United States District Court, Northern District of Illinois, E.D
December 13, 1974
PEARL R. JOHNSON, PETITIONER,
CASPAR WEINBERGER, SECRETARY OF HEALTH, EDUCATION AND WELFARE, RESPONDENT.
The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes pursuant to the report and recommendations
of a magistrate in accordance with Rule 1, subd. D (2)(a)(i)
of the Magistrate Rules of the Northern District of Illinois.
This is an action brought pursuant to 42 U.S.C. § 405, 1395,
for judicial review of a final decision of the Secretary of
Health, Education and Welfare which denies payment of surviving
divorced mother's benefits, disabled wage earner benefits and
disabled widow's insurance benefits; 42 U.S.C. § 402 and 423.
The magistrate recommends that the final decisions of the
Secretary be affirmed and that this Court enter an order
granting defendant's motion for summary judgment.
It is the opinion of this Court that the report and
recommendations of the magistrate are proper.
PETITIONER'S FACTUAL BACKGROUND
1. Pearl R. Johnson, petitioner was born December 13, 1913
in Minnesota and presently resides in Elmhurst, Illinois. She
was first married in 1936, which ended in divorce five years
later. She married the deceased wage earner, Steve Johnson, on
July 13, 1946. Approximately fifteen months later, on October
25, 1947, they were divorced.
2. During the marriage of petitioner and wage earner, one
son, Steven Gerald, was born, on September 15, 1946.
Subsequent to their divorce proceedings, another son, Keith
Karl, was born to petitioner on October 6, 1949. The wage
earner died in an airplane crash on October 4, 1958.
3. By the terms of the divorce decree, the petitioner waived
her right to alimony and received $1,900 in cash and the
right, title and interest in and to certain real estate in
Villa Park, Illinois. Petitioner agreed to pay court costs,
fees, and all existing current debts totally $569. Her
husband, the wage earner, was ordered to pay for the support,
maintenance and education of their minor child Steven in the
amount of twenty dollars per week for fifty-two weeks and
thereafter fifteen dollars per week.
4. Petitioner received $6,000 from a probable settlement,
$7,000 from a whiplash personal injury settlement, and
currently receives disability payments from the State of
SUMMARY OF PRIOR ADMINISTRATIVE PROCEEDINGS
Petitioner has filed several applications for support
benefits since the death of her second husband. She has
requested statutory status as a:
1. divorced mother for survivor's insurance
benefits pursuant to 42 U.S.C. § 402;
petitioner filed an application for benefits on
November 5, 1965 wherein it is claimed the
deceased wage earner contributed $4,800 per
year to the children and to her, contributed
twenty to thirty dollars weekly for groceries,
and made irregular house payments;
2. disabled wage earner wherein the petitioner
claims on her application, filed October 10,
1969, that she is within the recognized
status of disability since April, 1966,
because of chronic emphysema and whiplash;
3. disabled widow for insurance benefits from
the deceased wage earner's account whereby
the petitioner claimed double lung collapse
since July, 1958 and chronic whiplash.
The administrative decisions affecting these three
applications for benefits demonstrate petitioner's failure to
satisfy statutory status requirements.
Petitioner's disabled wage earner application of October 10,
1969 was disallowed because of insufficient earning quarters
and that petitioner's physical impairment was not of such
severity as to preclude her from substantial gainful economic
Petitioner's disabled widow's application was denied because
of petitioner's failure to prove that she had received either
one-half support from the deceased wage earner at the time of
his death, or had received substantial contributions from him
based on a written agreement. A reconsideration of the
previous decision held further that petitioner had not met the
statutory requirements of being married twenty years to the
deceased wage earner prior to the date of divorce. 42 U.S.C. § 416
Petitioner's application for surviving divorced mother
benefits was denied because petitioner had not been married to
the wage earner for the required twenty years and that
petitioner failed to demonstrate that she received one-half of
her support from her former husband at the time of his death
or that petitioner had a written agreement with the deceased
wage earner which provided for her support, or a court order
requiring the deceased wage earner to make support payments
for the benefit of petitioner.
Petitioner requested rehearings on each application. The
hearing examiner affirmed the prior disability decisions and
the surviving divorced mother decision.
On April 1, 1968, petitioner commenced requests for review
by the Appeals Council. The Appeals Council determined that
the decisions of the hearing examiner did not warrant
modification except as to the application for disabled wage
earner benefits. The Appeals Council concluded that
petitioner's application for disability benefits deemed within
the statutory status of "disability" and that petitioner was
to receive federal support commencing after March 9, 1971.
On October 10, 1969, petitioner requested a second review by
the Appeals Council on her surviving divorced mother
application. This request was denied
as was her second request for a second review on December 27,
On May 21, 1973, petitioner filed a petition requesting
review of the decisions of the agencies under respondent's
direction. In the petition for review, petitioner asserts:
1. petitioner is within the statutory status of
"disability" under 42 U.S.C. § 423 because
medical examinations and opinions confirm a
severe physical disability and the State of
Illinois determined petitioner to be disabled;
2. petitioner is within the requirements of a
surviving divorced mother under 42 U.S.C. § 402
because the deceased wage earner
contributed over one-half of her support during
a specified period, because he did assume
financial responsibility to her sons pursuant
to a court order, and because he became
obligated to provide support to petitioner
through a loan;
3. petitioner deserves disability and surviving
divorced mother's benefits because the
respondent's agencies' decisions were
arbitrary and capricious and an abuse of
Respondent replied to the petition for review by filing a
motion for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure. U.S. Magistrate Olga Jurco ruled on
February 21, 1974, that respondent's motion for summary
judgment was of merit and recommended that petitioner's
petition for review be dismissed.
PETITIONER FAILS TO ADEQUATELY DEMONSTRATE THAT
RESPONDENT'S FINAL DECISION WAS ARBITRARY, CAPRICIOUS AND
AN ABUSE OF ADMINISTRATIVE DISCRETION
First, petitioner contends that the Appeals Council erred in
limiting wage earner disability payments to the period
commencing after March 9, 1971. Petitioner asserts that her
physical impairments came within statutory status of
"disability" in April, 1966.
The instant issue is whether the Secretary's modified
finding is supported by substantial evidence in the record as
The standard for review of agency decisions under the Social
Security Act, 42 U.S.C. § 402, and 423, is limited to a
determination of whether substantial evidence is contained in
the record as a whole which would support the Secretary's
decision. Payne v. Weinberger, 480 F.2d 1006, 1007 (5th Cir.
1973); Ingram v. Richardson, 471 F.2d 1268 (6th Cir. 1972);
Jackson v. Richardson, 465 F.2d 998 (9th Cir. 1972); Lahr v.
Richardson, 328 F. Supp. 996, 997 (N.D.Ill. 1971), aff'd
476 F.2d 1088 (7th Cir. 1973); Chandler v. Celebrezze, 225 F. Supp. 1001,
1002 (S.D.Ill. 1964). It is also well established that
this standard prohibits a court from making its own appraisal
of the evidence, but rather, instructs the court to critically
analyze the justifiability of the Secretary's appraisal of the
evidence in the record. Degner v. Celebrezze, 317 F.2d 819 (7th
Cir. 1963); Chandler v. Celebrezze, supra.
To determine a claimant's qualifications or lack of
qualifications for statutory "disability" status under
42 U.S.C. § 423(d), the Court considers:
1. clinical findings of treating and examining
physicians on the existence of a medically
determinable physical or mental impairment;
2. opinions of treating or examining physicians
on subsidiary questions of facts relating to
the severity of the medically determinable
3. testimony of the claimant, corroborated by
his family and neighbors concerning the
effect of the medically determinable
4. evidence of the claimant's educational
background, work history and present age.
See Hope v. Secretary of Health, Education and Welfare,
347 F. Supp. 1048 (E.D.Tex. 1972); Rolenaitis v. Richardson,
336 F. Supp. 1235 (E.D.Pa. 1972) aff'd 475 F.2d 1396.
According to 42 U.S.C. § 423(d)(2)(A), (B), the Secretary
was to determine whether the physical condition of petitioner
prior to March 9, 1971 was:
". . . of such severity that he is not only
unable to do his previous work but cannot,
considering his age, education, and work
experience, engage in any other kind of
substantial gainful work which exists in the
national economy, regardless of whether such work
exists in the immediate area in which he lives,
or whether a specific job vacancy exists for him,
or whether he would be hired if he applied for
It is the finding of this Court that the Secretary did not
abuse administrative discretion in deciding that petitioner
was not severely disabled prohibiting any substantial gainful
occupation prior to March 9, 1971.
Petitioner was fifty-nine years old when the instant
petition was filed. She had finished the sixth grade and had
attended night school. She was employed, between 1961 and
1967, as a domestic or housekeeper in various households
performing tasks of dusting, washing dishes, making beds, etc.
She admits that she currently performs such household tasks at
home and in addition, often drives her car and goes fishing
Prior to March 9, 1971, petitioner has a medical history of
spontaneous pneumothorax of the right lung and spontaneous
lung collapse. However, this Court does not disagree with
respondent that this medical condition disabled the petitioner
to such a severe degree as to prohibit her from substantial
gainful occupational activity prior to March 9, 1971. See
Jeralds v. Richardson, 445 F.2d 36 (7th Cir. 1971); Henry v.
Gardner, 381 F.2d 191 (6th Cir. 1967); Adams v. Flemming,
267 F.2d 901 (2nd Cir. 1960); Gotshaw v. Ribicoff, 307 F.2d 840
(4th Cir. 1962).
Therefore, petitioner did not come within the statutory
definition of a disabled wage earner or as a disabled widow
under 42 U.S.C. § 423 prior to March 9, 1971.
Second, petitioner claims that respondent erred in
considering her November 5, 1965 application as an application
for surviving mother's benefits instead of surviving divorced
Assuming that respondent did err in considering petitioner's
application for divorced mother's benefits under 42 U.S.C. § 402,
petitioner's application for surviving divorced wife's
benefits is also without merit.
A surviving divorced wife is defined by 42 U.S.C. § 416(d)(2)
as a woman divorced from an individual who has died, but only
if she had been married to the individual for a period of
twenty years immediately before the date the divorce became
effective. This definition is applied by 42 U.S.C. § 402 as a
requirement for qualifications for support payments.
The Secretary determined that the petitioner married the
deceased wage earner on July 13, 1946 and approximately
fifteen months later, on October 25, 1947, they were divorced.
The Secretary included in his various decisions that
petitioner could not qualify as a surviving divorced wife
because of the failure of petitioner to fulfill the marriage
duration requirements of 42 U.S.C. § 402.*fn2
It is apparent that the Secretary ruled on both surviving
divorced mother and
surviving divorced wife issues. This occurred because
petitioner's application for § 402 benefits implied both
The Secretary concluded that petitioner did not satisfy the
surviving divorced mother status because of her failure to
demonstrate sufficient support by the deceased wage earner.
Even though petitioner fails to satisfy the marriage
duration requirement for surviving divorced wife status, her
contentions alleging fulfillment of the support requirements
Petitioner contends that the deceased wage earner
contributed over one-half of her support prior to his death.
However, the record does not contain sufficient evidence to
corroborate the allegation in the application that she
received $4,800 from the wage earner in the year prior to his
death. The fact that he maintained two households, was in
debt, and had to sign a note for a loan shortly prior to his
death, mitigate against a conclusion that he contributed
regular monthly payments in the amounts alleged by the
Petitioner alleges that an oral agreement for support
payments existed between her and the deceased wage earner,
which satisfies 42 U.S.C. § 402. However, § 402 requires a
written agreement to satisfy the qualification of support.
Finally, petitioner contends that a court order existed
requiring the deceased wage earner to maintain support.
However, this court order specified an obligation of the
deceased wage earner to support his child, and not the
petitioner. Since the statute requires a court order for the
claimant's support, petitioner fails to satisfy this
Therefore, it is the opinion of this Court that the report
and recommendations of the magistrate are proper and just.
Accordingly, it is hereby ordered that the final decision of
the Secretary is affirmed and the respondent's motion for
summary judgment is granted.