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December 30, 1965

Adam KNELLY, Plaintiff,
Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, United States of America, Defendant

The opinion of the court was delivered by: SHERIDAN

 This is a motion by the Secretary of Health, Education and Welfare for summary judgment in an action brought by plaintiff, Adam Knelly, under Section 205(g) of the Social Security Act, as amended, 42 U.S.C.A. § 405(g) to review a final decision of the Secretary that plaintiff is not entitled to disability insurance benefits and the establishment of a period of disability by reason of a disability as defined in 42 U.S.C.A. §§ 416(i) and 423.

 The question before this court is whether there is substantial evidence to support the Secretary's finding that plaintiff has not established his 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. 42 U.S.C.A. §§ 405(g), 416(i) and 423.

 Plaintiff filed his application on April 16, 1963. Plaintiff last met the earnings requirements on December 31, 1962. The evidence must establish that the claimant was under the required disability beginning on or before December 31, 1962, to qualify for disability insurance benefits and for the establishment of a period of disability.

 The burden is on the plaintiff to prove a disability as defined by the Act. 42 U.S.C.A. §§ 416(i) and 423(c). The Secretary's findings of fact and the reasonable inferences drawn therefrom are conclusive if they are supported by substantial evidence. Ferenz v. Folsom, 3 Cir. 1956, 237 F.2d 46; 42 U.S.C.A. § 405(g). Substantial evidence has been defined as that which is more than a mere scintilla. It is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Substantial evidence must be enough to justify, if the trial were to a jury, a refusal to direct a verdict, when the conclusion sought to be drawn from it is one of fact for the jury. The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. Consolidated Edison Co. of New York v. National Labor Relations Board, 1938, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126; National Labor Relations Board v. Columbian Enameling & Stamping Co., 1939, 306 U.S. 292, 300, 59 S. Ct. 501, 83 L. Ed. 660; Universal Camera Corp. v. National Labor Relations Board, 1951, 340 U.S. 474, 488, 71 S. Ct. 456, 95 L. Ed. 456. The determination of substantial evidence is to be made on a case-to-case basis. Celebrezze v. Wifstad, 8 Cir. 1963, 314 F.2d 208.

 A two-part test has been established to determine the existence of the required disability: (1) what is the extent, if any, of the claimant's physical or mental impairment, and (2) does the impairment result in his inability to engage in any substantial gainful activity? Klimaszewski v. Flemming, E.D.Pa.1959, 176 F. Supp. 927.

 The plaintiff's principal complaint is anthracosilicosis and related respiratory impairments. The record also suggests angina pectoris.

 The hearing examiner made no specific findings on the extent of anthracosilicosis. Thus, he concluded:

"* * * From the weight of the acceptable and credible medical evidence of record it is found that the claimant was not so impaired and that the claimant as of December 31, 1962, had a residual physical capacity which, considered, in connection with his age, education and experience, is determined to be adequate to enable him to discharge the job requirements of the numerous jobs listed by Dr. Granick. * * *
"After consideration of the entire record, including the testimony at both hearings, both medical and nonmedical, the Hearing Examiner finds that the claimant has not sustained his burden of proof of establishing that he has been continually unable to engage in any substantial gainful activity by reason of a medically determinable impairment or combination of impairments of the level of severity contemplated by the Act at any time on or before December 31, 1962, the terminal date to which the claimant was insured for such benefits under the Social Security Act. The Hearing Examiner finds on the basis of the substantial preponderance of the credible evidence that the claimant is not so disabled."

 The Appeals Council of the Social Security Administration adopted the hearing examiner's decision, but added:

"The evidence establishes that the claimant has anthracosilicosis; however, this condition, along with such other respiratory impairment as may be present, has caused only a moderate decrease in pulmonary function;".

 The examiner relied heavily on the interpretative opinions of Dr. Blum. He testified that the opinions in medical reports of Dr. Drogowski, plaintiff's physician, which were substantially reiterated in Dr. Drogowski's testimony, lacked graphic description and were not supported by tests. He also reviewed certain x-ray and medical reports by Drs. Corazza *fn1" and Auerbach, *fn2" referred to by the hearing examiner as impartial experts, whose reports contained the results of examinations and tests, and other supporting data. On the basis of the medical evidence, Dr. Blum concluded:

"* * * [From] all of these bits of testimony, I find that there is a clear cut diagnosis of second stage anthracosilicosis, with the patient's complaint that he coughs and becomes dyspneic on exertion, but findings of a patient who is comfortable at rest does not show evidence of disease in an objective sense except by x-ray and who may perhaps react poorly to a test of his exercise capacity, but in other respects does not react poorly. Those are the findings. * * * I think it is definite that this man has the capacity to carry on in activities which do not require much physical exertion. He is capable of doing anything of a sedentary nature, of working with his hands in activities which are usually done by sedentary, and that he is capable of walking, of moving about, of, for instance, going about by public conveyance. He is capable of climbing up and down steps, perhaps at a slow pace, and he is not disabled by disease in the sense of being actively sick as recorded by any of these examinations. We heard discussion of cough here. I saw nothing in these examinations to indicate that he is disabled by ...

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