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HOURIHAN v. FOLSOM

United States District Court, Northern District of Illinois, E.D


May 20, 1958

FRANK A. HOURIHAN, PLAINTIFF,
v.
MARION B. FOLSOM, SECRETARY OF HEALTH, EDUCATION, AND WELFARE, DEFENDANT.

The opinion of the court was delivered by: Campbell, Chief Judge.

Plaintiff, Frank A. Hourihan, brings this action under Section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), seeking review of a final decision of the Secretary denying plaintiff his "Application to Establish a Period of Disability" under Section 216(i), 42 U.S.C.A. § 416(i).

Section 205(g) provides, inter alia, that "As part of its answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based", and that "The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, * * *". 42 U.S.C.A. § 405(g). The Secretary has filed a motion for summary judgment.

Plaintiff became sixty-five years of age in August 1952. At that time, he applied for and was awarded "old-age insurance benefits" under Section 202(a) of the Social Security Act, 42 U.S.C.A. § 402(a), which benefits he is now receiving.

On March 17, 1955, he filed with the Bureau of Old-Age and Survivors Insurance, Social Security Administration, an "Application to Establish a Period of Disability" under Section 216(i) of the Social Security Act, 42 U.S.C.A. § 416(i).

Section 216(i) was enacted in 1954 and given retroactive effect for the purpose of preserving the benefit rights for disabled. Commonly known as the "disability freeze", the provision has been described as "analogous to the `waiver of premium' commonly used in life insurance and endowment annuity policies to maintain the protection of these policies for the duration of the policyholder's disability", Sen.Rep. No. 1987, 83rd Cong., 2d Sess. (3 U.S.Code Cong. & Adm.News 1954, at page 3729). So far as material here, Section 216(i) provides:

    "(1) The term `disability' means (A) 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 to be of long-continued and indefinite duration,
  or (B) blindness; * * *. An individual shall not be
  considered to be under a disability unless he
  furnishes proof of the existence thereof as may be
  required."

On November 15, 1955, plaintiff was notified that his impairment did not meet the definition of "disability" in Section 216(i), and that no "period of disability" could be established for him. Upon request for reconsideration, the Bureau, by letter dated April 9, 1956, reaffirmed its determination of disallowance. Plaintiff thereupon requested a hearing before a referee of the Social Security Administration, and indicated his desire to appear at such hearing. On December 6, 1956, plaintiff was notified of the date fixed for the hearing (December 19, 1956) but at that time he informed the referee: "Unable to be there. I ask ruling on the basis of evidence in the record including my brief".

The record contains, among other things, plaintiff's "Application to Establish a Period of Disability", a Medical Report, dated March 24, 1955, prepared by his family doctor, and a letter to the referee, dated July 19, 1956. In his Application, plaintiff states that he first became unable to engage in substantial work in August 1951. He discloses that he completed high school and college, receiving the degrees of B.A. and M.A., and that he also took commercial courses. He states that he has been employed in a clerical position with Kellogg Switchboard & Supply Co. from May 1945 to September 1949 and with Loyola University from July 1950 to August 1951. He states that he has been unable to work thereafter because of an operation in 1903, when his hip joint was removed, and because in later years he has been unable to walk without a cane, a condition which has become progressively worse.

The Medical Report states: "I. Pertinent History. A history of osteomyelitis in 1903 left hip. Was operated on hip at that time and head of femur removed. II. Clinical Findings. Left leg about 3" shorter than right, moderate limitation of motion of left hip. Moderate muscle atrophy. Needs cane for walking. III. Diagnosis of Disabling Condition. Osteomyelitis — head of left femur — subsequent removal of femoral head and shortening of left leg. IV. Remarks. Walks with considerable difficulty. Prognosis: No improvement expected".

Plaintiff's letter of July 19, 1956, to the referee contains the following statements, including quotations from earlier letters written by plaintiff to the Bureau:

    "I was 65 years of age on August 21, 1952, and I
  had disability a full year before that date, and I
  had disability in 1949 and 1950 * * *".

    "I have had a degree of disability for several
  years and I cannot walk without a cane. This has
  handicapped me in my employment, and in several
  instances has barred me from employment. This
  handicap has increased in later years, and has
  resulted in total disability from any substantial
  gainful work. Since August 1951 I have been unable to
  obtain work and unable to do any gainful work."

    "I have physical disability and I have walked with
  a cane for more than 30 years. With proven
  qualifications and capabilities I have had much
  unemployment, being last to be hired and first to be
  fired for no proper cause".

In his decision the Referee carefully sets out the above facts and proceeds:

    "Section 216(i) provides that an individual is
  under a `disability' if he is unable to engage in any
  substantial gainful activity by reason of a medically
  determinable physical or mental impairment, which
  could be expected to be of long-continued and
  indefinite duration or to result in death. * * * To
  find that the inability to engage in any substantial
  gainful activity is due to an impairment, it must be
  shown that the impairment is sufficiently severe to
  be the cause of inability to work. Unemployment or
  unemployability for other causes is immaterial.

    "In the instant case the claimant appears to
  recognize the above, as he states, `With proven
  qualifications and capabilities, I have had much
  unemployment, being last to be hired and first to be
  fired for no proper cause.' By this statement
  claimant indicates that he has found it difficult to
  gain employment, not because his impairment prevented
  him from working and accomplishing the required work
  tasks, but due to employers being disinclined to
  employ individuals with physical impairments such as
  the claimant has."

    "From the medical evidence in this case, it
  reasonably appears that although claimant has had an
  impairment of the left lower extremity since 1903, he
  thereafter gained college degrees and worked until
  August 1951 as an accountant. * * * When last
  examined on March 24, 1955, his impairment was noted
  to be confined to the left lower extremity which was
  several inches shorter than the right, with some
  limited motion at the hip and some atrophy, and that
  he walks with a cane. Such medical report, which is
  the only report contained in the record, when taken
  together with the fact that claimant worked until
  August 1951 as an accountant, clearly indicates that
  claimant's impairment did not so seriously affect his
  overall ability as to make him unable to do any type
  of substantial gainful work that does not require
  strenuous muscular activity or much walking for at
  least six months prior to age sixty-five.

    "Claimant contends that the term, `substantial
  gainful activity' should be construed to mean the
  same as `substantial equivalent employment', which
  latter term, he alleges, is contained in the `Unfair
  Labor Practice Act', and, therefore, the test in his
  case should be whether or not his impairment prevents
  him from obtaining employment with commensurate
  earnings as he previously received prior to August
  1951. It is

  the opinion of the Referee that Congress in using the
  language, `any substantial gainful activity' clearly
  intended a test of greater severity * * *. Moreover,
  the Congress intended that inability to obtain
  certain employment because of physical impairment
  would not be the test to establish inability to
  engage in any kind of substantial gainful activity, *
  * *".

The Referee denied plaintiff's application, and his decision was affirmed by the Secretary.

Under Section 205(g) I cannot make my own appraisal of the evidence. That section expressly makes the Secretary's finding conclusive if supported by substantial evidence. The finality accorded to the Secretary's findings extends as well to the inferences from the evidence made by the Secretary if a substantial basis for them appears in the record. Rosewall v. Folsom, 7 Cir., 239 F.2d 724, 728.

Clearly, on the record before me, the Referee's finding that plaintiff's impairment did not constitute a "disability" within the meaning of Section 216(i), as he interpreted that meaning, is supported by substantial evidence.

In my opinion, the only question in this case is whether the Referee's discussion of Section 216(i) reflects a correct understanding of the standards he was required to apply in arriving at his decision. The Referee's understanding of Section 216(i) obviously was that failure to obtain employment on account of physical impairment must be distinguished from "inability to engage in any substantial gainful activity * * * by reason of such impairment"; and that what constitutes "substantial" gainful activity should not be measured by the type of gainful activity which the claimant might have engaged in prior to his disability.

I am unable to say that the Referee erred in his interpretation of Section 216(i). The Senate Report No. 1987, pp. 20-21, and the House Report No. 1698, p. 23, 83rd Congress, 2d Session, in reporting on the "disability freeze" provision before it was enacted, explained its purpose as follows:

    "Definition of disability. Only those individuals
  who are totally disabled by illness, injury, or other
  physical or mental impairment which can be expected
  to be of long continued and indefinite duration may
  qualify for the freeze * * *."

    "There are two aspects of disability evaluation:
  (1) there must be a medically determinable impairment
  of serious proportions which is expected to be of
  long-continued and indefinite duration or to result
  in death, and (2) there must be a present inability
  to engage in substantial gainful work by reason of
  such impairment * * *. The physical or mental
  impairment must be of a nature and degree of severity
  sufficient to justify its consideration as the cause
  of failure to obtain any substantial gainful work.
  Standards for evaluating the severity of disabling
  conditions will be worked out in consultation with
  the State agencies. They will reflect the requirement
  that the individual be disabled not only for his
  usual work but also for any type of substantial
  gainful activity."

I hold that the Referee did not err in his interpretation of Section 216(i) and that his finding that plaintiff's impairment did not constitute a "disability" within the meaning of Section 216(i) is supported by substantial evidence in the record.

Plaintiff has filed a motion to join the American Medical Association, etc., as plaintiff herein. The American Medical Association is not shown to have a joint interest with the plaintiff, and is not a necessary party herein, accordingly said motion is hereby denied.

Defendant's motion for summary judgment is hereby granted. The decision of the Secretary is affirmed. Cause is dismissed.

19580520

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