is supported by substantial evidence.
II. Ability to Engage in any Substantial Gainful Activity
The Vocational Consultant's testimony in support of the Examiner's findings was restricted to responding to a hypothetical question listing plaintiff's impairments (as viewed by the Secretary), which is the proper procedure, Wooley v. Gardner, 283 F. Supp. 576 (E.D.Pa.1968), and listing five job classifications from the Dictionary of Occupational Titles ("D.O.T."), plus plaintiff's former occupation of tavern keeper (T.R. 72-74). These classifications were considered to reflect light and sedentary work and to be readily available in the Johnstown, Pennsylvania area.
On cross-examination by plaintiff's attorney the consultant admitted that the plaintiff's coughing could be both an impediment to obtaining a job and a health hazard (T.R. 75). This is important in assessing the realistic nature of the Secretary's evidence as to ability to engage in gainful activity, and in this case strongly militates against such realism. Dabravalskie v. Gardner, supra, 281 F. Supp. at 923.
Additionally, the use of the D.O.T. has been repeatedly condemned as speculative and insufficient evidence of ability to engage in substantial gainful activity, both before, Hodgson v. Celebrezze, 357 F.2d 750 (3 Cir. 1966); Seldomridge v. Celebrezze, 238 F. Supp. 610, (E.D.Pa.1964), and after, Olenchick v. Gardner, 284 F. Supp. 304, (W.D.Pa.1968); Batovich v. Gardner, 286 F. Supp. 962 (W.D.Pa.1968), the 1967 amendments to the statutory definition of disability, § 158(e) of P.L. 90-248, such amendments applying to this case.
The greatest deficiency in the Secretary's evidence surrounds three of the D.O.T. classifications cited by the Vocational Consultant and the former occupation of tavern keeper. With the exception of cashier and sales clerk, these categories describe jobs which the plaintiff had been performing since he left the mines. There is uncontradicted evidence in the record that plaintiff's ability to perform these tasks has steadily decreased since he started to operate the tavern, to the point where he can no longer perform them for any significant length of time, if at all (T.R. 51-56, 62). Additionally, the record is replete with the plaintiff's complaints concerning shortness of breath, inability to walk for more than several blocks under ideal conditions, difficulty in climbing stairs, need for prolonged periods of rest during the day, loss of grip, et cetera. The effect of plaintiff's inactivity on the earnings of the tavern has been significant and he states that the tavern will soon have to be closed altogether as his wife cannot handle it alone. The plaintiff cannot, in fact, do what the Secretary says he can do. Since the Secretary has ignored the best evidence of plaintiff's ability to engage in substantial gainful activity and has relied on evidence which is merely speculative, based on the record before us, his conclusion cannot stand. See Baker v. Gardner, 362 F.2d 864, 868 (3 Cir. 1966), distinguishing Dupkunis v. Celebrezze, 323 F.2d 380 (3 Cir. 1962). In this second part of the test of disability, the inquiry focuses on the individual claimant and not the hypothetical average man. Matias Rivera v. Gardner, 286 F. Supp. 305 (D.C.P.R.1968); Dabravalskie v. Gardner, supra. On the whole record as submitted, this Court concludes that the plaintiff is entitled to the benefits provided in the statute. The conclusion is based on a review of the record which in turn shows that there is no substantial evidence to support the Secretary's conclusion that the plaintiff can engage in substantial gainful activity.
And now, November 7, 1968, for the reasons mentioned in the foregoing opinion, the motion of the defendant for summary judgment is denied. The motion of the plaintiff Raymond P. Kelly for summary judgment in his favor is granted.