The opinion of the court was delivered by: GOURLEY
This is an action filed pursuant to § 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), wherein plaintiff seeks judicial review of the decision of the Secretary of Health, Education and Welfare denying his application filed on May 18, 1969 for disability insurance benefits and for a period of disability under § 223 and § 216(i) of the Social Security Act, 42 U.S.C.A. §§ 423 and 416(i).
On June 18, 1968, plaintiff filed an application for a period of disability and for disability insurance benefits stating that he became unable to work in October 1966. The Bureau of Disability Insurance denied the application on August 1, 1968, and plaintiff did not pursue this application. Plaintiff filed a second application on May 18, 1969, alleging that he became unable to work in 1966 as a result of silicosis, varicose veins, poor circulation in both legs and arthritis. This application was initially denied on June 19, 1969 and on reconsideration on July 8, 1969. Thereafter, a timely request for hearing was filed and, after due notice, the same was held on November 7, 1969. By decision dated November 17, 1969, the Hearing Examiner held that plaintiff was not entitled to a period of disability or disability insurance benefits. On December 19, 1969, plaintiff filed an appeal with the Appeals Council. By decision dated January 29, 1970, the Appeals Council denied plaintiff disability benefits and affirmed the Hearing Examiner's decision of November 17, 1969.
Plaintiff, having exhausted his administrative remedies, commenced an action in this Court on February 25, 1970, which was within the sixty day period required by § 205(g), supra. In response to the Complaint, 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 positions 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 * * *."
To qualify for disability insurance benefits and a period of disability under sections 223 and 216(i) of the Social Security Act, 42 U.S.C.A. §§ 423 and 416(i), plaintiff must meet the insured status requirements of these sections, be under age 65, file an application for disability insurance benefits and a period of disability, and be under a "disability" as defined in the Act.
The term "disability" is defined in section 223 to mean:
"(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 ...