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DENAFO v. GARDNER

July 21, 1967

John DeNAFO, Plaintiff,
v.
John W. GARDNER, Secretary of Health, Education and Welfare, Defendant



The opinion of the court was delivered by: MADDEN

 MADDEN, Chief Judge:

 The government filed answer, and along therewith, filed the complete record of the application, hearing and conclusions. The plaintiff and the government thereupon both moved for summary judgment on the record. Briefs have been filed and studied.

 The Court's duty in cases of this nature is not whether it agrees or not with the hearing examiner but a more limited one, namely, "Was there substantial evidence in the record to support the finding of the examiner that DeNafo was not precluded by his physical condition from substantial gainful activity?" See Hodgson v. Celebrezze, 312 F.2d 260 (3 Cir. 1963).

 This Court concludes that the Appeals Council of the Department of Health, Education and Welfare erred in holding that there was substantial evidence to support this determination.

 The hearing upon which the Appeals Council based its decision was conducted by Albert C. Osofsky, Hearing Examiner, on July 14, 1965, and decision rendered October 15, 1965.

 The personal history of the plaintiff is, as follows: he was born January 9, 1917; at age 8, as the result of a fall, he dislocated his right hip which ultimately caused a four-inch shortening of the right leg; he had an eighth grade education; he became a paperhanger and painter by trade; that on June 12, 1957, he suffered a myocardial infarction and was hospitalized, and was also found to be afflicted with arteriosclerotic coronary artery disease; by 1959 he had developed angina; that in May, 1964, he suffered his second myocardial infarction; and that by April 12, 1965, he suffered a severe coronary insufficiency.

 In footnote 1, page 2, of the Decision of the Appeals Council, it states:

 
"The hearing examiner, based on the record before him, found the claimant last met the earnings requirements on June 30, 1958. A recertified earnings record (Exhibit AC-2) obtained by the Appeals Council shows that he continued to meet the earnings requirements through March 31, 1959."

 In its conclusions the Appeals Council said:

 
"On September 30, 1964, the claimant filed an application, alleging that he became unable to work on June 12, 1957, because of a heart attack. His principal occupation was that of a painter. The medical evidence of record, before the hearing examiner, shows that the claimant sustained a myocardial infarction in June 1957 which required a 21-day period of hospitalization. Thereafter, he made an 'excellent recovery from his coronary' (Exhibit 22) and as late as March 1961 'was asymptomatic' (Exhibit 13). His attending physician 'told him that he could return to his paperhanging and painting provided he did not overdo it' (Exhibit 22). As of March 1961, he had a heart classification of 1-B (Exhibit 13)."

 In concluding the Appeals Council said, in this paragraph, "Thereafter, he made an 'excellent recovery from his coronary' (Exhibit 22) and as late as March 1961 'was asymptomatic' (Exhibit 13)." The Appeals Council obviously ignored or missed parts of Exhibit 13, such as, "Present Condition - Did well from time of M.I. (myocardial infarction) to 1959 when angina developed but subsided in about 1 year."

 Likewise, the Council did not observe the full text of Exhibit 23, wherein, among other things, it is observed "In spite of his having very little in the way of symptomatology, we had restricted his activities to very light work and no lifting or strenuous exertion. He was not able to obtain any employment during this time because of the restrictions of his exertional tolerance and, in spite of his ...


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