employed as an electrician's helper. In August, 1962 he was returned to the Penitentiary for treatment and transferred to Spring Grove State Hospital, where he was again characterized as an inadequate personality. He was released from the hospital after approximately one month, although he continued to undergo treatment on an outpatient basis. He returned to work as an electrician's helper.
In June of 1963 plaintiff was arrested in Pennsylvania and charged with assault and battery, assault with intent to ravish, burglary and carrying firearms without a license. He was later convicted of attempted burglary and sentenced to a term of five to fifteen years. While awaiting trial he was sent to Harrisburg State Hospital for observation where he was described as having a sociopathic personality disturbance characterized by sexual deviation and rapist, sadist and masochistic tendencies. Plaintiff was transferred to the State Correctional Institute at Philadelphia later in 1963 and was incarcerated there until 1968. While there he worked in the kitchen as a baker's helper and assisted in dishing out food. In 1968 he was transferred to Huntington Correctional Institute where he again worked in the kitchen and in 1970 he was returned to Maryland for violating the parole on his original sentence.
Plaintiff applied for disability benefits on January 6, 1964. Benefits were denied by the hearing examiner on April 29, 1965 and the denial was affirmed by the Appeals Council on March 22, 1966. Plaintiff then instituted an action in this Court. We remanded the case to the Secretary on the grounds that (1) the hearing examiner and Appeals Council applied too inflexibly Section 404.1519(c)(2)(iii) of the Social Security Regulations, 20 C.F.R. § 404.1519(c)(2)(iii)
and (2) that the hearing examiner made no finding as to whether plaintiff's mental condition affected his employability. See Hunter v. Secretary, Department of Health, Education & Welfare, 284 F. Supp. 524 (E.D. Pa. 1968). A second hearing was held at which the hearing examiner determined that plaintiff's mental impairment did not preclude him from engaging in substantial gainful employment.
The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. 42 U.S.C. § 405(g). The question involved, therefore, is whether, viewed as a whole, the record contains substantial evidence to support the Secretary's finding that plaintiff was not under a disability as defined by the Social Security Act. Boyd v. Folsom, 257 F.2d 778 (3rd Cir. 1958). We conclude that the Secretary's findings are supported by substantial evidence.
In Marion v. Gardner, 359 F.2d 175 (8th Cir. 1966), the Court held that, while "* * * court-imposed hospitalization or incarceration is not, of itself, the kind of disability contemplated by the statute, [If], however, the confinement is occasioned 'by reason of any medically determinable physical or mental impairment,' etc., there is no reason why the statutory disability may not be established if the other prescribed conditions are met." 359 F.2d at 192. These other prescribed conditions are that, in addition to suffering from a mental impairment, the claimant must be unable to engage in any substantial gainful activity and that the inability be by reason of the impairment. Supra.
The Secretary found that plaintiff in the instant case did not show that his mental impairment rendered him incapable of engaging in substantial employment. We agree. It is well established that the mere presence of a disease or impairment is not of itself disabling. Gotshaw v. Ribicoff, 307 F.2d 840 (4th Cir. 1962). While plaintiff has established that he suffers from a mental impairment, he has presented no evidence which indicates that this condition renders him unable to engage in substantial employment. No medical report presented by plaintiff suggests that he cannot work. Moreover his work record shows continual employment during those periods when he was not incarcerated. Even in prison, plaintiff worked six or seven hours a day, five days a week in the prison kitchen.
In Pierce v. Gardner, 388 F.2d 846 (7th Cir. 1967) the Court distinguished Marion on the grounds that in that case the claimant was confined in an institution "providing for the care and commitment of persons having uncontrollable and insane impulses to commit sexual offenses." (emphasis added). In Pierce as in the instant case, no such uncontrollable impulse was shown, but rather a propensity for the commission of such crimes. There, as here, the claimant was engaged in continual employment except for those periods of time when he was incarcerated following his commission of a sexual offense. The Court concluded that:
"* * * [Plaintiff] has wholly failed to meet the burden of showing that his 'mental disorder' is what precludes him from engaging in substantial gainful activity. In fact, to the contrary, the record appears to indicate that the plaintiff's mental condition or disorder has not affected his ability to engage in his occupation as a sheet metal worker, albeit his propensities for the commission of sex offenses have repeatedly resulted in incarcerations which have interrupted his employment." 388 F.2d at 848.