
    Donnie F. LEAKE, Plaintiff, v. Joseph A. CALIFANO, Jr., Defendant.
    Civ. A. No. 78-2414.
    United States District Court, District of Columbia.
    Sept. 27, 1979.
    Michael I. Gilbert, Washington, D. C., for plaintiff.
    Walter J. Postula, Special Asst. U. S. Atty., Washington, D.C., for defendant.
   ORDER

AUBREY E. ROBINSON, Jr., District Judge.

Upon consideration of Defendant’s Motion for Summary Judgment, the Court having carefully reviewed the record, notes that (1) the Administrative Law Judge erred as a matter of law in finding that Plaintiff’s disease did not last twelve (12) months pursuant to 42 U.S.C. § 423(d)(1). Lung cancer is a disease that can be expected to result in death, so Plaintiff has met his burden of proof under 42 U.S.C. § 423(d)(1); (2) The length of Plaintiff’s disease is not dispositive of the issue of disability. He still needs to show that he could perform no substantial gainful activity; (3) Whether Plaintiff is disabled within the meaning of the Act is a decision for the Secretary of Health, Education, and Welfare; (4) The Secretary’s decision cannot be altered by this Court unless it was not based on substantial evidence; and (5) The record clearly reflects that the Secretary’s decision that Plaintiff’s impairment was not disabling within the meaning of the Act is supported by substantial evidence.

Accordingly, it is by the Court this 27th day of September, 1979,

ORDERED, that Defendant’s Motion for Summary Judgment is GRANTED; and it is

FURTHER ORDERED, that Plaintiff’s Motion for Summary Judgment is DENIED.  