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
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
Plaintiff has also contended that certain conclusions have been
drawn from false or misleading exhibits. One such conclusion is
that an exhibit offered for consideration indicated that a biopsy
had been taken when this was not true.
It is true that Government Exhibit 13 purported to indicate that
a biopsy had been taken. Notwithstanding this original error, the
issue was entirely ventilated before the hearing examiner at the
time of plaintiff's de novo review. Prior to the formal hearing
before the Bureau of Hearings and Appeals, plaintiff's attorney
brought this error to the hearing examiner's attention, and was
permitted by the hearing examiner to read into the record the
correct, but theretofore omitted, position which simply indicated
that definite biopsy material could not be obtained. Moreover,
the treating physician testified before the hearing examiner that
the earlier notation, i.e., that a biopsy had been taken, was
erroneonus. Thus the hearing examiner had before him a complete
and detailed account of the history surrounding the question of
whether or not a biopsy was taken. Plaintiff's contention,
therefore, that his disability claim was denied because erroneous
information was considered vis a vis a biopsy, is in error.
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
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.
"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