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POPOVICH v. CELEBREZZE

August 12, 1963

George POPOVICH
v.
Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare



The opinion of the court was delivered by: GOURLEY

In this proceeding, the claimant has brought this action in the United States District Court to review, in accordance with the provisions of 42 U.S.C.A. § 405(g), the final decision of the Secretary of Health, Education and Welfare, (hereinafter sometimes referred to as the Secretary,) denying the claimant disability benefits.

The decision of the Social Security Administration Hearing Examiner became the final decision of the Secretary of Health, Education and Welfare, when the Appeals Council of the Social Security Administration denied the request of the claimant for review of the Hearing Examiner's decision of August 10, 1962, denying plaintiff disability insurance benefits under 42 U.S.C.A. § 423(a), and denying him the right to have a period of disability established under 42 U.S.C.A. § 416(i).

 Subsequent to the filing of the petition for review, each of the parties filed motions for summary judgment. Since neither party has contended that remand to the Social Security Administration is required for further development of the facts, the motions for summary judgments properly bring before the Court for review the final decision of the Secretary denying the claim of the plaintiff, George Popovich, in which the conclusion was reached that plaintiff has not established that he has impairments of such severity as to preclude him from engaging 'in any substantial gainful activity or employment.' See 42 U.S.C.A. § 423(c)(2).

 A meticulous review of the record requires the Court to conclude that substantial evidence is not present to support the Examiner's finding that claimant has not established that he has impairments of such severity as to preclude him from engaging in any substantial gainful activity for the applicable period.

 LAW

 The rules of law that have application to an action of this nature have recently been most clearly enunciated and summarized by the United States Court of Appeals for the Third Circuit in Farley v. Celebrezze, 315 F.2d 704 (1963) (hereinafter sometimes referred to as Farley). As applied to a case of this type, the applicable rules are:

 (A) 'The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.' 42 U.S.C.A. § 405(g).

 (B) It is the function and duty of the Court to review the administrative record in its entirety to test the sufficiency of the evidence to sustain the decision of the Secretary that the claimant, George Popovich, has not established his disability within the period in question.

 (C) The test for disability within the Social Security Act consists principally of two parts:

 1. A determination of the extent of the physical or mental impairment and, 2. a determination of whether that impairment results in an inability to engage in any substantial gainful activity.

 (D) In determining whether a claimant's impairments result in inability to engage in substantial gainful employment within the Social Security Act, not only must the capabilities of the claimant be viewed in context with his own physical, educational and vocational background, but the question must be asked and resolved as to what employment opportunities there are for a man who can do only what the claimant can do, and mere theoretical ability to engage in substantial gainful activity is not enough if no reasonable opportunity for this is available.

 (E) 'Any substantial gainful activity' is to be read in the light of what is reasonably possible, not of what is conceivable.

 (F) The elimination of every possibility of gainful employment is not a condition precedent to ...


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