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September 23, 1975

Irving CHERNICOFF, Plaintiff,
Elliott RICHARDSON, Secretary of Health, Education and Welfare of the United States of America, Social Security Administration, Washington, D. C., Defendant

Curtin, Chief Judge.

The opinion of the court was delivered by: CURTIN

CURTIN, Chief Judge.

This is a suit brought under § 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 modifying a prior determination of the hearing examiner as to plaintiff's period of disability under § 216(i) of the Act, 42 U.S.C. § 416(i), and the amount of disability insurance to which the plaintiff is entitled under § 223 of the Act, 42 U.S.C. § 423. Plaintiff Chernicoff filed his complaint on April 7, 1972, seeking reinstatement of the hearing examiner's decision. An answer was filed on February 7, 1973 claiming that the Secretary's decision was supported by substantial evidence and was thus conclusive. Currently pending before this court are cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 The facts are not in dispute. In plaintiff's first application for disability insurance benefits, which was filed on February 26, 1968, he alleged an inability to work which began on June 10, 1967 due to a "mental condition." On June 19, 1968, the district office of the Department of Health, Education and Welfare determined that the plaintiff was not disabled and this determination was affirmed by the Social Security Administration on June 27, 1968. It was reasoned that although the plaintiff's previous mental history, as evidenced by hospitalizations and medical reports, indicated that he was a "schizophrenic" of the "chronic undifferentiated type," he was nevertheless able to work and not under a disability as defined by 42 U.S.C. § 423. His initial application was, therefore, denied on July 2, 1968.

 Plaintiff filed a second application for disability insurance on June 2, 1970, alleging the same disability and the same date of onset. On June 30, 1970 the district office again determined that the plaintiff was not disabled and this determination was affirmed on July 24, 1970. The reasoning this time was substantially the same, reiterating that plaintiff was "capable of engaging in substantial gainful activity despite significant impairment." The second application was, therefore, also denied on July 31, 1970.

 Thereafter, plaintiff filed a request for reconsideration of the denial on August 24, 1970, as the result of which a disability determination based upon "new and pertinent medical evidence" was made on October 1, 1970. This time it was noted that the plaintiff had "a long history of severe mental impairment of varying intensity over the past twelve years," so that he required "close supervision" and was "severely dependent, paranoid, delusional, hostile." Based upon this new evidence, a determination was made that plaintiff was disabled. At the same time it was determined that such disability began, and hence benefits accrued from, the time of plaintiff's last job, therefore March 16, 1970.

 Still unsatisfied, plaintiff requested a hearing on January 28, 1971, which was held on May 7, 1971. On May 11, 1971, the hearing examiner found plaintiff to be under a disability commencing on December 6, 1962. Thereafter the Appeals Council, on its own motion, reviewed the hearing examiner's decision and decided that plaintiff had been disabled during the period from June 10, 1967 through March 1969 (date of disability claimed by plaintiff in his first application), and was thus entitled to disability insurance benefits from June 1967 through May 31, 1969. Plaintiff was also found to be entitled to a second period of disability commencing March 16, 1970. The Appeals Council excluded the periods from December 6, 1962 through June 9, 1967 and from June 1, 1969 through March 15, 1970 from its findings of entitlement to disability benefits. Citing 42 U.S.C. § 416(i)(2)(F) and 20 C.F.R. § 404.1534, infra, the Appeals Council reasoned:

The assumption of inability to work is rebutted by successful performance of significant duties for remuneration. It is at this point that the burden of proof shifts to the claimant. When earnings from work activity average in excess of $140.00 a month, as was the case in 1966 and 1969, the claimant must furnish affirmative evidence that the work activity establishes that he did not have the ability to engage in substantial gainful activity . . ..
In accordance with the proceeding discussion, the Appeals Council is compelled to find that the claimant's work in 1966 and 1969 was demonstrative of his ability to engage in substantial gainful activity.

 Consequently, because plaintiff's level of earnings during 1966 and 1969 exceeded $1,680, *fn1" and because of his alleged failure to carry his burden of proving that these earnings did not demonstrate "substantial gainful activity," the Appeals Council modified the disability period set by the hearing examiner. It is this determination that plaintiff seeks to overturn.

 The question for decision by this court is whether the Secretary's decision that plaintiff was not under a disability prior to June 10, 1967 and during the period from June 1, 1969 to March 15, 1970 is supported by substantial evidence on the record as a whole, as required by 42 U.S.C. § 405(g). Gold v. Secretary of HEW, 463 F.2d 38 (2d Cir. 1972); Franklin v. Secretary of HEW, 393 F.2d 640 (2d Cir. 1968); Kerner v. Flemming, 283 F.2d 916 (2d Cir. 1960). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971).

 A disability is defined by 42 U.S.C. § 423(d)(1)(A) as:

. . . inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months; . . ..

 42 U.S.C. § 423(d)(3) goes on to say:

For purposes of this subsection, a "physical or mental impairment" is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically ...

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