that plaintiff could perform "the usual activities of administrative work." It is urged that this report means that although plaintiff could do certain types of work, he could not continue in the tension provoking occupation of landlord. Without specific indication that this was Dr. Kirstein's meaning, such an inference would be unwarranted. The Secretary was justified in interpreting the statement to mean that plaintiff could continue the administrative activities of his business. Because Dr. Kirstein was the only doctor who attended plaintiff regularly through the whole period in question, his report may be given more weight than those of other doctors. It is true that Dr. Yater concluded that Mr. Wesley was disabled, but his opinion refers only to 1972, four years after the date on which plaintiff had to prove disability. The written report of a doctor who has examined the plaintiff is substantial evidence to support an adverse decision by the Secretary. Richardson v. Perales, supra. Therefore, Dr. Kirstein's report is substantial evidence to support the Secretary's denial of benefits.
A second basis for the Secretary's decision was the conclusion that plaintiff continued to work until his business was sold on July 1, 1971. The evidence in the record on plaintiff's work is ambiguous and contradictory, ranging from his statements on the disability report of December 3, 1971, that he worked until July 1, 1971, when he sold the buildings because he was no longer able to maintain them, to his testimony before the Appeals Council that he never worked after 1966. When there is conflicting evidence, the trier of fact may decide which of it to accept. Robles v. Finch, 409 F.2d 84 (1 Cir. 1969); and the Court may not reverse simply because it would have drawn different inferences. The Secretary relies on three reports of disability and work activity, and the record of the hearing before the administrative law judge also contains testimony that Mr. Wesley worked three hours per day. Because the Social Security regulations provide that part-time or supervisory work may be substantial, the Court must uphold this finding.
Plaintiff's reliance on Meneses v. Secretary of Health, Education, and Welfare, 143 U.S.App.D.C. 81, 442 F.2d 803 (1971), to show that he was disabled is misplaced. Meneses dealt with the burden of proof, an issue which has not been raised here. It is true that the plaintiff in Meneses had a Class III heart condition, as did the plaintiff here, but the Court of Appeals was concerned not with the exact diagnosis but with the fact that Meneses was actually discharged from his work as a Philippine Scout for medical reasons. In contrast, there is evidence to show that plaintiff here returned to his work part-time. Moreover, even if one were to read Meneses for the proposition that a person with a Class III heart condition is unable to perform military duty, regardless of other evidence, the case would not require the same conclusion for a different occupation, that of landlord. Furthermore, there was no medical evidence in Meneses indicating that the plaintiff was not totally disabled, whereas here, Dr. Kirstein's report supplies substantial evidence that plaintiff could do administrative work.
Plaintiff also has requested that the case be remanded to the Appeals Council for consideration of additional evidence, a letter from Dr. Lionel Roger who attended him in the hospital in 1968. Dr. Roger states that Mr. Wesley "would not be able to perform any emotional tension activities; for which I consider him totally disabled." Although the Appeals Council has not reopened the record to consider this letter, it has stated that it would not change its decision since the letter does not substantially differ from the hospital records which were available at the hearing. Remand may be ordered when a plaintiff shows "good cause." 42 U.S.C. § 405(g). This does not require a showing of evidence that would warrant a new trial, or require vacation of a judgment. However, the evidence should add new information to the record; otherwise a remand would be pointless. Since the Council has declared that it will not change its decision, and because Dr. Kirstein's report constitutes substantial evidence, the Court concludes a remand is not justified.
In view of the foregoing, it is by the Court this 11th day of October, 1974,
ORDERED that defendant's motion for summary judgment be, and the same hereby is, granted; and it is further
ORDERED that plaintiff's cross-motion for summary judgment be, and the same hereby is, denied.
Oliver Gasch / Judge
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