This is an action brought pursuant to Section 205(g) of the Social Security Act, ■as amended [42 U.S.C.A. § 405(g)], to review a final decision of the Secretary of Health, Education and Welfare, denying plaintiff’s claim for the establishment ■of a period of disability — the so-called “disability freeze”. — and for monthly disability insurance benefits. 1 Both parties have moved for summary judgment. Rule •56, Fed.R.Civ.P. (28 U.S.C.A.).
Authority for this Court to review a final decision of the Secretary is contained in Section 205(g) of the Social Security Act [42 U.S.C.A. § 405(g)], wherein Congress, in granting such jurisdiction to this Court, expressly imposed the limitation that the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. The review by this Court, therefore, is not a trial de novo. This Court may not substitute its own judgment for that of the Secretarse and may not reverse the decision below on the ground that, based on its own reappraisal of the evidence, it would have reached a different result. Kraynak v. Flemming (3d Cir., 1959),
From the certified record before the Court it appears that plaintiff was born in 1901 and received a formal education through the tenth grade and less than one year of business college training in bookkeeping and banking. His employment history shows a background of experience generally in the nature of heavy manual labor, first as a farmer, then warehouseman, cistern digger, carpenter, power saw operator, foreman over a building crew, hotel manager, and, since his heart attack in 1951, as an animal caretaker, mail clerk and carrier. He has never had any type of office job or “sitting down job” in his life. 2
In making application to establish a disability plaintiff stated that he had a bad case of arthritis in 1949 and suffered a coronary thrombosis in 1951. He complains generally of cardiovascular and musculoskeletal impairments plus a liver ailment. On June 24, 1957, he filed applications with the Social Security Administration to establish a period of disability and for disability insurance benefits. These applications were first denied by the Bureau of Old-Age Survivors Insurance upon a finding that plaintiff was not under such a disability that would prevent him from doing “substantial *31 work in any occupation.” 3 Upon reconsideration, the Bureau affirmed the initial denial on the grounds that the medical evidence, although showing several impairments, did not show that plaintiff’s over-all ability had been so severely affected that he was “unable to do any type of substantial gainful work.” 4 He then obtained a hearing before a Hearing Examiner [42 U.S.C.A. § 405(b)], who, on November 24, 1959, denied the benefits and wage freeze upon a finding that:
“ * * * the evidence does not establish that he is suffering from any impairment or combination of impairments severe enough to prevent him from engaging in some form of substantial gainful activity.” Record, p. 18. (Emphasis added.)
And further finding that:
“ * * * claimant was not suffering from any medically determinable impairment expected to be of long-continued and indefinite duration or to result in death, of such severity as to prevent [plaintiff] continuously from engaging in any form of substantial gainful activity in the then foreseeable future. * * *” Ree-cord, p. 18. (Emphasis added.)
There were no appearances by medical witnesses at the hearing. Plaintiff was the only witness (with occasional comments by plaintiff’s wife) and the medical evidence consisted solely of the following exhibits:
1. Report of William 0. Good, M.D., dated April 11, 1956. Record, p. 88.
2. Report of Yolo General Hospital, not dated. Record, p. 89.
3. Report of R. R. Delgrado, D. 0., dated April 15, 1957. Record, p. 90.
4. Report of William 0. Good, M. D., dated June 28, 1957. Record, pp. 91-2.
5. Report of William P. Linnane, M.D., dated July 8, 1957. Record, pp. 93-4.
6. Letter from Montrose Memorial Hospital, dated Feb. 13, 1958. Record, p. 95.
7. Report of William P. Linnane, M.D., dated March 25, 1958. Record, p. 96.
8. Letter from William P. Linnane, M.D., to plaintiff, dated May 2, 1958. Record, p. 97.
9. Report of Glenn A. Pope, M.D., dated Sept. 3, 1958. Record, pp. 98-101.
10. Report of George L. Alexander, M.D., dated Sept. 5, 1958. Record, p. 102.
11. Report of Virgil R. Airola, M.D., dated Oct. 14, 1958. Record, pp. 103-104.
12. Two Reports of Sacramento Clinical Laboratory, dated Dec. 16, 1958. Record, pp. 105-106.
13. Letter from William O. Good, M.D., to plaintiff, dated May 27, 1959. Record, p. 107.
In addition, the Record contains the report of Kenneth C. Smith, M.D., for James S. Whitely, M.D., dated June 14, 1960, admitted by the Appeals Council of the Social Security Administration. 5
A review of the evidence and the findings of the Hearing Examiner establishes that the plaintiff sustained an acute coronary occlusion with myocardial infarction in 1951; that he has moderate arthritis of the spine; that he suffers from coronary artery disease, a coronary insufficiency, hypertension, and angina pectoris (there is a conflict as to the seriousness of the angina. He gets some relief from medication); that he complains of severe pains in left leg and hip, although there is only a little objective orthopedic explanation for such; that he has hepatitis; that he complains *32 of arthritis in his upper extremities, but with only minor clinical evidence of it; that he complains of dyspnea on exertion, headaches, and general fatigue; that he complains of a severe pain running from his thigh, around his waist and in his back, but there is conflict in the clinical explanations for it. The doctors seemed in accord, and the Hearing Examiner so found, that plaintiff is not capable of heavy manual labor. Some doctors (plaintiff’s treating physicians) suggested only some light activity; others (retained by the defendant) suggested capability from moderate to heavy. It is clear that plaintiff can perform light work as evidenced by his present daily activities. There is no evidence that he could sustain any particular activity for longer than an hour or so, or without interruption for any length of time.
The statutory definition
6
of disability imposes a three-fold requirement: (1) There must be a “medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration”; (2) There must be “inability to engage in any substantial gainful activity”; and (3) The inability must exist “by reason of” the impairment. Pollak v. Ribicoff (2d Cir., 1962),
The record does show that plaintiff can perform minor daily chores, such as washing dishes, and that he assists his wife in
her
job as manager of some motel units by answering phones, registering guests, and doing some bookkeeping, all totaling one to two hours of activity a day spread over the entire day and in between rest periods. But certainly the ability to do such menial tasks in such a fashion off and on during the day amounting to only six to twelve hours per week is not activity of a “substantial and gainful” nature even if plaintiff was receiving compensation for his gratuitous assistance to his wife.
9
Rice v. Celebrezze, supra,
The interdependent relationship of plaintiff’s ailments and the totality of their effect upon plaintiff’s physical and mental capabilities to perform any substantial activity, though misused by the Examiner, was recognized by the doctors retained by the Secretary.
12
The Examiner quoted from Dr. Pope’s Report the internist’s opinion that it is difficult to evaluate plaintiff “ * * * because one sees men with no more disability than this man presents but with proper motivation performing very adequately.” Record, p. 16. Dr. Pope concludes : “I’m afraid his lack of motivation will probably interfere with his performing adequately in any position in which he is placed.” Record, p. 101. The Examiner apparently relied on these statements to support a finding of no disability. However, the law compels that such medical evidence is more proof of disability rather than the contrary. As was stated in Ollis v. Ribicoff (W.D.N.C.1962),
From the above discussion it follows that the finding of the Secretary in this case was “based on evidence that does no more than raise a suspicion or suggests only a possibility or a weak probability that the plaintiff is able to engage in a substantial and gainful activity [and as such] does not meet the test of ‘substantial evidence’ as used in the Act.” Brown v. Celebrezze, supra,
It is, therefore, ordered that plaintiff’s motion for summary judgment be, and the same is, hereby granted, and that judgment be entered in favor of plaintiff. Defendant’s motion for summary judgment is denied. Plaintiff’s counsel shall prepare an appropriate Judgment in accordance with this Memorandum and Order.
Notes
. 42 U.S.C. § 416(i) provides for the establishment of a “period of disability” which is more commonly known as the “disability freeze.” 42 U.S.C. § 423 provides for the payment of disability insurance benefits and defines disability as: “§ 423. * * * (c) For purposes of this section— * * * (2) The term ‘disability’ 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 to be of long-continued and indefinite duration. An individual shall not be considered to be under a disability unless he furnishes such proof of the existence thereof as may be required.”
. Record, p. 52.
. Record, p. 78.
. Record, pp. 86-7.
. 20 C.F.R. § 403.7.0(c) (2) provides for the receipt of additional evidence by the Appeals Council if necessary for a full determination of the matter.
. See n. [1], supra.
. Record, pp. 17-18.
. The same test has been adopted in other circuits as well. Erickson v. Ribicoff (6th Cir., 1962),
. As to the monetary limits to “substantial and gainful” see, Meola v. Ribicoff, supra, n. 4, citing Flemming v. Booker (5th Cir., 1960),
.
. Plaintiff’s orthopedic impairments are clearly only moderate by any objective clinical analysis, but from a subjective point of view — principally plaintiff’s own statements to the doctors or the Examiner — the pains suffered and the restrictions in movement are severe (whether they be from purely orthopedic causes or partly from his liver ailment or, as suggested by Hr. Airola in his report, partly caused by an arterial insufficiency suggesting intermittent claudication or even from an arterial block in the region of the aortic bifurcation). In any event, such complaints as plaintiff’s are said to be notoriously difficult to establish by clinical proof, or any objective finding. Underwood v. Ribicoff, supra,
. See, e. g., Dr. Airola’s Report at pages 103-104 of Record.
