Ella S. Mode v. Anthony J. Celebrezze, Secretary of Health, Education and Welfare

BOREMAN, Circuit Judge

(dissenting).

The District Court, in upholding the Secretary’s decision, aptly stated: “In reviewing a decision of the Secretary denying disability benefits under the Social Security Act, this court does not hold a hearing de novo; it must, therefore, uphold his decision if supported by substantial evidence.”

The Hearing Examiner, whose decision became the decision of the Secretary, found that the claimant did have some impairments but they were not so severe as to prevent her from engaging in the same kind of work she had been doing. The Examiner had the opportunity to hear and observe the witnesses who testified, including the claimant as she described her impairments, her aches and her pains. He was convinced that she did experience pain but concluded, after considering all the evidence, both objective and subjective, that she had persuaded herself that she was not able to work and therefore had no motivation to continue. Considering the evidence as a whole the Examiner appears to have applied the tests approved by this court in Underwood v. Ribicoff, 298 F.2d 850 (1962), and numerous cases subsequently decided, in determining that claimant’s impairments were not disabling within the meaning of the Act.

*138The District Court found substantial evidence in the record to support the Secretary’s decision based upon the findings of the Examiner. Upon a hearing de novo we might reach a conclusion contrary to that of the Examiner but that is not the test. I feel compelled to express my view that we should affirm.