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May 20, 1958


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

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 ...

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