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CANDELARIA v. WEINBERGER

February 6, 1975

RAFAEL CANDELARIA
v.
CASPAR WEINBERGER, SECRETARY OF HEALTH, EDUCATION AND WELFARE



The opinion of the court was delivered by: GORBEY

 GORBEY, J.

 This is an action under § 205(g) of the Social Security Act, as amended, 42 U.S.C.A. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare, denying plaintiff's claim for a period of disability and for disability insurance benefits.

 The administrative record in the case shows that plaintiff filed an application for a period of disability and disability insurance benefits on April 14, 1971, alleging that he became disabled and unable to work prior to March, 1970, at the age of 35 (tr. 68-71). A prior application for benefits had been filed on March 29, 1968, in which he alleged disability and inability to work as of January 25, 1965 (tr. 60-63). Plaintiff was successful in this application and a period of disability was established in accordance with the plaintiff's contention as to the date of the beginning of his disability (tr. 124). Subsequently, it was determined initially by the Bureau of Disability Insurance of the Social Security Administration the disability ceased as of March, 1970 (tr. 64). Reconsideration of that determination pursuant to plaintiff's request resulted in a finding that the initial determination was correct (tr. 66-67). There was no appeal from this decision. His current application was denied initially and on reconsideration by the Bureau of Disability Insurance (tr. 72-73, 67-77) after evaluation of the evidence by a physician and a disability examiner from the Pennsylvania State Agency (tr. 122-123). The administrative law judge considered the case de novo with plaintiff, his attorney, and a vocational expert present. The determination was made on October 11, 1973 that plaintiff was not disabled (tr. 6-10). This decision was approved by the Appeals Council on January 25, 1974 (tr. 3), the result of which the administrative law judge's decision became the final decision of the Secretary.

 Since the record shows that the plaintiff continued to meet the insured status requirement through March 31, 1975, it appears that the only issue before the court is whether the Secretary's final decision that plaintiff is not entitled to disability insurance benefits or a period of disability is supported by substantial evidence.

 The scope of judicial review is determined by Section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), which states:

 
"The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ."

 A multitude of cases establish that: "substantial evidence is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. 'It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion . . .'" NLRB v. COLUMBIAN ENAMALING & STAMPING CO., 306 U.S. 292, 300, 83 L. Ed. 660, 59 S. Ct. 501 (1939); LARGE v. COHEN, 296 F. Supp. 255 (W.D. Va. 1969); WALTERS v. GARDNER, 397 F.2d 89 (6th Cir. 1968); GINSBERG v. RICHARDSON, 436 F.2d 1146 (3d Cir. 1971); LAWS v. CELEBREZZE, 368 F.2d 640 (4th Cir. 1966); RIVAS v. WEINBERGER, 475 F.2d 255 (5th Cir. 1972).

 "Courts may not resolve conflicts in the evidence or decide questions of credibility ". MOON v. CELEBREZZE, 340 F.2d 926 (7th Cir. 1965). It is for the Secretary and his examiner, as the fact finders, to pass upon the credibility of the witnesses and weigh and evaluate their testimony. FLOYD v. FINCH, 441 F.2d 73 (6th Cir. 1971); THOMAS v. CELEBREZZE, 331 F.2d 541 (4th Cir. 1964). The resolution of conflicts in the evidence, including conflicting medical opinions and determinations of the credibility of witnesses, are not for the courts; that resolution is solely within the province of the Secretary as the trier of the facts. MYERS v. RICHARDSON, 471 F.2d 1265 (6th Cir. 1972); RICHARDSON v. PERALES, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971).

 The aforementioned principles of law must be applied in determining whether or not there is "disability" as defined in § 223(d) (1):

 
(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months; . . .
 
(B) . . .
 
(2) For purposes of paragraph (1) (A) --
 
(B) . . .
 
(3) For purposes of this subsection, a 'physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
 
(4) . . .
 
(5) An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence or the existence thereof as the Secretary may require.

 It is to be noted that disability under the Act means the inability to engage in any substantial gainful activity. Consequently, if the evidence indicates that the insured individual is incapacitated from heavy work or work which requires certain kinds of exertion but nevertheless is able to engage light forms of substantial gainful activity, a "disability" within the meaning of the Act has not been established. VALENTI v. SECTY. OF HEW, 350 F. Supp. 1027 (E.D. Pa. 1972); HEMPHILL v. ...


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