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October 5, 1981

William MURPHY
Richard S. SCHWEIKER, Secretary of Health and Human Services

The opinion of the court was delivered by: TROUTMAN


This is an action filed pursuant to Section 405(g) of the Social Security Act (Act), 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health and Human Services (Secretary) denying plaintiff's claim for disability benefits under Title II of the Act.

 Plaintiff is 43 years old (Tr. 16, 31). He has an eighth-grade education (Tr. 9, 16, 33), and has had work experience as a laborer in the construction and garment industries, and as a miner (Tr. 9, 17, 34-38). He alleges inability to work as of April 26, 1979 (Tr. 71) because of a broken heel, ankle and knee problems, anthracosis and emphysema (Tr. 17, 71).

 Plaintiff filed an application for disability benefits on November 30, 1979 (Tr. 71-74). The application was denied initially and on reconsideration, after the Pennsylvania State Agency, upon evaluation by a physician and a disability examiner, had found that plaintiff was not under a disability within the meaning of the Act (Tr. 103-105).

 The case was considered de novo by an Administrative Law Judge (ALJ) before whom plaintiff, his attorney, and a vocational expert appeared. In a decision dated November 10, 1980, the ALJ determined that the plaintiff had the residual functional capacity to perform work of a sedentary nature (Tr. 17-18). Therefore, the ALJ concluded that plaintiff was not disabled for purposes of the Act and thus not entitled to disability insurance benefits (Tr. 18). The Appeals Council denied the plaintiff's request for a review of this decision on January 12, 1981, thereby making it the final decision of the Secretary (Tr. 3).

 The issue before the Court is whether the Secretary's final decision denying plaintiff's claim for disability benefits is supported by substantial evidence.

 The principles of law governing judicial review of decisions which concern benefits under the Social Security Act can be found, simply stated, in Warhola v. Harris, 509 F. Supp. 1236 (E.D.Pa.1981):

"The Social Security Act limits judicial review of the Secretary's final decision. 42 U.S.C. § 405(g). If the Secretary's decision is supported by substantial evidence it must be affirmed by the Court. 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3); Richardson v. Perales, 402 U.S. 389 (91 S. Ct. 1420, 28 L. Ed. 2d 842) (1971). Substantial evidence is evidence which a reasoning mind would accept as sufficient to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir. 1979); Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)."

 The burden of establishing disability is placed on the plaintiff and disability must be shown in accordance with the definition thereof under the Act. 42 U.S.C. § 423(d)(5); Hess v. Secretary of Health, Education and Welfare, 497 F.2d 837 (3d Cir. 1974); 42 U.S.C. § 423(d)(1). Also, while a stringent requirement of proof of disability exists under the Act, there must also be substantial evidence to support the Secretary's findings and decision. Stubbs v. Mathews, 544 F.2d 1251 (5th Cir. 1977).

 To sustain his burden, the plaintiff must first show a medically determinable physical or mental impairment, and second, the impairment must prevent the plaintiff from engaging in any substantial gainful activity. 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 423(d)(2)(A); Hargenrader v. Califano, 575 F.2d 434 (3d Cir. 1978); Baker v. Gardner, 362 F.2d 864 (3d Cir. 1966). Substantial gainful activity is defined as work which exists in significant numbers in the national economy. 42 U.S.C. § 423(d)(2)(A). The determination of plaintiff's ability to engage in any substantial gainful activity is made with consideration of four elements of proof: (1) medical data and findings; (2) expert medical opinions; (3) subjective complaints; and (4) the plaintiff's age, education, and work history. Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972); DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972).

 Plaintiff originally injured his ankle and leg in April of 1979 as a result of a fall at work (Tr. 107, 109). He was first hospitalized at the Pottsville Hospital and Warne Clinic on April 26, 1979 (Tr. 106-112). His condition was diagnosed as a "fracture of the left oscalsis" (Tr. 106) and he complained of severe pain, limitation of movement, and pain in the right side knee area (Tr. 107, 109). The fracture was somewhat comminuted but it was noted that "the position of the fragments (was) quite good, particularly considering the amount of comminution present" (Tr. 108, 112). Surgery was performed by the treating orthopedic surgeon, Dr. Heistand, to close the reduction of the left oscalsis and there was no subsequent X-ray evidence of non-union (Tr. 115). Plaintiff received Demerol and Indocin while hospitalized (Tr. 107) and after gradual improvement of his condition, he was discharged on May 3, 1979 (Tr. 107).

 Later examination by Dr. Heistand indicated that plaintiff enjoyed full weight-bearing capacity (Tr. 115) and that plaintiff could function with certain restrictions as to the length of time he could stand or walk, to the weight plaintiff can lift, to the use of plaintiff's left foot and to his ability to bend, squat, crawl or climb (Tr. 116). The physician noted that plaintiff suffered sciatica and back pain related to the sciatica (Tr. 117). He also indicated that plaintiff uses a cane to alleviate this pain and not for weight-bearing (Tr. 117).

 In a letter dated May 6, 1980, Dr. Won Young Lee stated that plaintiff's clinical diagnoses were pulmonary emphysema and pulmonary anthracosilicosis (Tr. 118). Dr. Lee also stated that plaintiff was "completely disabled" from those diseases on February 28, 1980 (Tr. 118). He referred plaintiff for further tests to the Good Samaritan Hospital, Pottsville. The resulting radiology report stated that plaintiff suffered from pneumoconiosis with early signs of emphysema (Tr. 119) and the cardiopulmonary report stated that the studies were abnormal, showing a severe degree of obstructive and restrictive lung disease, carrying with them a "poor prognosis for long term survival" (Tr. 120).

 Plaintiff was again hospitalized between June 1, 1980, and June 14, 1980, for pain in the lower back and left leg (Tr. 141-143). Plaintiff also complained of exertional dyspnea (Tr. 132) and that his leg and back pain became more severe with any exertion. Plaintiff received Brondecon, Tedral, Metrin and Clinerol to facilitate his breathing ...

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