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December 22, 1971

Maurice C. JOHNSON and Virginia Johnson
The Honorable Elliott RICHARDSON, Secretary of Health, Education and Welfare

Troutman, District Judge.

The opinion of the court was delivered by: TROUTMAN

This action, brought against the Secretary of Health, Education and Welfare, pursuant to Section 1869(b) of the Social Security Act, 42 U.S.C. § 1395ff(b), seeks to review a final decision of the Secretary, denying the plaintiff the payment of benefits for services provided to him, Maurice C. Johnson, as an in-patient at the Haverford Nursing Center, during a portion of the period May 19, 1969, through July 7, 1969.

 Judicial review is governed by the provisions of Section 205(g), 42 U.S.C. § 405(g), which provides, inter alia, "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * *".

  This Court has no authority to hear the case de novo. Thomas v. Celebrezze, 331 F.2d 541 (4th Cir. 1964); Mauldin v. Celebrezze, 260 F. Supp. 287 (D.C.S.C. 1966).

 Therefore, the question here involved is whether there is substantial evidence to support the Secretary's decision. To answer this question, it is the duty of this Court to look at the record as a whole. Boyd v. Folsom, 257 F.2d 778 (3rd Cir. 1958); Klimaszewski v. Flemming, 176 F. Supp. 927 (E.D. Pa. 1959).

 "Substantial evidence" has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion". Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S. Ct. 1018, 1026, 16 L. Ed. 2d 131 (1966); Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938). It "must do more than create a suspicion of the existence of the fact to be established", NLRB v. Columbian Enameling and Stamping Co., 306 U.S. 292, 300, 59 S. Ct. 501, 505, 83 L. Ed. 660. It must be enough, if the trial were to a jury, to justify a refusal to direct a verdict when the conclusions sought to be drawn from it is one of fact for the jury. If there is only a slight preponderance of the evidence on one side or the other, the Secretary's findings should be affirmed. Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir. 1962).

 Section 1862 of the Act, 42 U.S.C. § 1395y, lists a number of "exclusions from coverage". Among others, there is Section 1862(a)(9), 42 U.S.C. § 1395y(a)(9), which provides for an exclusion "where such expenses are for custodial care". Basing its decision upon such exclusion, the appeals council concluded, inter alia, as follows:

"In summary, the medical evidence of record indicates that the claimant was ill while at the Haverford General Hospital and that a period of restorative care might have been necessary immediately after discharge from the hospital. However, it does not show that at any time during the period at issue, that is, from June 1 to July 7, 1969, the claimant needed and received skilled nursing care on a continuing basis for any condition or conditions with respect to which he was receiving inpatient hospital services prior to entering the Haverford Nursing Center or for a condition which arose while receiving extended care for treatment of the original condition.
Therefore, it is the decision of the Appeals Council that the claimant is entitled to have payment made on his behalf for post hospital extended care services received in the Haverford Nursing Center for the period from May 19, 1969 to June 1, 1969, but not for the period June 1 to July 7, 1969. The decision of the hearing examiner is reversed."
(See page 9 of the record.)

 Thus, we are here concerned with the question whether the findings and conclusion of the Appeals Council is supported by "substantial evidence" as that term has been defined by the Courts.

 Turning now to the record, we note that the hearing examiner found otherwise, having concluded, on April 30, 1970, that the plaintiff, during the period in question, "required skilled nursing services" and was, therefore, entitled to coverage under the Act. (P. 21) This decision followed a hearing held before the examiner on April 10, 1970, at which time Mrs. Evelyn Miller, a registered nurse, testified that, based upon her nursing experience and as a friend of Mrs. Johnson, she was of the opinion that Mrs. Johnson could not have taken care of the patient and plaintiff, Mr. Johnson, during the period June 1969. (P. 34) She spoke as a friend of the family, basing her conclusions upon observations made during social visits. (P. 34) She has never rendered any professional services to the plaintiffs. She did visit Mr. Johnson while he was in the nursing home, but did not, during her visits, observe that he received any medication. (P. 35) He was in bed and, according to her, "receiving no particular care", just "lying in bed talking with us". (P. 35)

 Dr. Norman Learner reviewed the record and concluded that during the period in question, Mr. Johnson "needed primarily custodial care". (P. 37) He conceded that while the plaintiff might "do better" in an extended care facility, he was of the opinion that the care rendered to the plaintiff during the period in question was "custodial as contrasted with medical". He made those determinations based upon the records and without examination of the plaintiff at the time. (P. 37) After looking at the record, he concluded that the type of care which the plaintiff was receiving was "custodial" in nature. He buttressed his conclusion with observations that the plaintiff was receiving oral medications only which "could have been administered by a non-professional or non-skilled personnel". (P. 38) He also pointed out that during the period in question the attending nurses made only four entries on the plaintiff's record, namely, on May 19 the plaintiff's admission was noted; on May 20 he was visited by the doctor; a third note that he received some aspirin and, finally, a fourth entry on July 6 that he was being discharged. It was the conclusion of the witness that the lack of entries and lack of notes on the plaintiff's record indicated lack of professional treatment which, combined with other evidence on the records, led the witness to the professional conclusion that the plaintiff "primarily received custodial care". (P. 38) He failed to find "any evidence that he (plaintiff) required any expert care". (P. 38) He conceded that on one occasion an electrocardiogram was done, that from time to time the blood pressure and pulse were taken, the latter done every day (p. 39) and likewise noted specifically the medications being given the plaintiff. (P. 40) For the conditions from which the plaintiff suffered he said observation by a physician was required only "every three or four weeks". (P. 40) Careful cross-examination of the witness established that Mrs. Johnson, in her condition, might not have been able to take care of the plaintiff, Mr. Johnson. (Pp. 45, 46) However, the ability or inability of his spouse to assist in the care of a patient is not determinative of eligibility under the Act.

 Turning to the balance of the record which does not consist of oral testimony, but rather of entries placed upon the plaintiff's chart during his stay at the nursing home and during the period in question, we note that the "doctor's progress notes" show that following admission on May 19, 1969, plaintiff's condition was noted, on May 23, as "greatly improved from time of admission to Haverford Hospital". On May 31 it was noted "abnormal fibrillating gone except for occasional episodes of fibrillation". On June 3 it was noted "mind clearer--pulse regular". On June 12, 1969, it was noted "patient ambulatory and doing quite ...

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