721, W.Pa.D.C., 1962.

 On review this Court has the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying or reversing the decision of the Secretary with or without remanding the case for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence shall be conclusive. 42 U.S.C.A. § 405(g). The Court is not free to substitute its inferences for those of the referee provided they are supported by substantial evidence. Livingstone v. Folsom, 234 F.2d 75 (3rd Cir., 1956). In examining the record then this Court looks to whether or not the determination by the Secretary is supported by substantial evidence that the plaintiff has not the ability to 'engage in any substantial gainful activity' because of the impairment of which he complains, which impairment is of such character that it 'can be expected to result in ...

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