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KALAN v. FINCH

June 25, 1970

Joseph F. KALAN, Jr., Plaintiff,
v.
Robert FINCH, Secretary of the United States Department of Health, Education and Welfare, Defendant


Marsh, Chief Judge.


The opinion of the court was delivered by: MARSH

MARSH, Chief Judge.

 On June 24, 1968, plaintiff filed with the Social Security Administration an application to establish a period of disability under § 216(i) of the Social Security Act, as amended, 42 U.S.C. § 416(i), and an application for disability insurance benefits under § 223 of the Act, as amended, 42 U.S.C. § 423, alleging that he became unable to engage in any substantial gainful activity on June 1, 1968, as a result of a bad back and lung condition (R., p. 81). Plaintiff's claims were denied initially and upon reconsideration by the Bureau of Disability Insurance, and at his request a hearing was held before a hearing examiner of the Bureau of Hearings and Appeals who also denied his claims. On June 27, 1969, 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 *fn1" denying his claims. With his answer to plaintiff's complaint, defendant filed a certified copy of the record of the proceedings before the Administration in compliance with § 205(g) of the Act 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. §§ 701 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).

 
"[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).

 Section 223(d) of the Act, supra, provides:

 
"(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 * * *.
 
"(2) For purposes of paragraph (1)(A) --
 
"(A) an individual * * * 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), 'work which exists in the national economy' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.
 
"* * *
 
"(3) For purposes of this subsection, a 'physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical ...

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