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SCHAD v. FINCH

September 15, 1969

Roderick J. SCHAD, Plaintiff,
v.
Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant



The opinion of the court was delivered by: MARSH

 MARSH, Chief Judge.

 On September 7, 1967, plaintiff filed with the Social Security Administration an application for disability insurance benefits under §§ 216(i) and 223 of the Social Security Act, as amended, 42 U.S.C. §§ 416(i) and 423, alleging that he first became unable to engage in any substantial gainful activity in June, 1967. His claim was denied by the Division of Evaluation and Authorization 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 Bureau of Hearings and Appeals who also denied plaintiff's claim. On September 25, 1968, the Appeals Council of the Social Security Administration modified the hearing examiner's findings of fact *fn1" and affirmed the decision as modified; 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 *fn2" denying his claim. With his answer to the 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.

 Section 205(g), supra, provides in its pertinent part as follows:

 
"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 * * *." 42 U.S.C. § 405(g).

 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). "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).

 We have reviewed the record upon which the Appeals Council based its decision and conclude that on the record as a whole, the Secretary's decision that the plaintiff was not precluded from engaging in any substantial gainful activity is supported by substantial evidence.

 The medical evidence available to the hearing examiner and the Appeals Council showed that plaintiff suffered from coronary insufficiency caused by his 1959 heart attack, arteriosclerotic heart disease, general arteriosclerosis, hiatus hernia or duodenal ulcer, mild emphysema with mild interstitial fibrosis, and anxiety over his situation.

 None of the physicians were of the opinion that plaintiff was disabled. On the contrary, Dr. Kusher concluded that: "[If] he can be helped to get work which is not too strenuous, I believe that we can still have a useful tax-paying citizen" (R., p. 94). Robert C. Johnson, M.D., gave a good prognosis (R., p. 90).

 Plaintiff's subjective complaints relating to his work at the cigar store indicated that he had no difficulty except on occasions in the summer when he would be required to lift cases of full soft drink bottles weighing approximately 30 pounds. He would become fatigued, short of breath and get pains behind his chest on those occasions.

 A vocational expert testified that plaintiff would have a reasonable opportunity of securing a job in the retail sales field, especially in the field of tobacco and cosmetics products, and that the job markets in this field in and around Uniontown, Pennsylvania, and Washington, Pennsylvania, 10 and 25 miles from plaintiff's home, respectively, were good. Plaintiff was considered a likely prospect for retail sales work because of his prior experience, good appearance and his disposition.

 The hearing examiner and the Appeals Council concluded that because of his heart condition, plaintiff was precluded from engaging in his previous occupation as a trolley car operator and other occupations requiring moderate to strenuous physical exertion; nonetheless he was not disabled within the meaning of the Social Security Act because he could engage in his prior occupation in the retail sales field. In our opinion, substantial evidence of record, noted above, supports this conclusion.

 The initial burden of proof is on the plaintiff to prove a disability to engage in his prior occupations. Baker v. Gardner, 362 F.2d 864, 868 (3d Cir. 1966); Bujnovsky v. Celebrezze, 343 F.2d 868 (3d Cir. 1965). Since plaintiff ...


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