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July 25, 1975

CASPAR W. WEINBERGER, Secretary of Health, Education and Welfare

Fogel, J.

The opinion of the court was delivered by: FOGEL


 Before us is defendant's motion for summary judgment in the above-captioned case, which seeks review of a final decision of the Secretary of Health, Education and Welfare terminating the plaintiff's period of disability for benefits under the Social Security Act, 42 U.S.C. § 405(g).

 The claimant filed for disability benefits on July 13, 1972, alleging that he became disabled following an automobile accident on January 4, 1971. He was awarded a closed period of disability from January 4, 1971, until May 11, 1972. Reconsideration of this decision was requested on January 17, 1973. The request was granted, and the prior determination was affirmed; notification of the result was rendered on April 11, 1973. The claimant, who disagreed with the result, sought a hearing before an Administrative Law Judge, pursuant to the provisions of 42 U.S.C. § 405(b); the hearing was held on September 20, 1973, in Philadelphia. Testimony was presented on behalf of the claimant, through his counsel, and the agency adduced testimony from an impartial Vocational Expert retained by the Bureau of Hearings and Appeals. The Administrative Law Judge adjudicated the matter affirming the previous termination of benefits and making the additional determination that the claimant was not then entitled to benefits, on February 27, 1974. A request for review of this decision was filed by Mr. Wilson's attorney on February 28, 1974. By letter on May 24, 1974, the Appeals Council notified the claimant that it had affirmed the decision of the Administrative Law Judge. A timely complaint was thereafter filed with this Court, pursuant to 42 U.S.C. § 405(g).

 As documentation for this claim, we have the transcript of the hearing held before the Administrative Law Judge, his opinion, and all the medical records and other materials which have been given consideration in various determinations of this matter. The scope of our review is governed by 42 U.S.C. § 405(g):

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

 (Emphasis added). "'[Substantial'] means just that and is not the equivalent of a 'scintilla.'" Hess v. Secretary, 497 F.2d 837, 838 (3d Cir. 1974). Substantial evidence "'must do more than create a suspicion of the existence of the fact to be established.'" Rivas v. Weinberger, 475 F.2d 255, 257 (5th Cir. 1973). "It means 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, 83 L. Ed. 126, 59 S. Ct. 206 (1938). However, I am not to engage in a trial de novo. Toborowski v. Finch, 363 F. Supp. 717, 718 (E.D. Pa. 1973). Thus our mandate is to look at the record as a whole and then to determine whether or not there is substantial evidence to support the Secretary's decision. "If there is only a slight preponderance of the evidence on one side or the other, the Secretary's finding should be affirmed." Id. at 719.

 The test for disability involves two major factors: (1) a determination of the extent of the physical or mental impairment, and (2) a determination as to whether that impairment results in an inability to engage in any substantial gainful activity. Stancavage v. Celebrezze, 323 F.2d 373, 377 (3d Cir. 1963). Within this framework four elements of proof must be considered before deciding whether a claimant is disabled within the meaning of the Social Security Act: (a) medical data and findings, (b) expert medical opinions, (c) subjective complaints, and (d) claimant's age, educational background, and work history. Dillon v. Celebrezze, 345 F.2d 753, 755 (4th Cir. 1965); Toborowski v. Finch, supra, at 719.

 In his opinion, the Administrative Law Judge said:

From his testimony and symptoms presented upon examination, it is apparent that claimant does experience pain in the knees, low back and legs. Pain is indeed an important factor in causing functional loss. But functional loss should be shown by relevant abnormal findings as reflected in detailed descriptions of ranges of motion, status of musculature and any sensory, reflex or circulatory deficits and pertinent laboratory findings.

 (T.R. 13). We do not see in this statement any direct finding as to the effect of the subjective pain of claimant on his ability to work. This is critical, since subjective factors must be treated in the determination of ability to work. Dillon v. Celebrezze, supra. Also, the two hypothetical questions put by the Administrative Law Judge to the vocational expert covered essentially identical physical conditions, but one is hypothesized a moderate and non-continuous level of pain, while the other assumed the level of pain described by claimant. With respect to the first hypothesis, the vocational expert testified that there were many entry-level, moderately skilled, sedentary jobs which the hypothesized claimant could perform. In response to the second question, he stated:

No, there -- given that assumption, he can -- there is -- do no job he can perform to the extent and frequency of his pain and the other condition he would be a danger to himself and to others on the job. . . . [ sic ]

 (T.R. 60). Since the answers to these hypothetical questions were the only evidence presented to the hearing judge relative to the ability of the claimant to perform work, the pain factor becomes critical in determining whether there was substantial evidence to support the finding of the judge.

 We may not speculate about the Administrative Judge's opinion of the credibility of claimant's accounts of pain and suffering. The law in this Circuit clearly imposes a duty upon the hearing judge to ...

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