The opinion of the court was delivered by: MARSH
On April 4, 1966, plaintiff filed with the Social Security Administration an application for a period of disability under § 216(i) of the Social Security Act, as amended, 42 U.S.C. § 416(i), and for disability insurance benefits under § 223 of the Act, as amended, 42 U.S.C. § 423, alleging that he first became unable to engage in any substantial gainful activity on November 12, 1964.
His claims were denied by the Evaluation and Authorization Branch of the Social Security Administration and by the Division of Reconsideration, Bureau of Disability Insurance, and at plaintiff's request a hearing was had before a hearing examiner of the Social Security Administration, Bureau of Hearings and Appeals, who also denied plaintiff's claims. On March 27, 1968, the Appeals Council of the Social Security Administration advised plaintiff that his request for review by it of the hearing examiner's decision was denied; whereupon, pursuant to § 205(g) of the Act, as amended, 42 U.S.C. § 405(g), plaintiff commenced this action to obtain a judicial review of the decision of the Secretary
denying plaintiff's claim. With his answer to plaintiff's complaint, defendant filed a certified copy of the transcript of the record of proceedings before the Social Security Administration in compliance with § 205(g) of the Act, supra, and subsequently moved for summary judgment. The plaintiff has filed a cross motion for summary judgment.
Section 205(g), supra, provides in its pertinent part as follows:
"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. § 1001 et seq., 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). And while "in discharging that duty we must keep in mind * * * that 'courts must now assume more responsibility for the reasonableness and fairness' of decisions of federal agencies * * *", Goldman v. Folsom, supra, 246 F.2d p. 778, citing Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951), we "may not substitute * * * [our] inferences for those of the referee which are supported by substantial evidence." Ferenz v. Folsom, supra, 237 F.2d p. 49, citing, inter alia, Livingstone v. Folsom, 234 F.2d 75 (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 216 of the Act, 42 U.S.C. § 416(i)(1)(A), as amended,
provides that the term "disability" means:
"* * * 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 has lasted or can be expected to last for a continuous period of not less than 12 months * * *."
The definition of "disability" under § 223(d) of the Act, 42 U.S.C. § 423(d)(1)(A), as amended, is the same.
"'[The] test for disability consists of two parts: (1) a determination of the extent of the applicant's physical or mental impairment, and (2) a determination whether that impairment results in an inability to engage in any substantial gainful activity.'" Bujnovsky v. Celebrezze, 343 F.2d 868, 870 (3d Cir. 1965); Janek v. Celebrezze, 336 F.2d 828, 833 (3d Cir. 1964); Hodgson v. Celebrezze, 312 F.2d 260, 263 (3d Cir. 1963); Klimaszewski v. Flemming, 176 F. Supp. 927, 931 (E.D.Pa.1959).
We have reviewed the record upon which the hearing examiner based his decision and conclude that on the record as a whole, the Secretary's decision that the plaintiff is not precluded from engaging in any substantial gainful activity is not supported by substantial evidence as that term is defined by the Supreme Court of the United States in the case of National Relations Labor Board v. Columbian Enameling and Stamping Co., 306 U.S. 292, 300, 59 S. Ct. 501, 505, 83 L. Ed. 660 (1939):
"Substantial evidence is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. 'It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,' * * * and it 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."
After reviewing the evidence, the hearing examiner found that the plaintiff has (1) a mild to moderate impairment of the pulmonary function as a result of moderate emphysema, (2) mild diabetes mellitus, controlled, (3) moderate osteoporosis resulting in moderate discomfort in his joints, and (4) a dilated left inguinal ring which precludes heavy lifting. The examiner also found that the plaintiff's impairments do not preclude him from engaging in sustained sedentary and light activities, eight hours a day on a regular basis, and that jobs, which plaintiff is capable of performing, are available in the area of his residence.
While holding that the hearing examiner's findings regarding the plaintiff's physical impairments are supported by substantial evidence, it is our opinion that his finding that the plaintiff is not precluded from substantial ...