plaintiff was not precluded from any gainful activity.
Counsel for plaintiff, however, raises three objections herein. It is contended that the regulations promulgated in the implementation of § 223(d)(2)(B) of the Social Security Act, supra, are overly general and require a predetermined result upon a claim for disabled widow's benefits regardless of the particular circumstances of the case. It is well established that Congress may delegate to administrative officials the details of regulations which are necessary to implement more general enactments. United States v. Rock Royal Co-op., 307 U.S. 533, 574, 59 S. Ct. 993, 83 L. Ed. 1446 (1938). A regulation which carries out Congressional policy is valid. Haberman v. Gardner, 296 F. Supp. 661 (S.D.N.Y. 1968). In the instant case, § 223(d)(2)(B) specifically delegates to the Secretary the responsibility for enacting regulations establishing the level of severity of an impairment necessary for the recovery of disabled widow's benefits. The regulations enacted pursuant thereto, and the Appendix which comprises a part thereof, contrary to being general, are extremely specific in their designation of the nature and extent of particular disabilities which will render a widow entitled to disability benefits. It is wholly within the liberal intent of the Act that the Secretary has also seen fit to provide in § 404.1505 of the regulations, 32 C.F.R. § 404.1505, that compensation shall be granted to a widow whose impairment or cumulative impairments are determined medically to be the equivalent in severity and duration of a specific impairment listed in the Appendix. Accordingly, these regulations are a valid implementation of § 223(d)(2)(B) of the Social Security Act, supra.
Plaintiff also objects to the receipt in evidence of the medical reports of the two physicians designated by the Secretary, both of whom rendered the opinion that plaintiff was not disabled within the meaning of the Act. Plaintiff's objections are founded upon the fact that both physicians based their reports fully upon the medical reports of other physicians and did not examine the person of the plaintiff. Also, it is contended that their testimony is not entitled to weight for the further reason that they failed to appear personally before the Hearing Examiner.
With respect to the introduction into evidence of a medical report of a physician who has not personally examined a claimant and does not appear in person before the Hearing Examiner, it has been stated that mere uncorroborated hearsay evidence as to the physical condition of a claimant, standing alone, is not substantial evidence, if the claimant objects to the hearsay evidence and if the hearsay evidence is directly contradicted by the testimony of live medical witnesses and by the claimant who testifies in person before the examiner. Breaux v. Finch, 421 F.2d 687, 689 (5th Cir. 1970). However, such were not the circumstances here.
Plaintiff was represented by counsel when she appeared before the Hearing Examiner on April 17, 1969. At the outset of the hearing, the Hearing Examiner asked whether there were any objections to any of the exhibits proposed to be offered in evidence, and counsel replied that he had no objections. (T. 27) Moreover, there was no live medical testimony offered by the plaintiff which was in contradiction to the findings contained in the medical reports of the two physicians designated by the Secretary to evaluate plaintiff's alleged impairment on the basis of her prior medical records. Also, it is questionable whether it can be said that the conclusions of these physicians were uncorroborated. Not only did the report of one corroborate the report of the other, but also the other medical evidence of record tended to support rather than to refute the conclusions of these two physicians. In particular the report of Dr. DeMatteis was corroborative of their conclusions. In these circumstances, the Court concludes that the conclusions stated in the medical reports of the physicians examining plaintiff's records on behalf of the Secretary did constitute substantial evidence from which the Hearing Examiner could make a determination that no disability existed.
Counsel raises a final contention that the Secretary failed to offer the testimony of a vocational expert at the hearing. However, it is clear from the previously quoted statement of the Senate Finance Committee that, for purposes of determining a widow's disability under § 223(d)(2)(B) of the Social Security Act, supra, Congress intended that the determination of disability would be made "without regard to nonmedical factors such as age, education, and work experience, which are considered in disabled worker cases." It was plaintiff's burden to offer sufficient medical evidence to establish the requisite severity of an impairment to merit recovery. This plaintiff failed to do. It was not incumbent upon the Secretary to provide vocational evidence of any nature with respect to her disability, for Congress rendered this type of evidence immaterial to a disabled widow's claim.
With respect to § 223(d)(1)(A) of the Social Security Act, 42 U.S.C.A. § 423(d)(1)(A), the provision which defines disability for purposes of disabled worker cases, the Court of Appeals for the Third Judicial Circuit has recently said:
"While this Court has stated that this restrictive language imposes a 'very harsh' burden upon applicants for disability benefits, it is clear that we are bound by its wording. Gentile v. Finch, 423 F.2d 244, 248 (3d Cir. 1970)."
The requirements for the establishment of a widow's disability under § 223(d)(2)(B), supra, are all the more restrictive and harsh upon the applicant. To preclude a widow's recovery, it need only be shown from a medical standpoint that she can participate in any gainful activity and not that she can perform substantial gainful activity. The Court is constrained to follow these limitations. In the light of the same, the Court finds that the Hearing Examiner's findings of fact were supported by substantial evidence and that disability benefits were properly denied.
An appropriate Order is entered.
Now, this 31 day of July, 1970, it is hereby ordered that defendant's Motion for Summary Judgment be and the same is hereby granted.
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