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June 27, 1974

CASPER WEINBERGER, Secretary of Health, Education and Welfare

The opinion of the court was delivered by: LUONGO

Arthur Baith (claimant) instituted this action under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision by the Secretary of Health, Education and Welfare concerning his application for disability benefits under §§ 216(i) and 223 of the Social Security Act, as amended. Claimant and the Secretary have filed motions for summary judgment.

 On July 9, 1970, Baith, suffering from assorted ailments, most seriously pulmonary tuberculosis and silicosis, applied to the Social Security Administration for disability benefits. On December 9, he was notified that his claim had been rejected, and after request for reconsideration, the disallowance was reaffirmed by letter dated March 28, 1972. Claimant sought and was granted a hearing before an Administrative Law Judge in accordance with § 205(b) of the Social Security Act. The hearing took place on December 11, 1972, and, in a written opinion dated March 19, 1973, as amended March 27, 1973, the Administrative Law Judge concluded that claimant was "disabled," as defined by the Social Security Act from June 1970 to February 1972 and was entitled to receive disability benefits for the period from December 1970 to April 1972, *fn1" but that he was no longer so disabled after February 1972. On July 16, 1973 the Appeals Council affirmed. This became the final decision of the Secretary. Claimant appealed by filing the instant suit.

 In reviewing the Secretary's decision, the Court's role is narrowly circumscribed. The Secretary's decision must stand if it is supported by "substantial evidence." 42 U.S.C. § 405(g). "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, 16 L. Ed. 2d 131, 86 S. Ct. 1018 (1966). In deciding whether the Secretary's decision is supported by substantial evidence, the Court must look at the record as a whole. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971); Blanks v. Richardson, 439 F.2d 1158 (5th Cir. 1971).

 The test for disability is two-pronged: (1) a determination of the extent of the physical or mental impairment and (2) a determination whether that impairment results in an inability to engage in substantial gainful activity. Stancavage v. Celebrezze, 323 F.2d 373 (3d Cir. 1963); Janek v. Celebrezze, 336 F.2d 828 (3d Cir. 1964). There are four elements of proof to be considered in making a finding as to claimant's ability or inability to engage in any substantial activity: (1) medical data and findings, (2) expert medical opinions, (3) subjective complaints and (4) claimant's age, educational background and work history. Dillon v. Celebrezze, 345 F.2d 753, 755 (4th Cir. 1965).

 With these legal standards in mind, the record will be summarized. Baith, 57 years old at the time of the hearing, is now 59. He left school in the eighth grade. For most of his life (1933-1962) he was a coal miner, although he did not work in the mines from February 1957 to April 1960 due to severe leg and back injuries. From 1960 to 1965 he was self-employed, at first part-time and then full-time, as a carpenter and painter. From 1965 to 1968 he was employed as a carpenter by a general contractor. From 1968 to 1970 he worked as a maintenance man for a metals company doing carpentry, plumbing and painting, as well as custodial work. (T 44-45; 155). *fn2" Except for a brief attempt at carpentry in 1971, he has not worked since 1970 because of the illnesses at issue in this case.

 In May 1965, Baith was hospitalized briefly for heart and lung problems. (T 156). In 1967 he began paying regular visits to the State of New Jersey Hospital for Chest Diseases because he was tiring easily on exertion, feeling steady pressure across his chest, and coughing with increasing severity. (T 120). His respiratory problems at that time were undoubtedly caused by silicosis for which he began to receive black lung benefits in April 1970. (T 158). Around that time he also began to suffer from pain in most of his large joints and swelling of the ankles. (T 120). Although he continued working, his condition "deteriorated steadily." (T 120). By late 1969, Baith was suffering serious chest pains, fatigue and shortness of breath. In the first few months of 1970, he lost nearly 50 pounds while continuing to work as best he could. On June 2, 1970, a chest x-ray revealed changes in the right upper lobe area. Subsequently, a tuberculin test proved positive, and his ailment was diagnosed as pulmonary tuberculosis. He was an in-patient in the sanitorium from June 15, 1970 to August 13, 1970. At the time of his discharge, his x-ray showed slight clearing, his condition was somewhat improved, (T 114-115), and the discharging doctor, Mario Grosso, opined that Baith could return to full-time employment.

 After a brief recuperative period at home, claimant attempted to return to work for the metals company in October 1970, first working two hour days and then half days. He was unable to do the required work and he was laid off in November 1970. (T 59).

 From November 1970 through 1972, claimant was examined and treated by a series of doctors for his tuberculosis and other ailments, including a gastric ulcer, emphysema and an anxiety condition. Medical evidence and the diagnoses of the various physicians will be summarized chronologically.

 On February 2, 1971, claimant was examined by Dr. John P. Galgon, who specializes in pulmonary diseases and pulmonary function testing. A chest x-ray revealed that Baith's heart and diaphragm appeared normal, but that significant infiltrative density was present in the right upper lung field and left apex. Dr. Galgon also observed that small rounded densities were present throughout the lung fields. In his view, these symptoms might have been from silicosis alone but could also represent active tuberculosis. (T 110).

 On May 3, 1971, Dr. Peter Theodos reported on Baith's respiratory capacity from tests performed on April 23, 1971. He concluded that claimant's forced vital capacity was normal, but that forced expiratory volumes and maximum voluntary ventilation were moderately reduced, and there was a moderate degree of obstructive ventilatory impairment. (T 111).

 On May 28, 1971, the New Jersey Hospital for Chest Diseases, where Baith was being examined regularly, reported on a series of checkups, the most recent of which had taken place on May 4, 1971. At that time, Baith's chest x-ray showed further clearing and his tuberculosis was diagnosed as inactive for five months. The report also noted that Baith had complained of chest pains and had on his own initiative discontinued PAS therapy because of gastric pain. (T 117).

 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. ...

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