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KENNEDY v. WEINBERGER

January 28, 1974

Earl E. KENNEDY
v.
Caspar WEINBERGER, Secretary of Health, Education and Welfare


Joseph S. Lord, III, Chief Judge.


The opinion of the court was delivered by: LORD, III

JOSEPH S. LORD, III, Chief Judge.

We have before us cross-motions for summary judgment on an appeal from the decision of the Secretary denying claimant a period of disability or disability insurance benefits under §§ 216(i) and 223 of the Social Security Act, 42 U.S.C.A. §§ 416(i) and 423, as amended ("Act"). The specific issue before the court is whether there was substantial evidence to support the finding that claimant was not permanently and totally disabled as of September 30, 1964, the last day on which he met the insured status requirements.

 History of the Case

 Earl E. Kennedy filed for disability benefits on July 15, 1968. A hearing was held before the hearing examiner on August 21, 1969 and on September 23, 1969 he issued an opinion finding that claimant was not then, nor had he been on September 30, 1964, under a disability as defined in the Act. This opinion was then adopted by the appeals council and became the final decision of the Secretary. Claimant then appealed to this court for review, Civil Action No. 69-2846. We granted defendant's motion for summary judgment. Kennedy v. Finch, 317 F. Supp. 7 (E.D. Pa. 1970). Claimant then appealed to the court of appeals, which remanded on the grounds that the appeals council apparently had not dealt with the conflict between the hearing examiner's findings and a report from claimant's doctor submitted after the findings, asserting that claimant was then presently "unable to do any gainful occupation." Kennedy v. Richardson, 454 F.2d 376 (C.A. 3, 1972).

 Scope of Review

 In order to reverse the Secretary, we must find that his conclusions are not supported by substantial evidence. Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938), quoted in Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); accord Ginsburg v. Richardson, 436 F.2d 1146, 1148 (C.A. 3, 1971), cert. den. 402 U.S. 976, 91 S. Ct. 1680, 29 L. Ed. 2d 142, reh. den. 403 U.S. 912, 91 S. Ct. 2213, 29 L. Ed. 2d 690 (1971). We hold that claimant has submitted sufficient evidence that he was permanently and totally disabled on or before September 30, 1964, that he has remained so disabled until the present time, and that there is no substantial evidence to support the Secretary's decision to the contrary.

 We need not review claimant's entire medical history, since the question before us now involves only claimant's condition on September 30, 1964. Suffice it to say that the medical record reveals that for many years, claimant was far from being a well man, having suffered a variety of accidents and ailments. These included an accidental deformity of the elbow, carbon monoxide poisoning, hypertension, emphysema, lumbosacral strain and angina pectoris. However, the most significant factor in claimant's pre-1964 medical history was an accident in 1962 while claimant was working for Hahn Contracting Company. Claimant, together with another man, was carrying heavy steel plates. His fellow worker tripped and dropped his end of the load, throwing the entire weight on claimant. Upon hospitalization at St. Joseph's Hospital, the diagnosis was an unstable lumbosacral mechanism, moderately advanced overall degenerative osteoarthritic change, loss of the normal lordotic curve and a possible herniated disc.

 Following the 1962 accident, Dr. Linn found him completely disabled and claimant was unable to work for a period of approximately eleven months. He then returned to work with Hahn Company as a flagman and water boy. However, he left that job in July of 1964 because, according to the claimant's testimony, he was no longer able to work. Thereafter, the claimant worked only sporadically and his earnings were not sufficient to be characterized as "substantial." See Kennedy v. Richardson, 454 F.2d 376, 378, n. 4 (C.A. 3, 1972).

 In finding that the claimant was not disabled on September 30, 1964, the appeals council and the administrative law judge apparently relied upon several factors: claimant's return to work at Hahn, disbelief of the claimant's testimony as to why he ceased working and two notations in reports of Drs. Robinson and Glenney that claimant's inability to work began in 1968.

 We deal first with the 1968 notation of Dr. Robinson. The date July 9, 1968 was typed in a box provided on the form report entitled "date impairment prevented work." Reference to the body of the report makes it clear that this date refers to an occurrence about two weeks before Dr. Robinson's examination when the claimant was unable to get out of bed, which was the day claimant ceased working completely. Since Dr. Robinson had never examined the claimant in 1964 and since claimant's earnings following 1964 were not substantial enough to show non-disability, the 1968 date can have little meaning except as a reference to the precipitating event leading to claimant's visit to Dr. Robinson.

 Dr. Glenney, in his 1969 report, also noted 1968 as the "date impairment prevented work," but offered no explanation whatsoever in his report for choosing that date. Finding that claimant was totally disabled in 1969, his diagnosis included the following:

 
"1. Arthritis, degenerative, involving the dorsal and lumbar spine with significant narrowing between L-4 and L-5, compatible ...

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