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 could walk only about one block on level ground; if there was any kind of grade, he could not make it (Tr. 73).
Plaintiff testified that he had pain along the whole length of his back; since his hemorrhoidectomy, the pain ran from his spine to the base of his skull (Tr. 71). The back pain gives him a headache. If he stands for about 10 minutes, he "minds it" in his spine and legs (Tr. 73). He can't bend or kneel the way he should; and if he goes to bed, he has "a heck of a time getting up". When he elevates his arms, he gets pain. When he puts his socks and shoes on, he has difficulty bending over (Tr. 77). Plaintiff does not attend church because he cannot sit that long. He has a hard, dry cough, mostly at night, but also during the day (Tr. 71-2). Finally, plaintiff stated that he has difficulty sleeping some nights because of his back condition (Tr. 77) and his coughing and shortness of breath (Tr. 78).
A vocational expert, Mr. Bernard Orr, testified at the hearing before the Administrative Law Judge. Mr. Orr defined sedentary work activity as work which is done principally seated, and occasionally standing, which involves lifting a maximum of 10 pounds. He defined light work activity as work which may be done either sitting, standing or walking; which may involve lifting a maximum of 20 pounds and frequently involves lifting or carrying objects up to 10 pounds; and, which may require the pushing or pulling of hand-arm controls to a significant degree (Tr. 88).
During the questioning of Mr. Orr by the Administrative Law Judge, he was told to assume that plaintiff could do sedentary work, then he was asked whether any jobs existed for which he believed plaintiff was vocationally qualified. Mr. Orr testified that under the assumption that plaintiff could do sedentary work, there were jobs in the region that he might qualify for (Tr. 88-9). These jobs would be such jobs as an inspector or packer of clothing parts, a doorman in a movie theater or amusement center, a cashier in a restaurant, a security guard at a portal, a candy packer or candy wrapper, an inspector or gauger in a machine shop, a telephone bill collector, a truck or taxi dispatcher, or a shoe and shoe component inspector. Mr. Orr was then told to assume that plaintiff could do light work, and asked whether any jobs existed for which plaintiff was vocationally qualified. Mr. Orr testified that under the assumption that plaintiff could do light work, one would then assume he could do all the aforementioned sedentary jobs, plus such jobs as a retail salesman of hardware or paint, a drill press operator, an industrial guard, or a punch press operator (Tr. 92). Finally, Mr. Orr was told to assume all of the limitations, restrictions and pain testified to by plaintiff and Dr. Tomlin, and asked whether any jobs existed for which plaintiff was vocationally qualified. Mr. Orr responded with the following testimony:
There would no a -- no work that I could think of, if you accept the limitations, restrictions and pain as described by Mr. Hafner and by Dr. Tomlin because a man in constant pain and with his lack of physical strength a -- as he testified, could not work (Tr. 93).
Finally, at the Government's request, Dr. Norman H. Wall, an internist, examined plaintiff on July 16, 1973. Plaintiff had a blood pressure of 220/130, Grade I arteriolosclerosis, occasional rhonchi in the lungs and obesity (Tr. 189). A chest x-ray showed evidence of emphysema, some pulmonary fibrosis, and very slight nodule infiltrations at both bases (Tr. 190). The chest x-ray also showed evidence of osteoarthritis in the thoracic spine. The results of plaintiff's pulmonary function tests were markedly decreased (Tr. 190). These tests showed 36 and 40 percent of predicted maximum breathing capacity before and after bronchodilator, respectively. They showed 43 and 49 percent of predicted vital capacity before and after bronchodilator, respectively. And they showed a one second forced expiratory volume of 41 and 45 percent of the predicted value before and after bronchodilator, respectively (Tr. 195, 198, 201, 204). Dr. Wall concluded in his report that plaintiff "has a very significant pulmonary insufficiency"; "is strictly limited now from doing any type of exertive activity such as climbing stairs frequently or climbing a hill, carrying any bundles weighing more than 25 lbs."; and he doubted that "any type of therapy will improve his pulmonary function substantially to get him back at work" (Tr. 190). Dr. Wall's final diagnoses were: (1) pneumoconiosis with chronic obstructive lung disease, (2) hypertension, (3) obesity, and (4) osteoarthritis.
In his brief, plaintiff asks this Court to address the following two issues: (1) Did the Appeals Council err in ignoring plaintiff's subjective complaints in its evaluation of the evidence, and (2) Is the denial of disability benefits supported by substantial evidence?
With respect to the first issue, we find no error in the decision of the Appeals Council. Plaintiff is correct in his observation that that portion of the decision of the Appeals Council captioned "Evaluation of the Evidence" does not mention the plaintiff's subjective complaints. However, the omission of any reference to plaintiff's subjective complaints by the Appeals Council does not necessarily mean that the Appeals Council completely disregarded the subjective testimony of plaintiff. We find it significant that the decision of the Appeals Council opens with the following statement:
The administrative law judge's statements in his decision as to the pertinent provisions of the Social Security Act and the evidentiary facts which were before him, are incorporated herein by reference.
The decision of the Administrative Law Judge summarized and took into account plaintiff's subjective complaints, and plaintiff does not contend otherwise. Though the decision of the Appeals Council omits any reference to plaintiff's subjective complaints, we do not find this omission in the particular case now before us to be reversible error, since the decision of the Appeals Council incorporates the evidentiary facts before the Administrative Law Judge. Having addressed the first issue raised by plaintiff, we proceed to a discussion of his second question.
Plaintiff has the burden of proving that he has a disability within the meaning of the Social Security Act. 42 U.S.C. § 423(d) (5).
Establishing a disability is a two-step process. First, plaintiff must prove that he has a 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. Second, plaintiff must prove that the impairment renders him unable to engage in any substantial gainful employment. Baker v. Gardner, 362 F.2d 864 (3d Cir. 1966); Bujnovsky v. Celebrezze, 343 F.2d 868 (3d Cir. 1965).
In the instant case, plaintiff has clearly met his burden of proving that he has medically determinable physical impairments. The evidence is undisputed and overwhelming that plaintiff has been suffering from physical impairments variously diagnosed as being: (1) anthracosilicosis, pneumoconiosis, emphysema, chronic bronchitis or paroxysmal bronchial asthma, (2) hypertrophic arthritis of the lumbar spine or osteoarthritis of the spine, and (3) hypertension or arteriosclerosis. We note that there is no disagreement between plaintiff's or the Government's physicians as to the existence of physical impairments. The disagreement, if any, between the physicians center mainly on the degree of intensity of plaintiff's physical impairments.
Though the Secretary concedes that plaintiff suffers from various physical impairments, nevertheless, the Secretary contends that plaintiff's impairments are not of such a severity as to render him unable to engage in any substantial gainful employment. More specifically, the Appeals Council found that plaintiff "retains the functional capacity to perform substantial gainful activity in the light and sedentary jobs enumerated by the vocational expert" (Tr. 9).
We find that plaintiff has also met his burden of proving that his physical impairments rendered him unable to engage in any substantial gainful employment, and there is not substantial evidence to support the Secretary's finding to the contrary. Dr. Schmidt, who treated plaintiff from 1967 to 1970, diagnosed plaintiff as being totally and permanently disabled. Dr. Joseph Tomlin, who has been treating plaintiff since 1970, testified that in his professional opinion plaintiff was totally disabled as of January 23, 1970; that plaintiff's condition has grown worse since that time; that plaintiff is unable to engage in substantial employment; and, that plaintiff cannot do, what by definition would be, light or sedentary work. Nevertheless, the Appeals Council contends that plaintiff can do light or sedentary work. Their determination in this regard rests solely upon their interpretation of the testimony of the vocational expert, Mr. Orr, and the report of the internist, Dr. Wall.
In its summary of the vocational evidence, the Appeals Council states the following:
A vocational expert who testified at the hearing stated that in view of the claimant's age, education, vocational background and impairments and given the limitations imposed by light to sedentary work activity, he retained the functional capacity to perform such work as a clothing inspector or packager, doorman in a movie theater, cashier in a restaurant, . . . (Tr. 7).