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September 24, 1970

Harry DIBBLE, Jr., Plaintiff,
Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant

Gourley, District Judge.

The opinion of the court was delivered by: GOURLEY

This is an action under Section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare. The plaintiff filed application for a period of disability and for disability insurance benefits on December 8, 1964, alleging that he became unable to work on April 15, 1964. The Bureau of Disability Insurance determined that plaintiff was disabled under the 1965 Amendments to the Social Security Act from April 15, 1964 until July 19, 1965. Under the 1965 Amendments, plaintiff was thereby entitled to benefits through September of 1965 but said benefits also could not begin before September of 1965. Consequently, plaintiff received benefits for the month of September 1965.

 Plaintiff requested and was granted a hearing on January 5, 1966. On April 27, 1966, the Hearing Examiner awarded plaintiff continuing disability benefits and he received these benefits until August of 1968, when the Bureau of Disability Insurance terminated the benefits pursuant to 42 U.S.C.A. § 425. *fn1" Plaintiff requested a second hearing which was granted, and the Hearing Examiner rendered a decision on September 24, 1969 wherein he found that plaintiff was not entitled to disability insurance benefits subsequent to August of 1968. The Hearing Examiner's decision became the final decision of the Secretary when the Appeals Council denied plaintiff's request for review on November 18, 1969.

 A Complaint was timely filed in the United States District Court for the Western District of Pennsylvania. In response defendant filed an Answer and a certified copy of the administrative transcript. Subsequently, defendant filed a Motion for Summary Judgment. A hearing has been conducted, and, upon review of the administrative record, the pleadings, and the arguments and briefs of counsel, the Court denies the Motion for Summary Judgment.

 Pertaining to the scope of judicial review, § 205(g), supra, provides 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, * * *."

 Under this section and § 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 (3d Cir. 1957).

 Section 216(i)(1)(A) of the Act, as amended, 42 U.S.C.A. § 416(i)(1)(A), provides that the term "disability" means:

"* * * inability to engage in any substantial gainful activity by reason of any medical determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months * * *."

 The definition of "disability" under § 223(d) of the Act, 42 U.S.C.A. § 423(d)(1)(A), as amended, is the same. In making a finding as to plaintiff's ability to engage in any substantial gainful activity, four elements of proof are to be considered: (1) medical data and findings, (2) expert medical opinions, (3) subjective complaints, and (4) plaintiff's age, educational background, and work history. Underwood v. Ribicoff, 298 F.2d 850 (4th Cir. 1962); Stefero v. Gardner, 285 F. Supp. 898 (E.D. Pa. 1968); Dabravalskie v. Gardner, 281 F. Supp. 919 (E.D. Pa. 1968).

 It was the finding of the Hearing Examiner that plaintiff, subsequent to a spinal fusion in 1964, suffered from a residual back impairment which rendered him disabled until June of 1968. As of June of 1968, plaintiff's condition was found to have improved to the point where, although precluded from arduous exertion, heavy lifting, prolonged stooping, prolonged bending and prolonged squatting, plaintiff was able to engage in sustained light activities with occasional bending, stooping or squatting. Numerous jobs of a light or sedentary nature and within the capabilities of plaintiff were found to exist in the region of plaintiff's residence.

 In 1958, plaintiff injured his back while operating a vehicle. He began treatment with Dr. Silensky, an orthopedic surgeon, who treated him conservatively with a lumbosacral support. Plaintiff returned to work but reinjured his back in September of 1959 and was hospitalized. A myelogram revealed a ruptured disc and a laminectomy was performed. Plaintiff's condition improved and he returned and continued to work until April of 1964 when he again reinjured his back. At this time, plaintiff was again hospitalized and a spinal fusion was performed upon him by Dr. Silensky.

 The medical evidence immediately following plaintiff's fusion is conflicting. Plaintiff was examined by Dr. Davison, an orthopedic surgeon, on February 19, 1965. Plaintiff complained of continuing low back disability. He was found in no acute distress. His gait was fairly normal. Patellar reflexes were equal and active. Achilles reflexes were decreased bilaterally. No sensory changes or motor weakness were found. Straight leg raising was normal. A review of X-rays indicated, however, an incomplete fusion or pseudoarthrosis. Dr. Davison was of ...

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