204 F. Supp. 677 | S.D.W. Va | 1962
This is an action under 42 U.S. C.A. § 405(g) of the Social Security Act to review a final decision of the Secretary of Health, Education and Welfare. Plaintiff seeks to establish a period of disability under 42 U.S.C.A. § 416(i) and a right to disability insurance benefits under 42 U.S.C.A. § 423. The final decision of the Secretary was that plaintiff was not entitled to the establishment of a period of disability or to disability insurance benefits, and the jurisdiction of this court is limited to a determination of whether that decision was based on substantial evidence. 42 U.S.C.A. § 405 (g). The court is precluded from having a hearing de novo. See Carpenter v. Flemming, D.C.N.D.W.Va., 178 F.Supp. 791.
The Act, 42 U.S.C.A. § 416 (i) provides for eliminating from a person’s earning
Plaintiff filed an application to establish a period of disability and for disability insurance benefits on August 22, 1960, alleging that he became unable to work on September 20, 1957, at age 47, due to a slipped disc and high blood pressure.
The issue in this case is whether there is substantial evidence in the record to support the Secretary’s decision that plaintiff did not show himself to be unable to engage in any substantial gainful activity as a direct result of a medically determinable impairment which was expected either to result in death or to be of long-continued and ind'efinite duration.
The primary basis for plaintiff’s claimed disability is a back condition resulting from an injury sustained in a coal mine slate fall in 1956. There is a great deal of variance in the several diagnoses which have been made of plaintiff’s condition. This variance indicates that the diagnoses were based principally on plaintiff’s subjective complaints. This conclusion is reinforced by the objective evidence (such as X-rays and myelograms) which is consistent in failing to indicate or further substantiate the presence of any disabling condition. In this atmosphere of conflicting medical evidence, the hearing examiner chose the objective medical evidence which indicated that there was nothing basically wrong with plaintiff’s spine, there being no objective medical evidence to support the subjective diagnoses of a herniated disc or a herniated nucleus pulposus. The hearing examiner, as the ultimate arbiter of conflicting evidence, was within his province in the choice he made, and his decision, being based on substantial objective evidence, may not be disturbed.
There is substantial evidence in the record to support the Secretary’s decision. That decision is, therefore, affirmed.
. Plaintiff previously had filed an application to establish a period of disability which was denied initially and on reconsideration. A hearing examiner also denied the claim after a hearing, and a request for review of his decision was denied by the Appeals Council. No appeal was taken from this decision and, therefore, that first application is not before the court in this proceeding.