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SWEENEY v. SECRETARY OF HEALTH

June 25, 1974

PATRICK A. SWEENEY, Plaintiff,
v.
SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

 NEAHER, District Judge.

 Plaintiff seeks review of a final decision of the defendant Secretary of Health, Education and Welfare ("H.E.W.") which denied in part plaintiff's application for a period of disability under § 216(i) of the Social Security Act ("the Act"), 42 U.S.C. § 416(i), and for disability insurance benefits under § 223(a) of the Act, 42 U.S.C. § 423(a). Defendant has moved for judgment on the pleadings on the basis of the certified administrative record and plaintiff has similarly cross-moved.

 The facts and history of this case, and even the factual inferences to be drawn therefrom, are not in dispute. Plaintiff, an attorney, suffered various bone fractures in an automobile accident on January 9, 1969, and did not return to work until February 1970. His application was not filed, however, until January 21, 1971. Official Transcript at 37 (hereinafter "Tr. [*]"). On April 2, 1971, the application was granted by the Bureau of Disability Insurance, Social Security Administration ("S.S.A.") (Tr. 38-39), but only for a closed period of disability of three months beginning in January 1970. Plaintiff thereafter requested reconsideration of his award, alleging his belief that he was entitled to an award covering July-December, 1969. Tr. 40-41. He alleged (1) that during almost all of 1969 he was confined to the hospital or in a cast and hence was unable to apply for benefits; (2) that he was unaware of disability benefits until advertised on television; and (3) that when he did apply, he was discouraged by the interviewer from making a claim. The Bureau of Disability Insurance, in its reconsideration, determined that the prior decision was correct, citing § 223 of the Act, 42 U.S.C. § 423. Tr. 42-44. *fn1"

 Thereafter, on November 18, 1971, plaintiff filed a Request for Hearing before the Bureau of Hearings and Appeals, S.S.A., and a hearing was held before an administrative law judge on September 21, 1972. The judge determined that a "substantive condition precedent" to the granting of benefits is the filing of an application, § 223(a) (1) (C) of the Act, 42 U.S.C. § 423(a) (1) (C). Tr. 9. Finding a clear congressional intent to limit the payment of retroactive benefits in § 223(b) of the Act, 42 U.S.C. § 423(b), he rejected plaintiff's arguments that he was physically unable to apply for benefits and that the benefits were inadequately publicized. His conclusion was that even though plaintiff would have otherwise been entitled to benefits for the period July-December 1969, the filing of his application more than 12 months thereafter precluded an additional award as a matter of law. Tr. 9-11.

 Plaintiff's request for review of the administrative law judge's decision was timely filed, and on November 22, 1972, the Appeals Council, Bureau of Hearings and Appeals, found the decision of the judge to be correct, denied review, and left his decision standing as the final decision of the Secretary. 20 C.F.R. § 404.940.

 Plaintiff timely filed this action on January 17, 1973, in substance alleging that the Secretary's decision was erroneous as a matter of law. Thereafter the instant motions were filed, and the matter submitted for decision February 15, 1974. The court has reviewed each of the four points raised by plaintiff on appeal and has concluded that they are without merit and that the decision of the Secretary must be affirmed. Plaintiff's claims are treated seriatim.

 I.

 In his decision, the administrative law judge cites several cases in support of his conclusion that plaintiff, as a matter of law, is not entitled to a retroactivity period greater than the twelve months prescribed in § 223(b). Ewing v. Risher, 176 F.2d 641, 644 (10 Cir. 1949); Bender v. Celebrezze, 332 F.2d 113 (7 Cir. 1964); Flamm v. Ribicoff, 203 F. Supp. 507 (S.D.N.Y. 1961); Kurz v. Celebrezze, 225 F. Supp. 528, 530 (E.D.N.Y. 1963). To those defendant's brief added Coy v. Folsom, 228 F.2d 276 (3 Cir. 1955); Taylor v. Flemming, 186 F. Supp. 280 (W.D. Ark. 1960).

 Essentially it is plaintiff's first point that all these cases are not in point, easily distinguishable, and that, to the extent they hold that strict compliance with the Act precludes the use of equitable principles to govern its interpretation, they are "contrary to the prevailing view that the Social Security Act should be liberally construed. Collins v. Celebrezze, 250 F. Supp. 37 (S.D.N.Y. 1966); Morris v. Celebrezze, 238 F. Supp. 717 (D.C.N.Y., 1965); Stewart v. Cohen, 309 F. Supp. 949 (D.C.N.Y., 1970)." Plaintiff's Memorandum of Law 5-6.

 Plaintiff's second point is an elaboration of the first, that § 223 requires a liberal interpretation, and he points to cases which "are at least precedent for this court to construe the statute truly liberally." Id. at 6, citing Tuck v. Finch, 430 F.2d 1075 (4 Cir. 1970); Dean v. Flemming, 180 F. Supp. 553 (E.D. Ky. 1959); and Phillips v. Consolidation Coal Company, 325 F. Supp. 1015 (E.D. Tenn. 1970), aff'd, 443 F.2d 62 (6 Cir. 1971).

 While plaintiff is technically correct in his review of the cases cited by the defendant, to the effect that none of them arose under an application for disability insurance benefits or a period of disability, it by no means follows that their learning may be readily ignored by a mere reference to the principle of liberal construction. The word "construction" itself implies, in this context, the resolution of an ambiguity, and the liberal construction rule means nothing more or less than that real ambiguities in the meaning of the Act should, as a general rule, be decided in favor of the claimant. Where, however, there can be no doubt as to the import of the statutory requirements, there is no room for "construction," be it liberal or otherwise. See Ewing v. Risher, supra, 176 F.2d at 644; Taylor v. Flemming, supra, 186 F. Supp. at 283-84; Donnelly v. Gardner, 286 F. Supp. 288, 289 (W.D. Wis. 1968).

 While the court is mindful of the fact that the cases heretofore cited arose in connection with other time periods under the Act, we are of the opinion that the administrative law judge's straightforward application of the literal statutory requirements of § 223(b) to this case, without regard to equitable considerations, was correct. Other courts have applied those precedents to § 223(b) and reached the same result. Parker v. Finch, 327 F. Supp. 193 (N.D. Ga. 1971); Tillman v. Richardson, CCH Unemp. Ins. Rep. para. 16,966 (M.D. Ala. Nov. 19, 1971). Further, cases arising under § 202(a), whose structure is very close to that of § 223(a), have concluded that it was Congress' intent that the filing of an application be a condition precedent to payment of benefits. Bender v. Celebrezze, supra, 332 F.2d at 115-16; Coy v. Folsom, supra, 228 F.2d at 278-79. See McNally v. Flemming, 183 F. Supp. 309, 313 (D.N.J. 1960).

 Moreover, there seems no doubt that equitable considerations are irrelevant. In Flamm v. ...


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