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SPIVAK v. GARDNER

December 6, 1966

Solomon SPIVAK, Plaintiff,
v.
John W. GARDNER, Secretary of Health, Education and Welfare, Defendant



The opinion of the court was delivered by: MISHLER

MISHLER, District Judge.

 This is an action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health, Education, and Welfare denying plaintiff's application for the establishment of a period of disability, and for disability insurance benefits. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, defendand moves for summary judgment on the ground that the denial of benefits is supported by substantial evidence.

 Plaintiff was born in Russia on June 30, 1898, and was naturalized as an American citizen in 1926. He stands about 5'4" tall, weighs about 185 pounds, and presently is receiving $59.70 per month in old-age benefits. His wife receives $33.20 per month.

 Procedural History

 On May 1, 1961, at the age of 62, plaintiff filed an application for the establishment of a period of disability under 42 U.S.C. § 416(i) (Supp. I, 1965), and disability benefits under 42 U.S.C. § 423 (Supp. I, 1965), alleging that an arthritic condition rendered him unable to work since September, 1957. When the local office informed him that according to his earning records he had last met the special insured status of the Act on September 30, 1955, plaintiff amended his application by claiming that he had actually become disabled early in 1954.

 On August 10, 1961, the Bureau of Old-Age and Survivors Insurance (now the Social Security Administrator, Department of Health, Education and Welfare), denied plaintiff's application on the grounds that the consultative examination failed to suggest that his impairments were severe enough to render him incapable of engaging in substantial gainful activity, and that even if plaintiff was then disabled, there was no indication in his file that he was disabled as of September 30, 1955. The Bureau reconsidered its decision pursuant to plaintiff's request, but on November 22, 1961, it affirmed its denial of his application. The Chief of the Payment Center, one Mr. Charles M. Lunz, explained the Bureau's action in a letter to plaintiff, which said in part:

 
The medical evidence, including the special examination in July, 1961 shows that you have a varicose veins condition. However, there is no indication of any severe involvement of the circulation and no limitation of motion. While your impairment may cause you some pain and discomfort, the evidence does not show that your condition is sufficiently severe to prevent you from engaging in some type of substantial gainful activity at a time when the earnings requirement was last met.

 Thereafter plaintiff continued to pursue his administrative remedies by filing a formal request for a hearing. One was held on November 6, 1962 before Lawrence P. Ashley, a Hearing Examiner for the Social Security Administration. In an opinion dated November 29, 1962, the Hearing Examiner also denied plaintiff's application, asserting that plaintiff's medical impairments fell "* * * precipitously short of the severity of the standards prescribed by statute." Record, p. 18, Hearing Examiner's Decision. After remarking that plaintiff had "meagre" annual wages from 1947 through 1950, at a time when he was only about 50 years old, the Hearing Examiner added:

 
Every right implies a responsibility; every opportunity an obligation. It was the intent of the Congress that only those individuals who have been diligent workers, those people who have had significant earnings through the years, and are subsequently precluded from working for reasons of severe medical impairments, are to be afforded the relief provided for in the "disability" provisions of the statute. Id. at 17.

 When the Appeals Council of the Bureau of Hearings and Appeals denied plaintiff's request for a review of the Hearing Examiner's decision, that decision became the final decision of the Secretary of Health, Education, and Welfare, and thereby subject to review by this Court under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g) (1964). Since plaintiff subsequently was awarded benefits before he attained the age of 65, it must have finally been determined that he was disabled, at least as of August 17, 1961. See 42 U.S.C. §§ 402(a) and 414(a)(1)(B) (1964); Record, p. 49, Transcript of hearing. Thus, the relief plaintiff actually seeks is a "disability freeze," i.e., the elimination of the years 1955-61 from his earnings record, so that such period is not considered in determining his average monthly wage, upon which the amount of his benefits is based. In order to be entitled to such relief, he must show that during those years he was unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. See 42 U.S.C. § 423(c)(2)(A) (Supp. I, 1965). In other words, the crucial issue before this Court is whether or not there is substantial evidence to support the Hearing Examiner's finding that plaintiff was not disabled as of September 30, 1955.

 The record indicates the following:

 Vocational History

 Plaintiff completed grade school, a fraction of a term of evening high school, and a course in sheet metal work. He worked as a sheet metalist for less than a year, after which he operated sewing machines in a bed quilt factory from 1920-22. Following two years in the grocery business, he began work as a painter of apartments and the interiors of buildings. He remained at that occupation from 1923-41. Then in 1942, plaintiff again operated sewing machines, this time sewing epaulets and collars on Army uniforms. He reverted to painting for one year, and then operated a blindstitch machine in a factory producing Eisenhower jackets. The latter job lasted until about late 1953, and from that time until August, 1957, he did not work, allegedly because of health reasons. For most of that period, his wife worked, however, and her income, plus four cashed-in insurance policies, supported the family. Plaintiff failed to file for either disability benefits or unemployment insurance. *fn1"

 In 1957, plaintiff got a job as a general handyman for an old people's home and hospital. There he did maintenance work: painting, plumbing, minor electrical repairs, nailing floors, etc. Plaintiff testified that he worked hard, but that his legs bothered him, and that he developed blotches on his knees. His wife added that his legs got worse from standing, and that it was difficult for him to get back and forth to work. Record, p. 23, Transcript of hearing. Furthermore, a letter from the hospital's executive director, dated June 11, 1963, stated that plaintiff was forced to leave its employ "* * * because of a bad leg condition." Record, p. 142, letter of Millie Felder. The Hearing ...


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