Nicholson v. Finch, 2809.
Decision Date | 15 April 1970 |
Docket Number | No. 2809.,2809. |
Citation | 311 F. Supp. 614 |
Parties | Donald E. NICHOLSON, Plaintiff, v. Robert H. FINCH, Secretary of Health, Education, and Welfare, Defendant. |
Court | U.S. District Court — District of Montana |
Hoyt & Bottomly, Great Falls, Mont., for plaintiff.
Otis L. Packwood, U. S. Atty., Billings, Mont., James B. Patten, Asst. U. S. Atty., Butte, Mont., for defendant.
Petitioner seeks to review the action of the Appeals Council of the Social Security Administration denying his claim for disability insurance under the Social Security Act.
The Court has decided as a matter of law that:
The factual background out of which these holdings arise is: On June 12, 1961, petitioner was admitted to the State Hospital for the Insane with a severe psychiatric impairment. When discharged on July 17, 1961, he was mildly improved with a prognosis of fair to poor. The evidence of petitioner and his wife was to the effect that petitioner was unable to do any substantial work in 1961 and 1962. A social security report of interview reads:
Dr. Gelernter, a psychiatrist to whom petitioner had been referred by the Division of Vocational Rehabilitation, reported to the Division on February 26, 1964:
(Tr. 162)
In a letter to the Social Security Administration dated June 16, 1964, Dr. Gelernter said:
(Tr. 160)
At the time of the interview of February 24, 1964 Dr. Gelernter prescribed medication for petitioner. In May of 1964 petitioner started working for Safeway Company at a salary of $70.00 per week doing odd jobs. He kept this employment until September of 1965. From May 6, 1966 until May 14, 1966, and September 23 to September 30, 1966 he worked for Western Maintenance Company. He was then employed from October 21, 1966 until November 25, 1966 at the State Hospital for the Insane.
The Appeals Council, in finally rejecting the application, made these findings:
If the application of June, 1967, is treated as a new application, then the findings are supported by the evidence, regardless of petitioner's present condition which the Appeals Council did not determine, and the result reached is correct because of the finality of the initial determination and because of the 12 months bar imposed by 42 U.S.C.A. § 416 (i) (2) (E).
20 C.F.R. § 404.957 provides in part:
In this case petitioner filed an application for disability insurance on October 24, 1963, alleging a disability which began July 1, 1961. This application was administratively denied November 2, 1964. The hearings examiner treated the application of January 5, 1967 as a petition to reopen the application of October, 1963, and found good cause for so doing. The decision of the Appeals Council does not so treat the 1967 application and rather clearly indicates that that application was treated as an initial application. The Appeals Council used these words, "It is the decision of the Appeals Council that, based on his application filed on Jan. 5, 1967 claimant is not entitled to a period of disability."
The manner in which the 1967 application is treated is of great importance in this case. When the application was filed in 1963 petitioner, as determined by both the Hearings Officer and the Appeals Council, met the special earnings requirements of 42 U.S.C.A. § 416 (i) (3) (B) because he had 20 quarters of coverage out of the preceding 40 quarter period. By the time the application was denied there was evidence from which it might well have been found that petitioner was disabled for a continuous period beginning on the date of the commitment to the ...
To continue reading
Request your trial-
Ruiz-Olan v. Secretary, Dept. of Health, Ed. and Welfare, RUIZ-OLA
...application as a petition to reopen the Secretary's prior decision. Lopez v. Secretary,342 F.Supp. 778 (D.P.R.1972); Nicholson v. Finch, 311 F.Supp. 614, 615 (D.Mont.1970). 20 C.F.R. § 404.957 provides that a decision 'may be reopened . . . (b) . . . upon a finding of good cause. . . .' 20 ......
-
Duns v. Heckler
...not exercised her discretion. Claimant has a right to have her petition considered and responded to by the Secretary. Nicholson v. Finch, 311 F.Supp. 614 (D.Mont.1970). We therefore remand to the Secretary claimant's request to reopen her 1979 application and instruct the Secretary to exerc......
-
Schiel-Leodoro v. Berryhill
...motion for submission on the briefs is granted. 2. Schiel-Leodoro's arguments that HALLEX I-2-9-10 and Nicholson v. Finch, 311 F. Supp. 614 (D. Mont. 1970), make reopening mandatory fail because neither is binding on this court. 3. Even if the court were to expand the "manifest injustice" e......