graduation, he worked first as a research chemist until 1939 and then as a chemical engineer involved primarily in the production phase of a company, Joseph E. Siegerman and Sons, which produced alcoholic beverages. In 1941, the plaintiff was employed at the Edgewood Arsenal in Maryland, where for two years he was engaged in the development of incendiary materials. In 1943, he joined the U. S. Department of Agriculture as a chemical engineer in its Eastern Research Laboratory where he worked for five years. From 1952 to 1959, he worked principally in sales engineering, although at times he was employed as a sales manager and technical director. During this period, he was also retained as a representative of an electronics, rubber, and plastics company, calling on other companies both as a salesman and to provide technical advice. In 1959, Mr. Howerton formed his own chemical sales company, Howerton Chemical Corporation. This enterprise was a close corporation in which he and his wife were principal stockholders and from which he received a salary until 1970.
From 1963 until August 1970, along with his other business endeavors the plaintiff worked as a research chemist and supervisor of chemical research projects in the Naval Air Development Center at the Philadelphia Navy Yard. In 1964, Mr. Howerton while employed at the Naval Air Development Center began to develop headaches. Over a period of time these pains grew more severe and he began to complain of pains in his frontal sinuses. He reported these symptoms to his family physician, Dr. Joseph McCadden, a general practitioner.
On November 14, 1967, Dr. McCadden disclosed that he had treated the plaintiff on various occasions since 1964 for sinusitis and that he suffered from chronic infections and pain in his sinuses with resultant complications of headaches and arthritis of the neck which appeared to be worsening. Plaintiff had also experienced bleeding of the mucous membrane. Dr. McCadden believed that the plaintiff's condition had been caused primarily by prolonged exposure to low concentrations of methylene chloride and possibly other vapors in his work environment. He appeared to have developed a sensitivity to these irritants which made him sensitive to drafts causing susceptibility to infection.
Because of the persistence of his condition, plaintiff was advised by Dr. McCadden to consult other physicians. Dr. Lawrence J. McStravog, a specialist in Otolaryngology, examined the plaintiff in the Fall of 1969. An X-ray examination was given by Dr. Thomas C. Jacob, a specialist in Radiology, who diagnosed plaintiff's condition as pansinusitis. He was also examined by Dr. Heinrich Brieger, a retired physician, who concurred in the opinion of Dr. Jacob.
In August 1970, the plaintiff was placed on disability from the Navy Department because the deterioration of his sinus condition prevented the further performance of his duties as a polymer research chemist. This position required prolonged exposure in the laboratory to chemical fumes to which plaintiff had developed an adverse physical sensitivity in his sinus passages. Due to this disability, plaintiff is receiving workmen's compensation from the United States Government in the amount of $560.00 every two weeks.
On December 8, 1970, plaintiff applied to the Social Security Administration of The Department of Health, Education and Welfare for disability insurance benefits pursuant to Section 223 of the Social Security Act, as amended, 42 U.S.C. § 423. Plaintiff represented in his application that he suffered from a medical impairment diagnosed as pansinusitis and that he had become unable to work because of this disability on August 14, 1970.
The Administration's Division of Initial Claims for the Bureau of Disability Insurance determined that plaintiff did not meet the disability requirements of the Act and notified plaintiff on September 28, 1971, of its determination. Plaintiff filed a request for reconsideration but the Division of Reconsideration upheld the agency's initial decision after an independent re-evaluation of plaintiff's claim.
On March 16, 1972, plaintiff filed a hearing request with the agency's Bureau of Hearings and Appeals, stating his disagreement with the determination made on his claim; he gave as his reason for such disagreement the existence of additional medical evidence in his case. Plaintiff submitted this evidence and a hearing was held on June 15, 1972. Testimony was taken and all medical reports were admitted into evidence without objection.
The hearing examiner determined that on the basis of the evidence plaintiff was ". . . not entitled to a period of disability under Section 216(i) or to disability insurance benefits under Section 223 of the Social Security Act, as amended." (Tr. 17). The Bureau's Appeals Council upheld the hearing examiner's decision which then became the final decision of the Secretary of Health, Education and Welfare on plaintiff's claim.
Plaintiff timely filed his complaint with this Court seeking review of the final decision of the Secretary.
The Secretary filed his answer as well as a motion for summary judgment.
Title 42, United States Code, Section 405 (g) provides, in pertinent part, as follows:
"As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. 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. * * *."
Substantial evidence has long been defined as ". . . more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971); Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938); Powell v. Richardson, 355 F. Supp. 359 (E.D. Pa. 1973). Another legal formulation used to define substantial evidence is that " '[it] consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance ' of the evidence." Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir. 1971); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966); Powell v. Richardson, supra, 355 F. Supp. at 361.
To qualify for disability insurance benefits an individual must be under a "disability" as defined in the Social Security Act. The term "disability" is defined in Section 223 of the Social Security Act
"(d) (1) * * *