The opinion of the court was delivered by: FOGEL
Before us for determination are cross motions for summary judgment that have been filed by the parties to this action in which we are asked to review a final decision of the Secretary of Health, Education and Welfare, denying disability benefits under the Social Security Act, as amended, 42 U.S.C. § 301 et seq. The specific provision governing judicial review of decisions of the Secretary in matters of this kind is 42 U.S.C. § 405(g):
(g) Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. . . . The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . . [The] Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or its [ sic ] decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based. Such additional or modified findings of fact and decision shall be reviewable only to the extent provided for review of the original findings of fact and decision.
This particular case was previously before another of my colleagues on this court. Plaintiff first filed his claim for total disability on April 14, 1970. The application was initially denied. On reconsideration it was again refused. Claimant thereafter requested a hearing which was granted pursuant to his request. The evidence adduced at that hearing was considered de novo ; plaintiff, who was represented by counsel, testified, and a vocational expert also gave testimony. On January 26, 1972, Administrative Law Judge Lightfoot rendered his decision in which he found that claimant was not under a disability for the period at issue. The Appeals Council thereafter approved that decision on May 25, 1972, and the Secretary subsequently adopted it as his final decision. Suit in the Eastern District of Pennsylvania was instituted, and resulted in Judge Gorbey's remand of the matter, on May 29, 1973, to the Secretary with directions for further, specific administrative action. The Appeals Council vacated its previous action and sent the case back to an administrative law judge for further proceedings. A supplemental hearing was then held on January 21, 1974, at which plaintiff and his attorney appeared. The claimant gave additional testimony; a neurosurgeon also testified on his behalf, and additional medical records and evaluations were submitted for consideration. The recommendation of the hearing judge, Judge Ennis, was to hold that plaintiff was not under a disability during the applicable period. On July 23, 1974, after considering the comments and exceptions of plaintiff's attorney, the Appeals Council adopted that recommendation, and, accordingly, it became the final decision of the Secretary. Plaintiff now seeks a review of this second determination of the Secretary of Health, Education and Welfare.
In his remand of the matter in the first instance, Judge Gorbey concluded:
In this case there is substantial evidence which would support the plaintiff's assertion that he is presently suffering from disabling pain. He has made similar complaints to physicians in the past and such pain might reasonably be associated with the plaintiff's eye condition. There is also substantial evidence which indicates the absence of disabling headaches at the last time the claimant was eligible for benefits. Claimant's application for disability benefits makes no mention of this condition, nor does the claimant's request for reconsideration, nor is there any reference to this condition in the report of the claimant's disability interview, nor has the plaintiff alluded to this condition in his letter of December 11, 1970. Accordingly, this matter should be remanded to the Secretary. After considering the plaintiff's assertions of pain and all other credible evidence, the Secretary should determine: (1) whether the plaintiff is suffering from headaches and (2) whether such headaches either alone or in combination with the blindness in one eye are sufficiently severe to render the plaintiff disabled.
Pope v. Richardson, Civil No. 72-1460 at 6 (E.D. Pa., May 29, 1973) (emphasis added; footnotes omitted). This conclusion came after an exhaustive review of the record and applicable case law. The vocational expert had been asked two hypothetical questions. The first question, which recited plaintiff's physical ailments and condition, sought to elicit if, in fact, jobs were available in the region, which the hypothesized claimant could perform, positing his specified physical condition, age, background, and education. The answer was in the affirmative. The second question considered the same material "and in addition, assumed that the claimant suffered severe, periodic headaches on a regular basis with extreme pain therefrom." Id. at 3-4. The answer to the second question was that the claimant could not, under such circumstances, find gainful employment. Judge Gorbey therefore determined that the only possible basis for the hearing examiner's denial of benefits was a finding that the plaintiff "was not suffering from 'severe, periodic headaches on a regular basis' or 'extreme pain'", (Id. at 4), although there was not an explicit finding to this effect. Further, the hearing examiner made only two oblique references to the subjective complaints of plaintiff:
"There is no medical diagnosis or medical documentation of the fact that the claimant suffered headaches with the regularity that he alleges prior to December 31, 1967."
"The allegation of headaches is not substantiated by medical evidence."
Id. Both of these statements implied that the hearing examiner had applied an incorrect standard of law in evaluating the evidence, since subjective pain must be considered by the examiner in arriving at a determination of disability; Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974), cert. denied, 420 U.S. 931, 95 S. Ct. 1133, 43 L. Ed. 2d 403 (1975); Dillon v. Celebrezze, 345 F.2d 753, 755 (4th Cir. 1965); moreover, such subjective pain need not be supported by any clinical findings, provided the requisite proof burden is satisfied. Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir. 1971). Accordingly, the matter was remanded.
This history is pertinent to a delineation of our role in this case at this juncture. Title 42 U.S.C. § 405(g) requires us to apply the same "substantial evidence" test as our brother judge applied in his review. "'[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. ...