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ZANOVIAK v. FINCH

July 31, 1970

Sophie ZANOVIAK
v.
Robert H. FINCH, Secretary, Department of Health, Education, and Welfare


Gourley, District Judge.


The opinion of the court was delivered by: GOURLEY

This is an action filed pursuant to Section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), wherein plaintiff seeks review of the decision of the Secretary of Health, Education and Welfare denying her claim filed on May 24, 1968 for disabled widow's insurance benefits under § 202(e) of the Social Security Act, 42 U.S.C.A. § 402(e).

 Plaintiff's application was denied by initial decision of the Bureau of Disability Insurance and upon reconsideration. A request for hearing was granted, and a hearing conducted on April 17, 1969. The Hearing Examiner held that plaintiff was not entitled to disabled widow's benefits. Plaintiff filed a request for review of the Hearing Examiner's action on August 1, 1969, and, on September 8, 1969, said request was denied by the Appeals Council. The denial by the Appeals Council became the final decision of the Secretary of Health, Education and Welfare.

 A Complaint was timely filed in the United States District Court for the Western District of Pennsylvania pursuant to § 205(g), supra. In response, defendant filed an Answer and a certified copy of the administrative transcript. Subsequently, defendant filed a Motion for Summary Judgment. Counsel for the respective parties have filed written briefs in support of their position on the Motion and have agreed to waive oral argument. Upon review of the administrative record, the pleadings, and the briefs of counsel, the Court is compelled to grant the Motion for Summary Judgment.

 Pertaining to the scope of judicial review, § 205(g), supra, provides as follows:

 
"The Court shall have the 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 hearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * *."

 Under this section and Section 10(e) of the Administrative Procedure Act, 5 U.S.C.A. § 706, the Court is 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 (3rd Cir. 1957).

 Section 223(d)(2)(B) of the Social Security Act, 42 U.S.C.A. § 423(d)(2)(B), defines disability for purposes of widow's benefits as follows:

 
"(B) A widow, surviving divorced wife, or widower shall not be determined to be under a disability (for purposes of section 202(e) or (f)) unless his or her physical or mental impairment or impairments are of a level of severity which under regulations prescribed by the Secretary is deemed to be sufficient to preclude an individual from engaging in any gainful activity."

 And section 223(d)(3), 42 U.S.C. 423(d)(3) provides:

 
"(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 and laboratory diagnostic techniques."

 And section 223(d)(5) of the Act, 42 U.S.C. 423(d)(5) provides that:

 
"(5) An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence ...

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