The opinion of the court was delivered by: HIGGINBOTHAM
Plaintiff Seldomridge again seeks review of the final decision of the Secretary of Health, Education and Welfare denying his application for the establishment of a disability freeze under § 216(i) of the Social Security Act, 42 U.S.C.A. § 416(i), and for monthly disability benefits under § 223 of the Act, 42 U.S.C.A. § 423.
Both plaintiff and defendant have moved for summary judgment.
As Seldomridge v. Ribicoff, 204 F.Supp. 707 (E.D.Pa.1962), this action was first reviewed and thereafter remanded by Judge Luongo, who concluded in accord with the Hearing Examiner's findings, that 'the evidence in this case reveals an impairment of long lasting duration * * *.' Id. at 711 (Emphasis added.) . Having found a lack of substantial evidence 'to support the (Secretary's) ultimate finding that plaintiff is not precluded from engaging in 'light work',' Ibid., Judge Luongo remanded the record to the Secretary to adduce more evidence 'as to the actual activities in which plaintiff can and cannot engage and as to his employment opportunities.' Id., at 711.
Thus, because of his specific findings of the 'noted deficiencies of the record * * * on material points,' and by reason of the findings which the Secretary 'failed to make,' and because the primary evidentiary facts' were 'legally insufficient,' the learned District Judge could have then (1) instantly granted plaintiff's motion for summary judgment, or, (2) as he did in a proper exercise of discretion, given the Secretary an additional opportunity to bolster the record in efforts to meet the precise standard of substantiality which the Secretary had failed to meet.
As I view the present posture of this case, my review will be limited to ascertaining whether the Secretary, after having had a second chance, has filled these evidentiary gaps which Judge Luongo properly termed deficient.
As the Court of Appeals of this Circuit has repeatedly emphasized, the test of disability consists of two parts: '(1) a determination of the extent of the applicant's physical or mental impairment, and (2) a determination of whether that impairment results in an inability to engage in any substantial gainful activity.' Janek v. Celebrezze, 336 F.2d 828, 833 (3rd Cir. 1964). See also Stancavage v. Celebrezze, 323 F.2d 373 (3rd Cir. 1963); Farley v. Celebrezze, 315 F.2d 704 (3rd Cir. 1963); Hodgson v. Celebrezze, 312 F.2d 260 (3rd Cir. 1963); Klimaszewski v. Flemming, 176 F.Supp. 927, 931 (E.D.Pa.1959); Kerner v. Flemming, 283 F.2d 916 (2d Cir. 1960).
As to the first test -- plaintiff's physical impairment -- the Secretary apparently concedes that Seldomridge has some partial impairment; and even if such a concession had not been made, I am in agreement with Judge Luongo's finding that 'the evidence in this case reveals an impairment of long lasting duration.' 204 F.Supp. 707, 711.
The Hearing Examiner, on June 6, 1960, found that by 'the weight of the substantial medical evidence * * * claimant is suffering from partial disabilities which, no doubt, handicap him in obtaining suitable gainful employment which may prevent him from engaging in his prior occupation or in other arduous work, * * *' (Tr. 14.)
To cast this case in its proper posture for review, it is necessary to (1) review some of the medical evidence as to the extent of the disabilities in order to (2) decide if Seldomridge has an inability to engage in any substantial activity.
After having reviewed the evidence, I have concluded that plaintiff is entitled to summary judgment because the record demonstrates that he has 'an inability to engage in any substantial gainful activity.' Janek v. Celebrezze, supra, 336 F.2d at p. 833.
Even a cursory review of this record demonstrates that before and after the remand, the Secretary consistently resolved every possible inference against the claimant -- even though there was often substantial evidence to support the position of the claimant. In fact, the Secretary's representative took painstaking efforts to exert every possible argument against the claimant.
When one recognizes that the Social Security Act '* * * is a remedial statute and must be construed liberally,'
such consistent administrative harshness causes one to have concern about the quality of justice for those numerous indigent claimants who cannot afford counsel. Also 'in view of the severe restrictions as to attorney's fees,'
there is a similar concern about the quality of justice which actually exists for those claimants who are readily able to pay for competent counsel.
In the instant matter, prior to the complaint filed in this court, Seldomridge was not represented by counsel at the bureau level, or in the appeals to the hearing examiner or to the Appeals Council.
Yet, if there is 'substantial' evidence supporting each of two diametrically opposed conclusions, and if within that context any of the Secretary's representatives is inclined when given a choice to resolve every permissible inference against the claimant, legally, such is his prerogative for which he cannot be reversed -- even if most fact finders would have readily reached the opposite result by sustaining the claim. This is his prerogative by reason of a presumed administrative expertise, and it is within such a limited scope of judicial review that I hereafter discuss and weigh the evidence.
EXTENT OF MEDICAL DISABILITY
Plaintiff's application for benefits alleges an inability commencing January 16, 1959, because of 'heart trouble, kidneys and lungs.'
Plaintiff filed his application for social security benefits on July 20, 1959. Thus, as the Appeals Council noted, he must 'establish that a disability * * * ...