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BATOVICH v. GARDNER

June 24, 1968

Ralph BATOVICH, Plaintiff,
v.
John W. GARDNER, Secretary of Health, Education, and Welfare, Defendant



The opinion of the court was delivered by: MARSH

 MARSH, District Judge.

 On January 10, 1966, plaintiff filed with the Social Security Administration, Bureau of Disability Insurance, an application to establish a period of disability under § 216(i) of the Social Security Act, as amended 42 U.S.C.A. § 416(i), and an application for disability insurance benefits under § 223 of the Act, 42 U.S.C.A. § 423, alleging that he became unable to engage in any substantial gainful activity on June 27, 1963.

 A final and binding decision of the Secretary on a prior application, however, determined that plaintiff was not under a disability through June 16, 1965, and at the hearing on his present application plaintiff amended his claims to allege disability commencing subsequent to June 16, 1965. *fn1"

 Plaintiff's claims were denied by the Bureau, and at plaintiff's request a hearing was held before a hearing examiner of the Social Security Administration, Bureau of Hearings and Appeals, who also denied plaintiff's claims. The Appeals Council of the Social Security Administration granted plaintiff's request for review and obtained additional evidence. On September 20, 1967, the Appeals Council advised plaintiff of its decision supplementing and affirming the hearing examiner's decision; whereupon, pursuant to § 205(g), plaintiff commenced this action to obtain a judicial review of the Secretary's decision *fn2" denying plaintiff's claims. With his answer to plaintiff's complaint, defendant filed a certified copy of the transcript of the record of the proceedings before the Social Security Administration in compliance with § 205(g) of the Act, supra, and subsequently moved for summary judgment.

 
"As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * *."

 Under § 205(g) and under the Administrative Procedure Act, 5 U.S.C.A. § 1009(e), we are limited to "ascertaining whether on the record as a whole there is substantial evidence to support the Secretary's findings of fact." Goldman v. Folsom, 246 F.2d 776, 778 (3d Cir. 1957); Ferenz v. Folsom, 237 F.2d 46 (3d Cir. 1956). "Our judicial duty therefore is to satisfy ourselves that the agency determination has warrant in the record, viewing that record as a whole, and a reasonable basis in law ". Boyd v. Folsom, 257 F.2d 778, 781 (3d Cir. 1958). See also, Braun v. Ribicoff, 292 F.2d 354, 357 (3d Cir. 1961).

 Section 223(d) of the Act, 42 U.S.C.A. § 423(d), as added by the "Social Security Amendments of 1967", § 158(b), 81 Stat. 868, defines "disability" for purposes of governing disability insurance benefits as follows:

 
"(d) (1) The term 'disability' means -
 
"(A) 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 which has lasted or can be expected to last for a continuous period of not less than 12 months; *fn3"
 
"* * *
 
"(2) For purposes of paragraph (1)(A) -
 
"(A) an individual (except a widow, surviving divorced wife, or widower for purposes of section 202(e) or (f)) shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), ...

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