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CHRISTOPHER v. FINCH

August 13, 1970

Edith E. CHRISTOPHER
v.
Robert W. FINCH, Secretary of Health, Education & Welfare


Wood, District Judge.


The opinion of the court was delivered by: WOOD

WOOD, District Judge.

 The issues arise under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a decision of the Secretary of Health, Education and Welfare denying claimant's application for a period of disability and disability benefits under Sections 216(i) and 223 of the Social Security Act. The conclusions of the hearing examiner became final when the Appeals Council affirmed on August 7, 1969.

 Both parties have moved for summary judgment and claimant alternatively asks for a remand.

 By statutory provision, the findings of the Secretary, as to any fact, if supported by substantial evidence, shall be conclusive. 42 U.S.C. § 405(g). In the instant case, we conclude that both the findings and the decision of the Secretary are supported by substantial evidence.

 The claimant, Mrs. Edith E. Christopher, was born in 1920, completed the tenth or eleventh grade in school and is able to read and write. She first worked as a domestic. Afterward she was employed as a sewing machine operator and later as an examiner in the clothing industry.

 Mrs. Christopher last worked in April, 1961. At that time she quit because of pains in her chest. (N.T. 62) In her application for disability dated September 4, 1968, claimant also alleged kidney and liver ailments, poor eyesight, seizures of hyperventilation, possible brain tumor and heart murmur.

 The hearing examiner, after considering the testimony of the claimant, a medical advisor who had examined the medical record, and a vocational expert, concluded that the only medically acceptable diagnoses of claimant's condition were hyperventilation syndrome and psychoneurosis and that these conditions were not of sufficient severity to prevent her from engaging in any substantial gainful activity as of September 30, 1965, the last date on which she met her insured status. He further concluded that prior to that date she could have returned to her former job as a sewing machine operator and that she also had the physical functional capacity to engage in other job categories which existed in her region and several other regions of the country in substantial numbers.

 Section 223(d)(3) of the Social Security Act states:

 
"(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."

 Claimant does not argue with the hearing examiner's finding that hyperventilation and psychoneurosis were the only impairments from which she suffered that were demonstrable by clinical and laboratory diagnostic techniques. Rather, it is argued that, once the hearing examiner accepted these two diagnoses, he had to consider claimant's testimony as to the effect of these impairments and not merely limit his consideration to objective evidence. We find that the hearing examiner did not so limit the evidence. Before Dr. Gelfand, the medical advisor, testified as to the claimant's condition, the hearing examiner questioned him as follows:

 
"Q: Now, doctor, is it correct to state that your testimony here today will be based on the medical exhibits, the testimony of the claimant and your observation of the claimant, and also your expertise in the medical profession?
 
"A: Yes, it is." (N.T. 82)

 Thus claimant's testimony was one of the factors taken into account by Dr. Gelfand when he testified. He nevertheless concluded that the level of impairment was very moderate (N.T. 88) and that claimant could return to ...


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