The opinion of the court was delivered by: TROUTMAN
This action is brought under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare. The final decision in this case is that of the Appeals Council dated March 20, 1967, denying the plaintiff's request for the review of a decision rendered by the hearing examiner on November 22, 1966, in which the examiner denied the plaintiff benefits under Section 216(i) and Section 223, respectively, of the Social Security Act.
The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. 42 U.S.C. § 405(g). This Court has no authority to hear the case de novo. Thomas v. Celebrezze, 331 F.2d 541 (4th Cir. 1964); Mauldin v. Celebrezze, 260 F. Supp. 287 (D.C.S.C.1966). The question here involved, therefore, is whether there is substantial evidence to support the Secretary's decision. To answer this question, it is the duty of this Court to look at the record as a whole. Boyd v. Folsom, 257 F.2d 778 (3rd Cir. 1958); Klimaszewski v. Flemming, 176 F. Supp. 927 (E.D.Pa. 1959).
The test for disability consists principally of two parts: (1) a determination of the extent of the physical or mental impairment and (2) a determination whether that impairment results in an inability to engage in substantial gainful activity. Stancavage v. Celebrezze, 323 F.2d 373 (3rd Cir. 1963); Klimaszewski v. Flemming, supra, 176 F. Supp. at page 931.
"Substantial evidence" has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion". Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S. Ct. 1018, 1026, 16 L. Ed. 2d 131 (1966); Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938). It must be enough, if the trial were to a jury, to justify a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. If there is only a slight preponderance of the evidence on one side or the other, the Secretary's finding should be affirmed. Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir. 1962).
There are four elements of proof to be considered in making a finding as to plaintiff's ability or inability to engage in any substantial gainful activity. They are: (1) medical data and findings, (2) expert medical opinions, (3) subjective complaints, and (4) plaintiff's age, educational background, and work history. Dillon v. Celebrezze, 345 F.2d 753, 755 (4th Cir. 1965); Thomas v. Celebrezze, supra, 331 F.2d at 545; Underwood v. Ribicoff, supra, 298 F.2d, at 851.
We proceed to a consideration of the evidence in this case in the light of these elements of proof.
At the hearing held before the examiner on October 13, 1966, the examiner briefly reviewed, for the benefit of the plaintiff, the procedures and formalities of the hearing. Plaintiff was advised that the procedure is "informal", that Mr. Frank, a vocational consultant, would testify, and that Dr. Laigon, the plaintiff's physician, would also testify. Plaintiff was not advised that a considerable amount of evidence, already in the record by way of exhibits, would also be considered. Plaintiff, not being represented by counsel, made no appropriate inquiries regarding such exhibits and was given no opportunity to reply to same or to produce testimony with respect thereto.
Moreover, the informalities of the proceeding, the plaintiff's lack of representation by counsel and a "mix-up" prior to the taking of testimony may have substantially circumscribed the plaintiff's opportunities to present his case, in that Dr. Laigon had been kept waiting for "some time", was obviously anxious to get away and the brevity of his testimony would indicate that more emphasis was placed upon the doctor's early departure than upon a complete presentation of his testimony. (p. 20)
The doctor was not given the benefit of the plaintiff's testimony before testifying. On the contrary, plaintiff was asked only two questions, none of which related to his complaints or his condition, (p. 21) and Dr. Laigon was then called.
Plaintiff's application for benefits was filed on January 19, 1965, alleging inability to work as of January 31, 1964. (p. 43) The examiner, in an obvious effort to cooperate with Dr. Laigon, briefly examined him, and in the absence of plaintiff's testimony, it seems evidence that Dr. Laigon's testimony was not expanded as it might have been and probably would have been if such testimony had not been so substantially confined in point of time.
In any event, Dr. Laigon testified that he first saw the plaintiff "in late December 1963" and found him "ill with a febrile illness associated with a severe productive cough". On that basis and at that time, the doctor noted a preliminary "clinical impression" of "severe tracheobronchitis" for which treatment was initiated. (p. 22) Antibiotics, expectorants and bronchodilators were administered. (p. 22) By reason of lack of improvement in the plaintiff's condition and because of the continuation of "exertional dyspnea" X-ray studies were made. They disclosed a second stage anthracosilicosis with moderate pulmonary emphysema. (p. 23) This then was apparently the first time that the existence of anthracosilicosis was determined, at least insofar as Dr. Laigon was concerned. The plaintiff was seen by the doctor bi-weekly and sometimes monthly until August 1964, when there was some symptomatic improvement in plaintiff's condition in that he was coughing less, "but still continued quite dyspneic on effort". (p. 23) In September 1964, application for benefits under the Pennsylvania Occupational Disease Act was filed, followed by the filing, in January 1965, of the application for disability insurance benefits here in question. Application for occupational disease benefits under the Pennsylvania Act, according to the testimony of Dr. Laigon, resulted in an award based upon the plaintiff's "being totally and permanently disabled as a result of anthracosilicosis". (p. 25) In the interests of brevity, Dr. Laigon was not asked his opinion as to plaintiff's condition at the time of the proceedings before the Pennsylvania authorities and it is left only to inference that he may then and there have testified as to the existence of permanent total disability resulting from anthracosilicosis. On the contrary, his opinion, as regards this record, was reflected in his report dated January 26, 1965, (Exhibit No. 20, page 77) wherein, under "History", he refers to the plaintiff's inability to work since February 1964; wherein he refers to the plaintiff's cough, shortness of breath, pulmonary emphysema, and to a diagnosis of anthracosilicosis, stage 2, based upon the objective X-ray findings, all of which he states caused the plaintiff to be "totally disabled for usual work". (p. 77)
Inability or incapability of performing "usual" work is one of the tests prescribed by the code of Federal regulations, 20 C.F.R. § 404.1502(b), in defining disability for purposes of the Social Security Act. Thus, the testimony of Dr. Laigon, with supporting exhibit, is sufficient to support an award of benefits if the evidence otherwise of record so indicates.
Other evidence produced at said hearing consisted of the plaintiff's testimony, who, in the absence of counsel and in the absence of legal advice, was more interested in establishing his wage record than in establishing his physical condition. He apparently felt that his physical condition: i.e., the existence of total disability had been adequately established before the Pennsylvania Compensation authorities. If he was of this impression, he was in error. National Labor Relations Board v. Pacific Intermountain Express Co., 228 F.2d 170, 176 ...