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October 9, 1975


The opinion of the court was delivered by: GREEN


 Presently pending before the Court are crossmotions for summary judgment on an appeal, pursuant to § 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), of a final decision of the Secretary of Health, Education and Welfare denying plaintiff disability insurance benefits under the Act. The only issue before the Court is whether the Secretary's final decision that plaintiff is not entitled to disability insurance benefits is supported by substantial evidence. "Substantial evidence" has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion". Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Ginsburg v. Richardson, 436 F.2d 1146 (3d Cir. 1971), cert. den. 402 U.S. 976, 91 S. Ct. 1680, 29 L. Ed. 2d 142, rehearing den., 403 U.S. 912, 91 S. Ct. 2213, 29 L. Ed. 2d 690 (1971). Further, as our Third Circuit has recently cautioned, "'substantial' means just that and is not the equivalent of a 'scintilla'". Hess v. Secretary of HEW, 497 F.2d 837 (3d Cir. 1974). Since the scope for reviewing the Secretary's decision is narrowly prescribed, the Court cannot try the matter de novo, Toborowski v. Finch, 363 F. Supp. 717 (E.D. Pa. 1973), but rather must examine the entire record to see if the ruling is supported by substantial evidence. After a careful review of the record and briefs, and for the reasons hereinafter set forth, we grant the motion of plaintiff and deny the motion of defendant.

 Plaintiff initially filed for disability benefits on February 9, 1971, alleging that he became unable to work on January 23, 1970 due to anthracosilicosis, emphysema and an arthritic spine. The Secretary initially denied his claim on June 8, 1971. On June 22, 1971, plaintiff filed a request for reconsideration which the Secretary denied on November 3, 1971. Plaintiff thereafter requested a hearing before an Administrative Law Judge; said hearing was held on December 6, 1972. In a decision of March 14, 1973, the Administrative Law Judge found that plaintiff was not entitled to a period of disability or to disability insurance benefits under the applicable provisions of the Social Security Act. Plaintiff appealed this decision to the Appeals Council, which, subsequent to obtaining additional medical evidence, on March 6, 1974, supplemented and affirmed the Administrative Law Judge's decision. The decision of the Appeals Council thus became the final decision of the Secretary and it is now before us on plaintiff's appeal.


 The record reveals that plaintiff was born on May 7, 1919. After leaving high school during the tenth grade, he worked about 2 years cleaning automobiles on a used car lot. Prior to entering the military service, he pumped gas at a gas station. While in the armed forces, plaintiff drove a truck and did minor automotive tune-up work; however, he did not attend any military service schools and has not had any vocational training. During his military service in New Guinea plaintiff sustained a back injury while unloading heavy timbers from a truck. After he left the armed forces in 1945, plaintiff drove a truck around a strip mine operation. After driving a truck for approximately four years, he had to quit that kind of work because it affected his back. Plaintiff's next and last job was as an oiler of strip mining machinery. While working as an oiler, plaintiff experienced shortness of breath and he consulted his then family physician, Dr. William A. Schmidt. Dr. Schmidt informed plaintiff that he had advanced anthracosilicosis, emphysema and arthritis of the spine. Plaintiff continued to work until January 23, 1970, when he quit on the suggestion of Dr. Schmidt.


 An examination of the record also reveals the following medical evidence of plaintiff's physical impairments. Dr. William A. Schmidt, plaintiff's former family physician, reported in February 1971 that he treated him from 1967 to 1970. Dr. Schmidt's physical findings included restricted expansion of chest, prolonged expiration, and harsh and wheezy type respirations (Tr. 139). An x-ray taken at Dr. Schmidt's request on February 17, 1971 showed that plaintiff had a minimal, generalized emphysema with fibrotic changes throughout both lungs, suggesting an early stage two anthracosilicosis, and that plaintiff had hypertrophic, arthritic change throughout the thoracic spine (Tr. 141). Dr. Schmidt diagnosed plaintiff to be totally and permanently disabled due to advanced anthracosilicosis (second stage) and emphysema (Tr. 140).

 At the request of the Government, plaintiff was examined by Dr. Stanley Stanulonis, an internist, on April 8, 1971. Dr. Stanulonis reported that plaintiff was dyspneic while at rest and also became dyspneic after a Single Masters Exercise Test; that he had Grade II retinal arteriole sclerosis; that he had prolonged wheezy expiration while recumbent; that bending produced pain in his back; and that his blood pressure before exercise was 190/100 and immediately after exercise 200/120 (Tr.144). Pulmonary function studies before and after Isuprel revealed 43 percent of the predicted maximum voluntary ventilation; and 69 and 79 percent of the predicted vital capacity before and after Isuprel, respectively (Tr. 146-7). Plaintiff's chest x-ray revealed scattered small nodular opacities throughout both lungs, compatible with an early pneumoconiosis. An x-ray of the lumbar spine showed hypertrophic, arthritic changes primarily in the form of anterior spurring, and a slightly narrowed L-5, S-1 interspace (Tr. 148-9, 180). Dr. Stanulonis' overall impressions of plaintiff were: (1) pulmonary insufficiency due to anthracosilicosis with emphysema, chronic bronchitis and paroxysmal bronchial asthma; (2) essential hypertension (moderate); and (3) hypertrophic arthritis of the lumbar spine, question of disc injury (Tr. 145).

 Plaintiff was examined again at the request of the Government by Dr. Leo J. Corazza, an internist, on October 5, 1971. His physical examination revealed a blood pressure of 180/110, arteriosclerosis of the arterioles of the eyes, and clubbing and breaking of the nail beds without cyanosis (Tr. 151). A chest x-ray demonstrated a pneumoconiosis and showed evidence of arthritis of the spine. Subsequent to an arterial study, Dr. Corazza's impressions of plaintiff were: (1) pneumoconiosis; (2) heart disease, hypertensive, arteriosclerotic, coronary artery disease, N.S.R., II-B; and (3) osteoarthritis of the spine (Tr. 152).

 Plaintiff underwent an internal and external hemorrhoidectomy while hospitalized at the Ashland State General Hospital from April 24, 1972 to May 1, 1972 (Tr. 166-77). His laboratory studies were within normal limits (Tr. 167). His blood pressure was 160/120 and his electrocardiogram showed normal sinus rhythm and tracing (Tr. 176). A chest x-ray showed a generalized emphysema, with basilar nodular opacification and hypertrophic arthritic changes visible in the thoracic spine (Tr. 172).

 Plaintiff, at the request of his family physician, Dr. Tomlin, underwent a pulmonary function study conducted at the Locust Mountain State Hospital on June 9, 1972. The study showed a vital capacity of 54 percent of the predicted, a one second forced expiratory volume (FEV1) of 33 percent of vital capacity, and a maximum breathing capacity (MBC) of 32 percent of the predicted (Tr. 186). X-rays taken at Locust Mountain State Hospital on November 8, 1972 showed minimal sclerosis in each acetabulum of the pelvis suggesting early arthritis; hypertrophic, arthritic change throughout the lumbar spine; a narrowing of the L-5, S-1 intervertebral disc space raising the question of disc disease at this level; arteriosclerotic changes in the aorta and iliac vessels; and, very minimal hypertrophic change in the cervical spine (Tr. 178-9).

 Dr. Joseph Tomlin, who has been treating plaintiff since January 23, 1970, testified at the hearing before the Administrative Law Judge. Dr. Tomlin stated that at the time of his first examination, plaintiff complained of low back pain and shortness of breath on exertion such as walking about one block or climbing one flight of stairs. A physical examination disclosed a blood pressure of 190/110; hyperresonant breath sounds in the chest, prolonged expiratory phase; difficulty in straightening his arms up; paravertebral muscle spasms, tenderness, stiffness, pain with hyperextension of the spine (Tr. 45-6). The appearance of plaintiff's fingernail beds indicated partial deoxygenation on a chronic basis. Dr. Tomlin stated that a hemoglobin test done on July 24, 1972 provided confirmatory evidence of deoxygenation and poor pulmonary ventilation, secondary to his generalized emphysema (Tr. 46-7). Dr. Tomlin also referred in his testimony to the x-rays mentioned above, that were taken at Locust Mountain State Hospital, which showed hypertrophic arthritic changes in the lumbar spine, early arthritis in the hip, and a narrowing of the intervertebral space between L-5 and S-1. Dr. Tomlin stated that one of the x-rays showed significant arteriosclerotic changes in the iliac and femoral vessels which one would not normally expect to find in a man of age 53. Dr. Tomlin further stated that plaintiff's cholesterol level of 350 during his admission at Ashland State General Hospital would "fit in" with the diagnoses of arteriosclerotic heart disease and coronary artery disease reported by Dr. Stanulonis (Tr. 47).

 Dr. Tomlin stated that he was treating plaintiff with various medications for hypertension, back pain, shortness of breath and wheezing. More specifically, Dr. Tomlin stated that through the use of 3 pills of Aldoril a day, he had been able to reduce plaintiff's blood pressure from 190/100 to only 150/110, "which is not good control" (Tr. 49, 51). With respect to plaintiff's hypertension problem, Dr. Tomlin indicated that it was probably not possible to achieve better control of the problem through medication because, when he attempted to up plaintiff's dosage to a fourth blood pressure pill, he got an adverse reaction (Tr. 60-1). Furthermore, Dr. Tomlin stated that plaintiff's arthritic spine condition had gotten progressively worse, that the arthritis of the hip will get worse with time, and that silicosis and emphysema usually get slowly and progressively worse (Tr. 50-1).

 Dr. Tomlin testified that it was his opinion that plaintiff was completely and totally disabled as of January 23, 1970, and could not have engaged in substantial employment (Tr. 51). He also stated that plaintiff's condition had grown worse since January 23, 1970 (Tr. 52); that the findings of Dr. Stanulonis, who examined plaintiff on April 8, 1971, indicated that plaintiff could not engage in any gainful employment at that time (Tr. 52-3); and that in view of the findings of Dr. Stanulonis, Dr. Corazza and himself during the time period between January 23, 1970 and October 5, 1971, plaintiff could not engage in any light work of any kind (Tr. 52-4).

 Under questioning by the Administrative Law Judge, Dr. Tomlin testified that work in a seated position, requiring occasional lifting of 10 to 20 pounds, would be medically contraindicated, because, whether sitting, standing or walking, the pain in his lower back would require him to change his position frequently (Tr. 56-7); and because if he had to work at a normal, working rate, he would be short of breath (Tr. 57). Dr. Tomlin further testified that even if plaintiff had the option either to sit or stand, and did not have to lift 10 pounds more than 3 or 4 times a day, his continuous and chronic back pain would not permit him to work on a sustained basis throughout a normal eight-hour work day (Tr. 57-8). And Dr. Tomlin testified that if a job required plaintiff to stand throughout most of the day, lifting weights of 10 or possibly 20 pounds not more than 3 or 4 times a day, his back condition, silicosis and emphysema would cause him to be unable to perform that job (Tr. 58-9).

 Plaintiff, William F. Hafner, also testified at the hearing before the Administrative Law Judge. Basically, plaintiff delineated his subjective complaints. For instance, plaintiff stated that he stays in the house all winter long because he is susceptible to colds. He said he could not do any work about the house; that his wife took care of the coal furnace, took out the ashes, shoveled the snow, and cut the grass. Plaintiff testified that he ...

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