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July 29, 1977

Joseph DAVIS
Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare

The opinion of the court was delivered by: NEWCOMER

 NEWCOMER, District Judge.

 This action is brought under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare denying the claimant disability benefits. After careful consideration of the record, I have determined that the Motion for Summary Judgment should be granted and that judgment should be entered for the defendant and against the plaintiff.


 Mr. Davis, a 50 year old claimant, is 5 feet 9 inches tall and weighs 240 pounds. The claimant worked as a laborer in the construction industry until 1961. From 1961 until he last worked in January 1973, the plaintiff was employed by an abrasive manufacturing company. He performed various jobs including that of mixer, towtractor driver, and janitor.

 Plaintiff was hospitalized again from February 1, 1973 until February 14, 1973, for chest pains. Chest x-rays were normal and an electrocardiogram showed no significant changes. A third hospital admission occurred on March 31, 1973. The diagnosis was chest pains of unknown etiology with a history of chronic hypertension and cervical arthritis. The coronary artery disease was ruled out by a catheterization. The next admission was in July, 1973, and ended with a good prognosis. The plaintiff continued to see Dr. Thiester, a cardiovascular specialist, from June 20, 1973 until November 27, 1973. Dr. Frignito, a Board-certified psychiatrist and neurologist, examined the plaintiff on June 13, 1974. Plaintiff claimed he could hardly move due to intense cervical pain. The doctor found that the condition was some type of psychoneurotic reaction which was suggestive of hysterical or hypochondriacal neurosis. Dr. Crellin, an internist, diagnosed the condition as essential hypertension and obesity. An orthopedic surgeon examined plaintiff on April 14, 1975 and found he was obese but in good general condition. Dr. King, an osteopathic physician, treated the plaintiff while he was in the hospital from April 26, 1975 until May 8, 1975. Dr. King stated in a report that plaintiff was unable to work because he could not sit, stand or walk for any length of time. It was his opinion that plaintiff was suffering from a significant heart disease and that the jobs suggested at the hearing would cause plaintiff anxiety and increase the risk factor.


 To qualify for disability benefits, the claimant must show: 1) that there is 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 no less than twelve months; and 2) there must be a determination that the impairment renders the plaintiff unable to engage in any substantial gainful employment. Fishburn v. Finch, 313 F. Supp. 838 (E.D.Pa.1970) aff'd, 452 F.2d 1004 (3d Cir. 1971). There is no doubt that plaintiff in this case has medical problems. The Administrative Law Judge ("ALJ") stated in the findings,

"3. [That] the evidence shows that the claimant has controlled diabetes through oral medication; a hypertensive cardiovascular disease, perhaps with a coronary insufficiency, which is controlled through medication; minimal degenerative changes of the cervical spine; and intermittent chest pains of unknown etiology which require the taking of Nitroglycerine from time to time." Tr. at 21.

 However, the mere presence of a disease does not automatically establish a "disability" as defined in the act. The claimant also must satisfy the second element by presenting evidence that his impairment renders him unable to engage in substantial employment. Gardner v. Richardson, 383 F. Supp. 1 (E.D.Pa.1974).

 The plaintiff claims he has satisfied this second element. He points to the information provided by Drs. Nedimilla, Seisley and Goldburgh (who is associated with Dr. Thiester). All of these doctors opined that based on their clinical and other experiences with the plaintiff, they believe that he is unemployable. However such medical reports do not themselves prove a "disability." The agency regulations, 20 C.F.R. § 404.1526 (1976), state that under these kinds of circumstances:

"The function of deciding whether or not an individual is under a disability is the responsibility of the Secretary. A statement by a physician that an individual is, or is not, 'disabled,' 'permanently disabled,' 'totally disabled,' 'totally and permanently disabled,' or 'unable to work,' or a statement of similar import, being a conclusion upon the ultimate issue to be decided by the Secretary, shall not be determinative of the question of whether or not an individual is under a disability."

 Especially if, as in this case, there is contradictory evidence, it is up to the Secretary, acting through the ALJ, to weigh the evidence and make the ultimate decision. The reviewing court must accord deference to the fact finder on issues of credibility. The court's function is limited to determining if the finding of facts and conclusions are supported by substantial evidence. The standard of review is whether there exists such relevant evidence as a ...

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