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July 14, 1980

Patricia R. HARRIS, Secretary of Health, Education and Welfare

The opinion of the court was delivered by: GILES


In this action, filed pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. 405(g), plaintiff, Theodore Capoferri, seeks review of the final decision of defendant, Secretary of Health, Education and Welfare ("Secretary") denying his claim for a period of disability and disability insurance benefits. Defendant has moved for summary judgment. Plaintiff has filed a motion for remand for the taking of additional evidence. The issues before the court are (1) whether there is substantial evidence to support the Secretary's final decision, and (2) whether plaintiff has established "good cause" for remand.

 For the reasons set forth below, the court grants defendant's motion for summary judgment and denies plaintiff's motion for remand.

 Plaintiff, a fifty-nine year old man, filed an application for disability benefits on April 24, 1978, alleging that he has been disabled since December 1, 1973. Having last met the earnings requirement for purposes of entitlement to disability benefits in September, 1974, the relevant period of alleged disability is December 1, 1973, to September 30, 1974, when plaintiff was approximately fifty-three years old. Initially, plaintiff's claim was denied, and again, on reconsideration by the Pennsylvania state agency. He thereafter requested an administrative hearing, which was held before an Administrative Law Judge ("ALJ") on April 10, 1979. Plaintiff appeared at the hearing, accompanied by his wife and represented by counsel.

 The ALJ entered an opinion on April 27, 1979, finding that plaintiff was not disabled. This became the final decision of the Secretary when the Appeals Council refused plaintiff's request for review of the administrative hearing decision.

 During the period in question, plaintiff was fifty-three years old. He had a ninth-grade education and was employed as a house painter from 1943, when he was discharged from the Army, until 1973. In that last five-year period, 1968-1973, plaintiff was self-employed because he felt unable to work full time for contractors.

 The medical evidence may be briefly summarized as follows:

 Between 1966 and 1968, plaintiff was treated for a cervical arthritis condition by Dr. W. Glocher. This medical condition was improved through traction and use of the drug Butazolidin. In a medical report dated September 21, 1971, Dr. N. Hauser, a radiologist, stated that x-rays of plaintiff showed marked right rotary scoliosis of the lumbar spine and evidence of degenerative disc disease. On October 6, 1971, Dr. Robert J. Byrne reported that a recent examination of plaintiff had indicated a range of motion of the lumbar spine limited to 50% of normal, an ability to bend forward to within eight to ten inches of the floor, and hyperextension limited to 30% to 40% of normal. Plaintiff acknowledged in the medical history that he had always had curvature of the back and had long had discomfort in that area. His right leg was noted to be 3/4 inch shorter than his left leg. Dr. Byrne's prognosis was that the scoliosis was permanent and the disc problem was progressive.

 Plaintiff contends that his condition of right rotary scoliosis and degenerative disc disease rendered him disabled beginning December 1, 1973, and that the adverse finding of the Secretary was not based on substantial evidence, the ALJ conducted his hearing in a prejudicial manner, and additional evidence in the form of five sworn statements (one from the Montgomery County Clerk of Court, three from former employers, and one from Dr. Elliot Menkowitz) warrants a remand.

 Section 205(g) of the Social Security Act provides that "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. 405(g). Judicial review of the Secretary's factual determinations is limited solely to ascertaining whether they are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971), and if so, the Secretary's decision must be affirmed even though the record may also support a contrary conclusion. DeNafo v. Finch, 436 F.2d 737 (3d Cir. 1971). However, the reviewing court has a duty to make a searching investigation of the record in order to determine whether the Secretary's decision is supported by substantial evidence and whether it was made in accordance with the proper legal standards. Gold v. Secretary of Health, Education & Welfare, 463 F.2d 38 (2d Cir. 1972). See also Lincovich v. Secretary of Health, Education & Welfare, 403 F. Supp. 1307 (E.D.Pa.1975). The Supreme Court has characterized substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. at 401, 91 S. Ct. at 1427.

 In this case, the definition of disability as contained in the Social Security Act provides the correct legal standard. 42 U.S.C. ยง 423 (1976) reads, in pertinent part:

(d)(1) The term "disability" means --
(A) 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;
(B) ...
(2) For purposes of paragraph ...

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