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June 26, 1975

William A. PALMER, Plaintiff,
Caspar A. WEINBERGER, Secretary of Health, Education and Welfare of the United States of America, Defendant

Curtin, Chief Judge.

The opinion of the court was delivered by: CURTIN

CURTIN, Chief Judge.

This is an action brought under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Secretary of the Department of Health, Education and Welfare, dated April 25, 1973, denying plaintiff's claim for a continuous period of disability under § 216(i) of the Act, 42 U.S.C. § 416(i), and for disability insurance benefits as provided by § 223 of the Act, 42 U.S.C. § 423. The case is now before the court on the motions of both plaintiff and defendant for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 The facts in this case are not in dispute. On May 5, 1971 plaintiff filed an application for disability insurance benefits, claiming that as the result of chronic severe back pain, he had been disabled since January 1, 1971. This application was originally denied on June 24, 1971. Plaintiff filed a request for reconsideration of the initial determination and his application was again denied on September 21, 1971. Plaintiff then made a timely request for a hearing before an administrative law judge to determine his entitlement, if any, to disability benefits, which request was granted. The hearing was held on March 7, 1972, and a supplemental hearing on April 17, 1972. According to the notice of hearing sent to the plaintiff, the specific issues to be decided were:

(1) Whether you have the required insured status under the law; and if so, as of what date(s);
(2) The nature and extent of your impairments;
(3) Whether your impairment has lasted or can be expected to last for a continuous period of at least 12 months, or can be expected to result in death;
(4) Your ability to engage in substantial gainful activity since your impairment began;
(5) When your disability, if any, began.

 On July 21, 1972 the administrative law judge found that plaintiff was under a disability beginning November 18, 1971 and continuing to the date of that decision. Shortly thereafter plaintiff requested that the Appeals Council review the administrative law judge's decision because he had found the disability to exist as of November 18, 1971, and not as of January 1, 1971 as claimed by plaintiff. By letter dated November 28, 1972, the Appeals Council granted plaintiff's request for a review of the administrative law judge's decision and informed plaintiff that the Appeals Council wished to obtain additional medical evidence before evaluating plaintiff's disability. This letter also informed plaintiff that, if plaintiff so desired, he could submit additional evidence or make a further written statement as to the facts and law in his case within twenty days of the letter. In addition, plaintiff was informed that he could appear in person before the Appeals Council and present oral argument, or that he could have someone represent him and appear in person, either with him or alone, for that purpose. Plaintiff made his arguments in writing and the Appeals Council, after considering the hearing examiner's decision and the additional evidence obtained, found that plaintiff's disability did in fact begin on November 18, 1971. However, much to plaintiff's surprise, the Appeals Council also found that plaintiff's disability ceased as of January 4, 1973.

 On June 22, 1973 plaintiff filed a complaint in this court seeking review of the Secretary's decision. The motions for summary judgment thereafter filed by the parties have raised the following questions for decision:

(1) Whether the Appeals Council acted properly in considering the issue of the cessation of plaintiff's period of disability; and
(2) Whether the decision of the Secretary was based on substantial evidence.

 The court finds that the Appeals Council acted within the scope of its authority in considering the cessation of plaintiff's period of disability. Administrative agencies must follow their own rules and regulations and the court believes this was done here.

 The pertinent rules in plaintiff's case are the following. A decision made by an administrative law judge is reviewable by the Appeals Council. 20 C.F.R. 404.945. The Appeals Council may ". . . affirm, modify, or reverse the decision of the administrative law judge," 20 C.F.R. 404.950, but may not receive new evidence unless ". . . such evidence is relevant and material to an issue before it and thus may affect its decision." 20 C.F.R. 404.949. The Appeals Council does not have power commensurate with that of the administrative law judge to consider new ...

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