Before BIGGS, Chief Judge, HASTIE, Circuit Judge, and KIRKPATRICK, District Judge.
The plaintiff, Henry Janek, suffered an injury to his back on April 6, 1959, and subsequently filed an application for the establishment of a period of disability and for disability insurance benefits under the Social Security Act §§ 216(i) and 223, respectively, as amended, 42 U.S.C.A. §§ 416(i) and 423.His application was denied, and a request for reconsideration made by him also was denied. Thereafter, a hearing was held and upon denial of the claim by a Hearing Examiner further review was denied by the Appeals Council of the Bureau of Hearings and Appeals, making the Hearing Examiner's decision the final order of the Secretary of Health, Education and Welfare. See Goldman v. Folsom, 246 F.2d 776, 778 (3 Cir. 1957).
Janek then brought the suit in the court below under Section 205(g) of the Act, as amended, 42 U.S.C.A. § 405(g), and the court below granted the Secretary's motion for summary judgment under Rule 56, Fed.R.Civ.P. 28 U.S.C., on the grounds that there was sufficient evidence in the record to support the Secretary's finding. The appeal at bar followed*fn1
Janek came to the United States from Germany in 1954. At the time suit was filed in the court below he was 36 years old, married and the father of two children.
Prior to coming to the United States, Janek had had approximately eight years of schooling or what we would designate in this country as graduation from grammar school. He subsequently had three years of training in an apprenticeship program for a clerical office, under the German system. This training was interrupted by World War II. Janek estimates his training in this respect to be the equivalent of a high-school education in the United States. He has received no mechanical training of any kind. After the war he worked in Germany as a coal miner and as a laborer in removing wardamage debris in and around Berlin. It does not appear that he was ever employed as a clerk in Germany.
After coming to the United States, Janek and his wife attended night classes in the English language. This is the sole education he has had here. The lower court indicated that "a reading of the transcript of the hearing in this proceeding, and of the papers filed by plaintiff in connection therewith, indicate that he is an alert individual, with a good understanding and command of English, and above average intelligence."
Janek's first job in this country, indeed of short duration, was for a bakery company, where the work consisted of cleaning the utensils used in baking. Following this, from April 1954 to August 1955, he worked in a chemical factory washing empty drums and moving filled drums from place to place. From August 1955 to January 1956, Janek was employed as a power-press operator for a manufacturer of fire extinguishers. Thereafter and until May 18, 1959, he worked for the Federal Pacific Electric Co.
On April 6, 1959, Janek, in the course of his employment, while sliding or pushing a heavy case across the floor, sustained a painful injury to his back. Recovering from a temporary inability to straighten his body up, i. e., to stand erect, he continued to work and seemingly required no medical attention at the time. Two weeks later, his back having become more painful, he consulted the company physician and received treatment until May 29, 1959. On that date he was hospitalized in the St. James Hospital, complaining of back pains, where he was placed in traction, the diagnosis being myositis or inflammation and strain of a muscle in the lower back, parospinal. He was subsequently discharged as "improved." After returning to work and finding himself physically unable to perform the jobs allotted to him, Janek, on June 20, 1959, was again hospitalized this time at the Hospital for Crippled Children and Adults. The diagnosis was "herniated disc, L-5, S-1." On July 2, 1959, the disc was removed by a laminectomy and Janek was subsequently discharged.
On advice from Dr. Phillip Willner, the surgeon who operated on him, and Dr. I. J. Bernstein, a chiropractor and Janek's personal physician, that he could no longer do "heavy work," Janek applied to his former employer, Federal Pacific Electric Co., seeking "light work." It was refused him. He secured employment as the driver of a Good Humor truck for one day and sporadic jobs as a painter. He has secured no other gainful employment.
Section 223(c) of the Social Security Act, 42 U.S.C.A. § 423(c) (2), defines the "disability" which must be shown before an applicant is eligible for insurance benefits as "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." The identical definition, in Section 216(i) (1), as amended, 42 U.S.C.A. § 416(i) (1), is applicable under Section 216(i) (2), as amended, 42 U.S.C.A. § 416(i) (2) in order to determine the period of disability.
Our task is to determine whether the court below applied the proper test when it held under Rule 56 that there was substantial evidence in the record to support the finding of the Examiner that Janek was not precluded by his physical condition from substantial gainful activity. Section 205(g) of the Act, as amended, 42 U.S.C.A. § 405(g).
Janek was examined by several physicians in connection with his injury, some of whom examined him on behalf of the Secretary and some on behalf of the State of New Jersey, Workmen's Compensation Bureau.
Dr. Bernstein's first post-operative report, made in the capacity of attending physician to the Massachusetts Mutual Insurance Co., the insurer of the Federal Pacific Electric Co., indicated that "claimant's position is growing worse and while claimant is mentally competent, he is by reason of the present disability permanently, continuously and wholly prevented from pursuing any and all occupations." However, his two later reports made to the Hearing ...