1969. Dr. Houck stated that back motion was limited about 50% in all directions. Despite X rays which indicated to the contrary, Dr. Houck believed the bone graft was not solid in view of plaintiff's continued complaints of pain, complaints which Dr. Houck accepted as genuine. Dr. Houck suggested the possibility of a back brace and physical therapy as a course of treatment.
Mr. Anderson was examined on April 29, 1970, by Dr. C. G. Cinelli, an orthopedic surgeon. X rays were taken. Dr. Cinelli concluded that plaintiff suffered from degenerative disc disease with a possible weakening of the spinal fusion. He felt that further surgery was warranted, preceded by a myelographic examination. Dr. Cinelli concluded that plaintiff was able to perform functions requiring short distances of walking, sitting and standing. However, he could not engage in activities requiring repetitive stooping, bending, lifting, climbing or kneeling.
At the hearing before the examiner, Dr. R. E. Chase, a vocational consultant, was asked to assume that plaintiff's abilities as of March 30, 1970, were those reported by Dr. Cinelli. On that basis, Dr. Chase stated that plaintiff would have been able to do the work of a nailing machine operator, a machine operator making cardboard boxes, a labeler, or a stamping machine operator. These jobs were available nationally and in the economic area where Mr. Anderson resides.
The burden of proof rests upon the claimant. He must show that he was entitled to benefits while still covered by the Social Security Act: Piper v. Richardson, 315 F. Supp. 234 (W.D.Pa.1970) and cases cited therein. Thus, Mr. Anderson must show he was totally disabled as of March 30, 1970, the last date on which he was qualified for disability coverage. Moreover, the determination of the Secretary of Health, Education, and Welfare must stand if there is substantial evidence to support it: 42 U.S.C. § 405(g); Ellis v. Finch, 333 F. Supp. 146, 147 (E.D.Pa. 1971).
In his evaluation of the record, the hearing examiner stated, "the medical evidence fails to show the claimant was physically unable to engage in any substantial gainful activity when he was still insured for disability insurance benefits." This finding was supported by the reports of Dr. Morrissey, Dr. Houck, and Dr. Cinelli. All concluded that while plaintiff had suffered an impairment, he was not totally disabled. Plaintiff presented no expert testimony to the contrary. The only evidence in his behalf were his complaints of pain. Of course, subjective complaints of pain are proper factors to be taken into account in determining disability: Nichols v. Finch, 421 F.2d 678 (4th Cir. 1970). However, such complaints may be evaluated by the finder of fact in light of the other evidence that may bear on the claimant's physical status.
Here, the circumstances under which Mr. Anderson left American Safety Table are indicative of both his ability to work and the job opportunities then available. His employment was not terminated because there was no work that he could perform or because he missed too much time. Rather, it was because after being carried on the disability list for six months, he did not return to work and did not show any good reason for his failure to do so.
The possibility that there would be a job within his capabilities was made known to him, but he did not avail himself of the opportunity to obtain it.
The conclusion of the hearing examiner was also supported by the independent testimony of the vocational consultant that as of March 30, 1970, jobs existed in the national economy which Mr. Anderson could have performed.
In view of the fact that the findings of the hearing examiner are supported by substantial evidence before him, I must grant summary judgment for the defendant.