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Chesonis v. Gardner

decided: December 12, 1966.

ALVIN CHESONIS, APPELLANT,
v.
JOHN GARDNER, SECRETARY OF HEALTH, EDUCATION AND WELFARE, UNITED STATES OF AMERICA



Ganey, Smith and Freedman, Circuit Judges.

Author: Per Curiam

Opinion OF THE COURT

This matter involves the disposition of motions for summary judgment by both the plaintiff and defendant and an appeal by the plaintiff from the granting of defendant's motion and the denial of the plaintiff's motion.

The plaintiff filed an application for a period of disability and for disability insurance benefits on April 18, 1962, alleging he became unable to work on November 10, 1959. The application was denied initially and later reconsidered by the Division of Disability Operations of the Social Security Administration, after the Pennsylvania Board of Vocational Rehabilitation had found the plaintiff was not under a disability upon an evaluation of the evidence by a physician and a disability examiner. The hearing examiner, considering the case de novo, found, on April 11, 1963, that the plaintiff was not under a disability beginning on or before June 30, 1962, when he last had the necessary disability status. After denial of his request for review of the hearing examiner's decision by the Appeals Council, plaintiff brought an action in the District Court requesting judicial review of the decision. On its own motion, by order of January 8, 1964, the matter was remanded to the Secretary of the Department of Health, Education and Welfare for the taking of additional testimony stating that reconsideration should be given to his employment capabilities and establishment of whether such disability as he had prevented him from engaging in any substantial gainful activity. Additionally, evidence was taken by the hearing examiner, including that of a vocational consultant, and the examiner found that the plaintiff was not under a disability and, upon consideration of the whole record, the Appeals Council, as of December 30, 1964, rendered a decision which approved and adopted the hearing examiner's recommended decision of October 9, 1964. Accordingly, the Appeals Council's decision was the final decision of the Secretary of Health, Education and Welfare.

On July 11, 1963, the plaintiff filed a complaint and cross-motions for summary judgment were filed and argued before Honorable Harold K. Wood who, in a well-considered opinion, granted the defendant's motion for summary judgment and denied the plaintiff's motion for summary judgment.

Accordingly, the judgment of the lower court is affirmed.

19661212

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