Toborowski v. Finch (363 F. Supp. 717, 1973)

OPINION

TROUTMAN, 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. The final decision in this case is that of the Appeals Council rendered on December 19, 1969, after granting the plaintiff’s request for review of a decision rendered by a hearing examiner on May 12, 1969, and after consideration of additional evidence. The final decision holds that the plaintiff is not entitled to benefits under Section 216 (i) and Section 223, respectively, of the Social Security Act, as amended, 42 U.S.C. § 416(i) and § 423.

The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. 42 U. S.C. § 405(g). This Court has no authority to hear the case de novo. Thomas v. Celebrezze, 331 F.2d 541 (4th Cir. 1964); Mauldin v. Celebrezze, 260 F. Supp. 287 (D.S.C.1966). The question here involved, therefore, is whether there is substantial evidence to support the Secretary’s decision. To answer this question, it is the duty of this Court to look at the record as a whole. Boyd v. Folsom, 257 F.2d 778 (3d Cir. 1958); Klimaszewski v. Flemming, 176 F.Supp. 927 (E.D.Pa.1959).

The test for disability consists principally of two parts: (1) a determination of the extent of the physical or mental impairment and (2) a determination whether that impairment results in an inability to engage in substantial gainful activity. Stancavage v. Celebrezze, 323 F.2d 373 (3d Cir. 1963); Klimaszewski v. Flemming, supra, 176 F.Supp. at page 931.

' “Substantial evidence” has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”. Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966); Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). It must be enough, if the trial were to a jury, to justify a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. If there is only a slight preponderance of the evidence on one side or the other, the Secretary’s finding should be affirmed. Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir. 1962).

There are four elements of proof to be considered in making a finding as to plaintiff’s ability or inability to engage in any substantial gainful activity. They are: (1) medical data and findings, (2) expert medical opinions, (3) subjective complaints, and (4) plaintiff’s age, educational background, and work history. Dillon v. Celebrezze, 345 F.2d 753, 755 (4th Cir. 1965); Thomas v. Celebrezze, supra, 331 F.2d at 545; Underwood v. Ribicoff, supra, 298 F.2d at 851.

Plaintiff is the recipient of occupational disease and black lung benefits. This, however, is not conclusive upon the Secretary. Jesse Davis v. Richardson, 345 F.Supp. 1273, 1278.

We have carefully reviewed the entire record, including extensive medical testimony and reports by various physicians. The Appeals Council has summarized the evidence as follows (pp. 6 and 7):

“SUMMARY OF THE EVIDENCE

“A brief review of the medical evidence of record before the hearing examiner reveals that the claimant had a chest X-ray on August 7, 1967, which indicated the possibility of early pneumoconiosis, but there was no evidence of any acute or active pulmonary infection. A complete internist examination in January 1968 resulted in a diagnosis of early hypertensive syndrome with some arteriosclerotic involvement, left ventricular enlargement, a