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BOBACK v. FINCH

October 13, 1969

Lawrence BOBACK, Plaintiff,
v.
Robert H. FINCH, Secretary, Department of Health, Education and Welfare, Defendant



The opinion of the court was delivered by: MARSH

 MARSH, Chief Judge.

 On March 31, 1967, plaintiff filed with the Social Security Administration an application for a period of disability and for disability insurance benefits under Secs. 216(i) and 223 of the Social Security Act, as amended, 42 U.S.C. Secs. 416(i) and 423, alleging that he first became unable to engage in any substantial gainful activity at the end of January, 1967. His claims were 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, Social Security Administration, who also denied plaintiff's claims. On December 4, 1968, the Appeals Council advised plaintiff that, upon review, the hearing examiner's decision was affirmed; whereupon pursuant to Sec. 205(g) of the Act, as amended, 42 U.S.C. Sec. 405(g), plaintiff commenced this action to obtain a judicial review of the decision of the Secretary denying his claim. *fn1" 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 Sec. 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 * * *."

 Under Sec. 205(g) and under the Administrative Procedure Act, 5 U.S.C. Secs. 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).

 
"* * * 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 Sec. 223(d) of the Act, 42 U.S.C. Sec. 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 by reason of his impairments precluded from engaging in any substantial gainful activity is not supported by substantial evidence.

 The hearing examiner concluded that plaintiff "has first stage anthracosilicosis with mild interstitial pulmonary fibrosis and a mild impairment of pulmonary function which results in good ventilatory function; mild-moderate essential vascular hypertension which is treatable and is labile so that it usually does not become a significant impairment; and mild osteoarthritis of his knees without limitation of motion or tenderness." (R., p. 24.)

 The record reveals that these findings are supported by substantial evidence. All of the medical experts except Dr. McQuillan *fn2" concluded that plaintiff has a lung impairment. Dr. Goldman, a treating physician, characterized this condition as emphysema, silicosis and pulmonary fibrosis. Dr. Bradley concluded that plaintiff has first (and possibly second) stage anthracosilicosis and mild interstitial pulmonary fibrosis. *fn3" Pulmonary fibrosis was also diagnosed by Dr. Green. The pulmonary function studies conducted by Dr. Bradley revealed no significant obstruction to plaintiff's ventilatory capacity.

 All of the physicians except Dr. Green *fn4" concluded that plaintiff has ...


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