Commencing February 1971, Baith saw his personal physician, Dr. Harold Shore, every six or seven weeks. On May 24, 1971, Dr. Shore expressed his opinion to the Social Security Board that claimant was unable to work because of tuberculosis and pneumoconiosis. (T 118). On the same day Dr. Vernon Erk of the Ridge Medical Center also concluded that claimant was unable to work continuously because of silicosis, tuberculosis and related complaints including bronchial spasms and neuritis. (T 119).
On July 22, 1971, Dr. Stephen A. Gabor examined Baith for the Commonwealth of Pennsylvania. From his observations of Baith's chest and respiratory ailments, Dr. Gabor noted that chest expansion was poor, and the upper half of the right chest was severely impaired in resonance while the left was only slightly impaired. Expiration was prolonged in the right upper lobe, and the breath sounded weak and distant at both bases. Throughout the right upper lobe the breath was harsh and numerous varieties of rales were heard -- shrill, moist and wheezing.
In regard to Baith's other ailments, Dr. Gabor reported no changes in the large painful joints, and noted a slight ankle edema and clubbing, or stiffening, of the fingers. He concluded overall that the tuberculosis was well-controlled and that with constant therapy claimant could "soon" undertake some sedentary occupation, although he could never return to carpentry. (T 120). Dr. Gabor also noted that Baith had regained nearly all of the weight lost in 1970.
On February 18, 1972, Dr. Gabor re-examined Baith and concluded that the pulmonary tuberculosis condition had improved. The signs of rales were fewer and no signs of cavitation were found. Chest expansion was still moderately impaired, but emphysema at the bases seemed the same. The exercise phase of the "Master's Two Step" test revealed little discomfort and only slight ankle edema showed. Dr. Gabor noted that Baith's subjective complaints were severe. Claimant described his condition as "worse," saying that he could not walk more than 1/4 mile or climb more than four steps without severe dyspnea or weakness and that he coughed up about three ounces of sputum in the morning and in the evening. He also told Dr. Gabor that his joints were stiffer and he had continuous dull chest pains. Dr. Gabor concluded that the coughing up of sputum, if true, should make Baith sicker than he was, and that "a trial of a sedentary occupation would be worthwhile." (T 134).
On October 5, 1972, Dr. Shore wrote that he was treating claimant for a gastric ulcer, respiratory difficulty, anxiety state, and arthritis. He detailed the medication Baith was taking for each ailment. Dr. Shore stated that although he was not actively treating the tuberculosis, he was in communication with the New Jersey Hospital for Chest Diseases and, based on their reports pertaining to the tuberculosis, Dr. Shore concluded Baith could not "do any work requiring physical activity. I cannot see any improvement taking place in the foreseeable future which would allow this man to work." (T 149-150).
On October 18, 1972, the New Jersey Hospital for Chest Diseases submitted its last report based on its examination of October 17. Chest x-ray revealed no change as compared with July 18, 1972. Forced expiratory spirogram showed Baith's vital capacity was 100% of predicted, and his one second expiratory volume was 60% of vital capacity. (T 154).
The final piece of medical evidence was a letter submitted by Dr. Shore on April 21, 1973. Dr. Shore stated his conclusion that Baith was completely and permanently disabled. He summarized the chest and respiratory ailments, and noted the severe dyspnea on less than ordinary exertion and the need to lie down three or four times daily. Dr. Shore also reported that Baith did not sleep well. (T 161). This letter was submitted after the decision by the Administrative Law Judge, but it was considered by the Appeals Council, (T 5), and is therefore treated as part of the record. Accord, DePaepe v. Richardson, 464 F.2d 92, 100 n. 2 (5th Cir. 1972).
At the hearing, Baith testified that his activity since 1970 has consisted of caring for his pet dogs, raising chickens, doing limited household chores, and lying down to rest three or four times a day. (T 47-49). He testified further that he sleeps only 2 1/2 to 3 hours a night because of his inability to breathe in a prone position, and that he must leave bed nightly to cough up phlegm. (T 154). He said he has been taking much medication, 400 mg of Isoniazid daily as well as other assorted pills to alleviate pains in his chest and head (T 51), and for anxiety and ulcer. Notwithstanding all the medication, he stated that his "chest always hurts, just like somebody's sitting on it all of the time." (T 51). He also testified that during the seven minute walk from the train station to the Administrative Law Judge's office, the weakness in his hip and shortness of breath required him to stop several times. (T60-61).
There was testimony by vocational expert Dr. Morris Rubin, a counselling psychologist, as to the type of substantial gainful employment which exists in the national economy for a person in claimant's condition. The Administrative Law Judge restricted the vocational expert to the physical findings of Dr. Gabor's second report and asked whether a person so described could be gainfully employed. (T 64). Dr. Rubin expressed the opinion that, given those assumptions and claimant's age, education and occupational history, he could perform various bench assembling and inspecting jobs in manufacturing, work as a retail sales clerk in hardware, lumber or paint departments, or serve as an estimator for building contractors, (T 65), and that such jobs were numerous in the Philadelphia area. Dr. Rubin did not change his opinion when asked to add to the assumptions Baith's complaints of gastric ulcer, nervous condition, headaches and the New Jersey Chest Clinic report of October 17, 1972. Dr. Rubin described all the jobs as sedentary to moderate and testified that such jobs would not overtax claimant's condition. (T 67). However, when there was added the assumption that Baith slept only 2 1/2 to 3 hours a night, Rubin concluded he would have "difficulty performing productive responsibilities in any kind of work situation on a sustained competitive basis." (T 67-68). The vocational expert also acknowledged that if the clubbing of the fingers was severe, claimant would be precluded from bench assembly work, but if the clubbing were mild, bench assembly work might prove therapeutic. (T 71). He also stated that the shortness of breath could conceivably have an adverse effect on Baith's ability to work, but given the ventilation and cleanliness of most places of employment, it would not ordinarily be a drawback. (T 74).
Following the vocational expert's testimony, and in response thereto, Baith testified that he had never worked in a retail store; that he had worked only as a laborer; and that even when he was self-employed as a carpenter, he could do the job only if it was laid out for him or if the lumber company told him what he needed. (T 78).
On this record, the Appeals Council upheld the Administrative Law Judge's decision that Baith was disabled prior to February 1972, but not thereafter. While resolving conflicts in the evidence is the responsibility of the Secretary, it is the Court's function to decide whether the Secretary's determination is supported by substantial evidence in light of the record as a whole. " 'Substantial' means just that and is not the equivalent of a "scintilla." Hess v. Secretary of H.E.W., 497 F.2d 837, 838 (3d Cir. 1974); Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir.), cert. denied, 402 U.S. 976, 29 L. Ed. 2d 142, 91 S. Ct. 1680 (1971). The Court must also review the Secretary's decision for possible errors in application of the relevant legal standards.
That claimant has tuberculosis is undisputed. Because of that condition, the Administrative Law Judge concluded that he was "disabled" from June 1970 to February 1972, but the record supports the conclusion that Baith's tuberculosis improved substantially after the first year. By May 1971, the New Jersey Hospital for Chest Diseases, which followed his condition constantly from the onset of the disease, noted that Baith's tuberculosis had been inactive for five months. Examining claimant for the first time in July 1971, Dr. Gabor observed that his tuberculosis was "well-controlled." He noted further improvement in reporting the examination of February 18, 1972. Social Security regulations provide:
"Pulmonary tuberculosis is a communicable disease and disability is determined primarily on the basis of activity of the disease. Individuals with 'inactive' or "quiescent" disease are not considered to be under a disability on the basis of tuberculosis, whereas individuals with 'active' tuberculosis are considered to be under a disability."