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October 10, 1966

Gwen S. OSSERMAN, Plaintiff,
John W. GARDNER, Secretary of Health, Education and Welfare, Defendant

The opinion of the court was delivered by: TYLER

TYLER, District Judge.

 On February 24, 1964, Mrs. Gwen S. Osserman ("claimant") filed an application for disability insurance benefits under the provisions of the Social Security Act, as amended. *fn1" In fixing the benefit rate, the Bureau of Old Age & Survivors Insurance of the Social Security Administration did not give credit for certain earnings received by the claimant during the period from September 6, 1957, through September 9, 1960, for services performed by her as a regular school teacher member of the New York City Teachers' Retirement System. On appeal from this determination, a Hearing Examiner of the Social Security Administration, after a hearing, found that the claimant's services for the period in question did not constitute "employment" within the context of the Social Security Act. *fn2"

 Upon request of claimant, the Appeals Council reviewed the findings of the Hearing Examiner and affirmed his decision. Under these circumstances the decision of the Appeals Council is the final decision of the Secretary of Health, Education and Welfare for the purposes of judicial review. 42 U.S.C.A. ยง 405(g); Pirone v. Flemming, 183 F. Supp. 739 (S.D.N.Y.1959), aff'd, 278 F.2d 508 (2d Cir. 1960).

 Following the exhaustion of her administrative remedies, Mrs. Osserman instituted an action under Section 205(g) of the Act *fn3" in this court to obtain a review of the Secretary's decision. As provided by the Act, and as a part of his answer, the Secretary filed a certified copy of the transcript of the record, including the evidence upon which the findings and decision complained of were based. On the basis of the complaint, answer, and administrative record, both parties have moved for summary judgment.

 The basic facts, as found by the Hearing Examiner, are simple and undisputed. On September 6, 1957, Gwen Osserman began employment as a regular teacher in the New York City public school system. On the same day, all regular teachers in the system were handed a "Social Security Application Form" on which they were to indicate whether or not they desired to be covered by Federal Social Security.

 A two-step procedure as prescribed by the Act at that time was followed by New York State in order for individual teachers to be covered by the Social Security Act. Upon completion of their application forms, the teachers were divided into two retirement systems, one of which contained those desiring Social Security "coverage" and the other of which embraced those who did not. *fn4" Then, after notice of at least ninety days, those in the "covered" retirement system participated in a referendum to indicate whether or not they wanted the system itself to be covered. *fn5" This, of course, amounted to a pro forma election in that those voting had already indicated they wanted coverage. Parenthetically, it should be noted that a 1957 amendment to the Act *fn6" abolished the necessity of this two-step process. *fn7" However, there is no issue as to the propriety of the procedure followed in this case.

 On September 6, Mrs. Osserman elected not to join the covered retirement system and indicated this negative decision upon her application form. Accordingly, she was placed in the non-covered system.

 The required referendum was then scheduled for December 10, 1957. Shortly before that time, Mrs. Osserman changed her mind and decided that she did want to be covered. She thereupon filled out a new application in which she indicated her desire for coverage. The completed new application was delivered to the clerk of Public School No. 72, the school to which she had been assigned. *fn8" From just prior to December 10, 1957, and into the year 1961, Mrs. Osserman believed that she was covered by the Social Security Act. Moreover, she never received any notice to the contrary.

 In 1958, the Social Security Act was amended to allow members of non-covered retirement systems to be covered by the Act. *fn9" Accordingly, the New York City Board of Education extended a "second chance" for coverage to those eligible in June, 1959 and December, 1959. Notices of these "second chances" were supposedly given to all teachers in the non-covered system.

 During the period when the "second chances" were offered, Mrs. Osserman was on maternity leave. She was still a member of the school system, however, and thus was eligible to receive notices of the "second chances" if she were considered not covered. The Hearing Examiner found that no such notices were ever sent.

 In April, 1961, Mrs. Osserman entered a claim for benefits for the period under discussion. The claim was denied. The administrative proceedings already outlined followed.

 The Hearing Examiner's decision was two-pronged. First, he held that, on the basis of the evidence presented,

"the delivery by the claimant in November or December 1957 to the school clerk of what, in essence, was a written request for transfer to the deemed separate retirement system composed of positions of members of the retirement system who desired coverage, was an act of no effect, in relation to obtaining social security coverage, in the absence of authority, at the time, permitting an ...

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