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April 14, 1976

Caspar WEINBERGER, Secretary of Health, Education and Welfare

The opinion of the court was delivered by: HANNUM

HANNUM, District Judge.

 Presently before the Court are cross-motions of the parties for summary judgment on an appeal, pursuant to Section 205(g) of the Social Security Act, as amended, Title 42 U.S.C. § 405(g), of a final decision of the Secretary of Health, Education and Welfare denying the claimant disability benefits. The Administrative Law Judge's decision of August 9, 1974, holding that Mrs. Donahue was not entitled to disability benefits under Sections 216(i) and 223 of the Social Security Act, as amended, Title 42 U.S.C. §§ 416(i), 423, became the final decision of the Secretary in this case when the Appeals Council affirmed it on November 1, 1974.

 Under Title 42 U.S.C. § 405(g), the Court's role in reviewing the Secretary's decision is delimited to making a determination as to whether or not there is substantial evidence in the record as a whole to support the finding of the Secretary that the claimant did not qualify for disability insurance benefits. In this regard, substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," and it is more than a "scintilla." Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir. 1971), cert. denied, 402 U.S. 976, 91 S. Ct. 1680, 29 L. Ed. 2d 142 (1971), rehearing denied, 403 U.S. 912, 91 S. Ct. 2213, 29 L. Ed. 2d 690 (1971). After a careful review of the record and briefs, and for the reasons discussed below, the Court finds that the Secretary's decision is not supported by substantial evidence, and therefore grants the claimant's motion for summary judgment.

 The claimant has the burden of establishing that she was disabled within the meaning of the Social Security Act. Reyes Robles v. Finch, 409 F.2d 84 (1st Cir. 1969); Mark v. Celebrezze, 348 F.2d 289 (9th Cir. 1965). In order to meet this burden, the claimant must prove two things: first, that she 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 twelve months; and second, that the impairment renders her unable to engage in any substantial gainful employment. Title 42 U.S.C. § 423(d); Baker v. Gardner, 362 F.2d 864 (3d Cir. 1966); Bujnovsky v. Celebrezze, 343 F.2d 868 (3d Cir. 1965).

 The Secretary must consider objective medical data and findings, expert medical opinions, subjective complaints, and the claimant's age, educational background, and work history in determining whether or not a person is able to engage in any substantial gainful employment. DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972); Dillon v. Celebrezze, 345 F.2d 753 (4th Cir. 1965); Barats v. Weinberger, 383 F. Supp. 276 (E.D.Pa.1974). Furthermore, if a claimant demonstrates that an impairment is so severe that she can no longer perform the kind of work in which she has been engaged previously, the burden shifts to the Secretary to prove the availability of some other kind of substantial gainful employment which the claimant is able to perform. Stark v. Weinberger, 497 F.2d 1092 (7th Cir. 1974); Hernandez v. Weinberger, 493 F.2d 1120 (1st Cir. 1974).


 The claimant in this case, a school crossing guard who had previously worked as a packer in a pickle factory and as an inspector in a stocking factory, was fifty-eight years old at the time of the hearing before the Administrative Law Judge. Besides the claimant and her daughter, who appeared on behalf of the claimant, a vocational expert called by the Administrative Law Judge testified at the hearing. In addition to this testimony, the Administrative Law Judge in rendering his decision also considered the medical reports of Dr. Dante Bevilacqua, claimant's treating physician; Dr. Jay H. Davidson, who examined Mrs. Donahue at the request of the Disability Determination Section, Commonwealth of Pennsylvania; and Dr. Norman Learner, a medical adviser in the Social Security Program who reviewed the claimant's medical records but never examined her personally.

 The Administrative Law Judge's findings demonstrate that the claimant met the first part of her burden of proving that she was disabled as a result of a medically determinable physical or mental impairment. In the evaluation of the evidence, the Administrative Law Judge stated that "the medical record reveals that there is a general agreement that the claimant has a hypertensive cardiovascular heart disease and left ventricular hypertrophy as supported by clinical findings of elevated blood pressure and . . . by x-ray and electrocardiogram. (N.T. 10). As to the second element of her burden, her ability to engage in substantial gainful employment, the Administrative Law Judge found that Mrs. Donahue could not return to her prior employment as a school crossing guard because such work required too much pressure in short periods of time for her condition to sustain. (N.T. 13).

 As stated earlier, after the claimant established her inability to return to her prior employment, the burden shifted to the Secretary to demonstrate the availability of other gainful employment that the claimant could perform. The Administrative Law Judge found that this burden was met. Based on a vocational expert's response to a hypothetical question, the Administrative Law Judge held that Mrs. Donahue possessed the requisite physical and mental capacity to perform certain sedentary and light work jobs that existed in significant numbers in her region. (N.T. 13, 14). Thus, he concluded that:


 The Administrative Law Judge's conclusion that the claimant could perform certain types of light or sedentary work was based on the written response to interrogatories submitted by Dr. Learner, a Social Security Program medical adviser. (N.T. 4). The vocational expert's testimony that certain available jobs were performable by the claimant was based on the key assumption that, consistent with the opinion of Dr. Learner, Mrs. Donahue's activity should be constrained only to the extent that she "should not engage in any strenuous physical exertion or activity such as heavy lifting, pushing, or running." *fn1"

 All of the evidence, medical or otherwise, other than the conclusions drawn by Dr. Learner, are supportive of Mrs. Donahue's claim for disability insurance benefits. Her treating physician of ten years duration, Dr. Bevilacqua, reported that her "condition has become progressively worse, and it was necessary for her to stop working. It is my opinion that she will not be able to work indefinitely. Prognosis is guarded." (N.T. 120). Dr. Davidson's opinion, expressed after he examined the claimant, is consistent with that of Dr. Bevilacqua. His view was that Mrs. Donahue suffered from "hypertensive cardiovascular disease with cardiac ...

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