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

311 F. Supp. 614

Donald E. NICHOLSON, Plaintiff, v. Robert H. FINCH, Secretary of Health, Education, and Welfare, Defendant.

No. 2809.

United States District Court, D. Montana, Great Falls Division.

April 15, 1970.

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.

OPINION AND ORDER

RUSSELL E. SMITH, Chief Judge.

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:

1. In any case where an application for disability insurance may be treated as a petition to reopen, it should be so treated if by doing so insurance is available which would not be available if the application is treated as an original application.

2. When a petition to reopen is filed the Secretary is required to exercise his discretion as to whether he will grant the petition to reopen or not and that an applicant is entitled to the exercise of that discretion.

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:

"The first time Mr. Nicholson came to our office was in October 1963. At that time he was extremely nervous— his hands shook all the time he was at my desk and he couldn't or didn't seem to be able to remember too much about his prior work. He was not sure what income he had reptd for Social Security. Since 20/40 was questionable medical evidence was not requested.

When it appeared we could establish the necessary quarters of coverage we called Mr. Nicholson to the D/o to complete the development of his claim. The last time he was in the office was July 9th. He appeared much thinner and still acted nervous. His hands shook but not as bad as they did before. He stated the job at Safeway was secured through the Montana Bureau of Vocational Rehab. and he wanted to continue if he could." (Tr. p. 149-150)

Dr. Gelernter, a psychiatrist to whom petitioner had been referred by the Division of Vocational Rehabilitation, reported to the Division on February 26, 1964:

"As I said, I do not know what is wrong with this man except that he certainly does seem to be chronically incapacitated. I am not at all sure that he doesn't have an organic lesion as reason for his tremor, and would suggest that this be investigated at a later date should he not get symptomatic relief now." (Tr. 162)

In a letter to the Social Security Administration dated June 16, 1964, Dr. Gelernter said:

"I realize that it (his previous report) makes no definite statement as to whether he might be permanently disabled. As stated however, he had been chronically incapacitated to that time and, in all probability, the prognosis would be considered very poor." (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:

"1. The claimant last met the special earnings requirements of the Social Security Act on September 30, 1961.

2. The claimant has not established a physical or mental impairment, or combination of impairments, which rendered him unable to engage in substantial gainful activity for a continuous period beginning on or before September 30, 1961, and extending a sufficient length of time to permit the establishment of a period of disability under the application filed on January 5, 1967.

3. The claimant was not under a `disability' which would give rise to a period of disability, beginning on or before September 30, 1961, and extending within 12 months of the application filed on January 5, 1967." (Tr. 9)

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:

"An initial or reconsidered determination of the Administration or a decision of a hearing examiner or of the Appeals Council which is otherwise final under § 404.908, § 404.916, § 404.940, or § 404.951 may be reopened:

(a) Within 12 months from the date of the notice of the initial determination (see § 404.907), to the party to such determination, or

(b) After such 12-month period, but within 4 years after the date of the notice of the initial determination (see § 404.907) to the party to such determination, upon a finding of good cause for reopening such determination or decision, or * * *."

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 ...