On Motion for Summary Judgment
MADDEN, Chief Judge:
This is an action brought by plaintiff, John DeNafo, against John W. Gardner, Secretary of Health, Education and Welfare. The plaintiff instituted suit to review and set aside a final decision of the Secretary denying the plaintiff's application for disability benefits under the provisions of the Act.
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."