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November 11, 1975

CASPAR WEINBERGER, Individually and as Secretary of Health, Education and Welfare

The opinion of the court was delivered by: GORBEY


 The issue is whether the Secretary's final decision that plaintiff is not entitled to disability insurance benefits for a period of disability is supported by substantial evidence. Each of the parties has filed a motion for summary judgment.

 After due notice, a hearing was held in Allentown, Pennsylvania, on January 31, 1974, and the claimant, not represented by counsel, appeared personally and testified, as did the Vocational Expert, Dr. Albert L. Billig. In her application for benefits, plaintiff stated that she was born on February 24, 1926, had completed the eighth grade, and was last employed as a cleaning woman. She has also worked as a waitress and factory employee. She claims that she became unable to work in December, 1971, because of "arthritis of the spine, back trouble, hernia of the esophagus, and spurs on vertebrae". It appears that claimant's earning record shows that the special earnings requirements of the Act were met from a time prior to December, 1971, when claimant allegedly became unable to work, and that these requirements were last met on December 31, 1971. Accordingly, for the claimant to be entitled to a period of disability or disability insurance benefits, the evidence must show that the claimant was under a disability from a time on or prior to December 31, 1971, and that such disability continued at least twelve months prior to claimant's filing an application for benefits.

 Section 216(i) of the Social Security Act provides for the establishment of a period of disability, and Section 223 of the Act provides for the payment of disability insurance benefits when the requirements specified therein are met. Section 223(d)(1) of the Act defines "disability" (except for certain cases of blindness) as the "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 twelve months." Section 223(d)(2)(A) further provides, with exceptions not here applicable, that an individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. "Work which exists in the national economy" is said to mean "work which exists in significant numbers either in the region where such individual lives or in several regions of the country." Section 223(d)(3) provides that 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.

 The Administrative Law Judge has found as a fact:

"3. The preponderance of the medical evidence of record establishes that on and prior to December 31, 1971, claimant suffered from a hiatal hernia condition causing occasional chest pain and nausea, from a history of moderate arthritis of the spine made worse by an injury in January, 1971, prohibiting claimant from performing jobs requiring significant stooping, bending, or lifting, or standing or sitting for continuous or prolonged periods without opportunity for change of position to relieve discomfort."


 Since plaintiff satisfied her initial burden of proving inability to return to her former work, the burden then shifted to the Secretary to show some other specific area of employment available to her. GARRETT v. RICHARDSON, 471 F.2d 598 (8th Cir. 1972); BYRD v. RICHARDSON, 362 F. Supp. 957 (D.C. S.C. 1973); BUGDNEWICZ v. CELEBREZZE, 249 F. Supp. 139 (D.C. Pa. 1966).

 Dr. Billig, the Vocational Witness, was present throughout the entire hearing and heard all of Mrs. Huth's testimony. He had already familiarized himself with the proposed exhibits prior to the hearing. (Tr. 115, 116) He was asked the following question by the Administrative Law Judge:

". . . Dr. Billig assuming that I find that the claimant suffers from hiatal hernia, esophageal hernia condition which causes her occasional chest pain and nausea feeling from time to time, especially if she overeats, that she suffers from ah . . . a history of arthritis, ah . . . moderate . . . arthritis of her, of the spine and particularly of the cervical area, which was ah . . . made worse following a (sic) injury in January 1971 and because ah . .. because of these conditions, I might just interject at this point, she has suffered from a compression fracture of L1 of the back but this was in March 1973 and hysterectomy was performed in August 1973, however, these were considerably beyond the point of eligibility so I'm not including them. That because of these conditions ah . . . she is unable to either stand or sit for a continuous or very prolonged periods without discomfort ah . . . requiring her to change her position. Ah . . . in other words she could only stand for approximately an hour without being required to sit down to relieve her discomfort. She could only sit for about the same period before needing to move about to relieve her discomfort. And that she would be unable to do significant stooping or bending or lifting. And that she therefore, would have the residual functional capacity to perform only ah . . . light and sedentary exertion, do you have an opinion as to whether she could do any of the work that she has done in the past?"
(Tr. 117, 118)

 Dr. Billig responded:

"The one condition that I think she could function in is the light housework, the dusting, in other words, as long as it wouldn't entail moving heavy furniture because her work records show that she ...

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