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August 24, 1970


The opinion of the court was delivered by: Will, District Judge.


This action is brought under 42 U.S.C. § 405(g) to review a final decision of the Secretary of Health, Education and Welfare (HEW) which denied plaintiff's disability application under section 216(i) of the Act, 42 U.S.C. § 416(i) and refused plaintiff any disability insurance benefits under section 423 of Title 42. The defendant Secretary has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.*fn1 The issue presently before this Court is whether the decision of the Secretary to deny Mr. Marek the benefit of disability insurance under the Social Security Act is supported by substantial evidence on the whole record. 42 U.S.C. § 405(g). The relevant facts are as follows.

Plaintiff filed with the Social Security Administration an application for a period of disability and for disability insurance benefits on May 3, 1967. He alleged therein that he had become unable to work in 1961 at age 31. His initial application was denied and on reconsideration by the Bureau of Disability Insurance of the Social Security Administration it was determined that plaintiff was not under a disability. Both plaintiff and his attorney, as well as witnesses, then appeared before a hearing examiner who considered the case de novo. They presented testimony and exhibits concerning plaintiff's physical condition. Only one examining and treating physician was called by plaintiff, although additional medical evidence, by way of exhibits, was before the hearing examiner. The hearing examiner found that plaintiff was not under a disability starting on or before September 30, 1963.*fn2 The hearing examiner's decision became a final disposition of the Secretary of HEW on November 19, 1969 when the Appeals Council denied plaintiff's request for review. Judicial review of that determination is now before this Court.

Defendant contends in his motion for summary judgment that the burden of proving the existence of a "disability" under the statute is on the plaintiff and that the plaintiff must show that any such disability originated during the pendency of a disability application. See, Moon v. Celebrezze, 340 F.2d 926 (C.A.7, 1965); Jones v. Celebrezze, 331 F.2d 226 (C.A.7, 1964); Kartje v. Secretary of HEW, 359 F.2d 762 (C.A.7, 1966); Henry v. Gardner, 381 F.2d 191 (C.A.6, 1967); Culbertson v. Celebrezze, 228 F. Supp. 208 (E.D.Wis. 1964).

Plaintiff does not disagree but argues 1) that there is a question of material fact in issue and that therefore a motion for summary judgment is inappropriate; 2) that if summary judgment is appropriate, then the determinations made by the hearing examiner were factually erroneous and a proper interpretation of the evidence requires a judgment for plaintiff; and 3) that the burden of proof rests on the Secretary once plaintiff has established a disabling disease.

Plaintiff's argument that summary judgment is inappropriate is without merit as there is no question of material fact in issue. As will be seen more fully hereinafter, the only issue before this Court is whether the Secretary's decision that plaintiff was not under a disability as defined in the Social Security Act on or prior to September 30, 1963 is supported by substantial evidence.

Plaintiff also avers that since the examining physician's testimony was that "although a remission occurred it does not necessarily mean that the disease has subsided * * *", a conclusion that the condition has not recurred does not follow, and to arrive at such a conclusion is error. The possibility of a recurrence is obviously not inconsistent with a finding that the possibility has not materialized and there has been no recurrence.

Plaintiff further argues that his application could not possibly have been correctly evaluated because the record of the treating physician does not confirm the hearing examiner's report and evaluation. We find this argument equally unpersuasive. The hearing examiner's decision does not dispute the fact that the claimant has sarcoidosis and that the disease was present at a time prior to the expiration of his insured status on September 30, 1963. Mere diagnosis of a disease does not indicate either the severity or the extent of disfunction caused thereby. Plaintiff's attorney furnished the hearing examiner with an informative brief on the subject of sarcoidosis. From these materials Miss Marek, as her brother's attorney, concluded that the disease with which plaintiff is afflicted is slowly progressive and malignant. Dr. Slager's testimony as well as the submitted materials themselves, cast some doubt on the malignancy question. Both the testimony and the exhibits do establish beyond any doubt that plaintiff's condition improved following his brief hospitalization. However, the medical record is alarmingly bare on the severity, or regularity, of any subsequent exacerbation and there appears to be no determination by the Secretary as to the severity of such subjective questions as pain, immobility and their consequent effect on employability.

Judicial review of a final decision of the Secretary of Health, Education and Welfare is statutorily provided for in 42 U.S.C. § 405(g). This section of the United States Code limits our power to review because it provides that, if the Secretary's decision is supported by substantial evidence, it shall be conclusive. Because of this substantial evidence rule, we may not consider the case de novo. As stated by Judge Campbell of this Court in Hourihan v. Folsom, 196 F. Supp. 534, 537 (N.D.Ill., 1958).

  Under section 205(g) I cannot make my own appraisal
  of the evidence. That section exressly makes the
  Secretary's finding conclusive if supported by
  substantial evidence. The finality accorded to the
  Secretary's findings extends as well to the
  inferences from the evidence made by the Secretary if
  a substantial basis for them appears in the record.

Following a review of the hearing record and the exhibits, the hearing examiner found that the claimant did not have an impairment or impairments which prior to September 30, 1963 were so severe and unamenable to therapy that they prevented him from performing any of his former jobs as an unskilled laborer for any continuous period of twelve months, and that, therefore, he was not under a disability as defined in Section 216(i) and 223 of the Social Security Act as amended at any time prior to September 30, 1963. It is our task to decide whether or not the Secretary's determination is supported by substantial evidence.

"Disability" within the Social Security Act, as amended, means

  * * * 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 that has lasted or can be
  expected to last for a continuous period of not less

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