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WOLFE v. CALIFANO

March 15, 1979

Mary Ellen WOLFE, Plaintiff,
v.
Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant



The opinion of the court was delivered by: MITCHELL

MAGISTRATE'S REPORT AND RECOMMENDATION

I. Recommendation

 It is respectfully recommended that the defendant's motion for summary judgment be denied, and that the decision of the Secretary of Health, Education and Welfare be reversed.

 II. Report

 Presently before the Court for disposition is the defendant's motion for summary judgment.

 On September 7, 1978, Mary Ellen Wolfe, by her counsel, filed a complaint pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g) for review of the Secretary's final determination disallowing her claim for child's disability insurance benefits under Section 202(d) of the Act, 42 U.S.C. § 402(d).

 On April 28, 1976, the plaintiff filed an application for child's insurance benefits due to the loss of an eye and glaucoma since July 12, 1951 (R. 93-94). In a decision dated March 15, 1977 benefits were denied (R. 96), and on March 16, 1977, the plaintiff requested reconsideration of this determination (R.97). Upon reconsideration, and in a decision dated November 16, 1977, benefits were again denied (R. 100-101). On December 14, 1977, a request for a hearing was made (R. 102) and pursuant to that request a hearing was held on May 11, 1978 (R. 17-92). In a decision dated June 9, 1978, benefits were denied (R. 6-11), and on June 15, 1978, the plaintiff requested reconsideration of this determination (R. 4-5). In a decision filed on July 7, 1978, the Appeals Council affirmed the prior determination (R. 3). The instant complaint was filed on September 7, 1978.

 In reviewing an administrative determination of the Secretary, the question before any court is whether there is substantial evidence in the agency record to support the finding of the Secretary that the plaintiff failed to sustain her burden of demonstrating that she was disabled within the meaning of the Social Security Act. Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Hargenrader v. Califano, 575 F.2d 434 (3d Cir. 1978); Chicager v. Califano, 574 F.2d 161 (3d Cir. 1978).

 It is provided in 42 U.S.C. Section 405(g) that:

 
"The Court shall have power to enter upon the pleadings and transcript of the record, a judgment affirming, modifying or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . . "

 Substantial evidence is " "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938)," Richardson v. Perales, supra, 402 U.S. at page 401, 91 S. Ct. at 1427; Winfield v. Mathews, 571 F.2d 164 (3d Cir. 1978).

 It is provided in Section 202(d)(1) of the Act, 42 U.S.C. § 402(d)(1) that:

 
"Every child . . . of an individual entitled to old-age or disability insurance benefits, or of an individual who dies a fully or currently insured individual, if such child . . . (B) at the time such application was filed was unmarried . . . or is under a disability . . . which began before he attained the age of 22 . . . shall be entitled to benefits . . . "

 Disability is defined in 42 U.S.C. § 423(d)(1)(A) as:

 
"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 12 months . . . "

 At the hearing held on May 11, 1978 (R. 17-92), the plaintiff appeared with counsel (R. 19) and testified that she was born on July 12, 1951 (R. 22); that she is single (R. 22), and that she completed high school including two years training in typing and bookkeeping (R. 24-28). In addition, the plaintiff worked for less than two weeks as a dentist's receptionist, but had to stop because of eye problems (R. 30-36).

 The plaintiff also testified that she can do housework and cooking although she must stop and rest often and receives help from relatives (R. 37-38, 49, 52, 62); that she can see with her right eye but it rapidly becomes blurry and painful (R. 41-42); that she can drive up to ten minutes (R. 44); that she does not read or watch television to any extent (R. 53); that she sees her doctor every six months (R. 53); that he advised resting to stop the pain (R. 42); that she has had these difficulties since age eight (R. 55), and that the condition has worsened (R. 63).

 Thomas Wolfe, the plaintiff's brother (R. 67) testified that he would corroborate the plaintiff's testimony concerning her eye problem (R. 67); that she does not participate in anything and bumps into things (R. 68); that she always covers her eye because it gets tired (R. 69); that her discomfort is evident (R. 70), and that her condition has worsened (R. 70, 71, 72).

 The issue before the Court for immediate resolution is a determination of whether or not there is substantial evidence to support the finding of the Secretary that the plaintiff was not disabled within the meaning of the Act.

 The term "disability" is defined in 42 U.S.C. Sections 423(d)(1)(A) as:

 
"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 12 months . . . "

 For purposes of the foregoing, the requirements for a disability determination are provided in 42 ...


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