Bailey v. Ribicoff, Civ. A. No. 1096.
| Decision Date | 07 July 1962 |
| Docket Number | Civ. A. No. 1096. |
| Citation | 206 F. Supp. 212 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | Riley BAILEY, Plaintiff, v. Abraham RIBICOFF, Secretary of Health, Education, and Welfare, Defendant. |
Clay S. Crouse, Beckley, W. Va., and Robert E. Lusk, Williamson, W. Va., for plaintiff.
Harry G. Camper, Jr., U. S. Atty., Huntington, W. Va., for defendant.
This is an action under 42 U.S. C.A. § 405(g) of the Social Security Act to review a final decision of the Secretary of Health, Education and Welfare. That decision disallowed plaintiff's claim for a period of disability under 42 U.S.C.A. § 416(i) and for disability insurance benefits under 42 U.S.C.A. § 423, and the jurisdiction of this court is limited to a determination of whether that decision was based on substantial evidence. 42 U.S.C.A. § 405(g). The court is precluded from having a hearing de novo. See Carpenter v. Flemming, D.C.N.D. W.Va., 178 F.Supp. 791.
The Act, 42 U.S.C.A. § 416(i), provides for eliminating from a person's earning record the period during which he was under a "disability" in computing his average monthly wage upon which the amount of his benefit is based. A discussion of the elements of this statutory disability is contained in Pruitt v. Flemming, S.D.W.Va., 182 F.Supp. 159. There is no dispute here concerning plaintiff's "insured status" under the Act and it suffices to say that plaintiff will have this "insured status" through June 30, 1963.
On November 8, 1960, plaintiff filed an application for a period of disability and/or disability insurance benefits, alleging that he first became unable to work on June 25, 1958, (at age 40) due to "Silicosis, deaf in rt. ear, hemorh., back trouble (fractured three times)." Following unfavorable administrative determinations, plaintiff requested a hearing by a hearing examiner, waived his right to appear and give evidence, and requested a decision on the evidence before the hearing examiner. On July 28, 1961, the hearing examiner rendered his decision, holding that plaintiff was not under a disability as defined in the Act. On October 13, 1961, the Appeals Council denied plaintiff's request for review of the hearing examiner's decision and that decision thus became the "final decision" of the Secretary, subject to the present judicial review.
The issue in this case is whether there is substantial evidence in the record to support the Secretary's decision that plaintiff, having the burden of proof, did not show himself to be unable to engage in any substantial gainful activity as a direct result of a...
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Ray v. Celebrezze, 9554.
...his average monthly wage upon which the amount of his benefits would be based when he reached retirement age. Bailey v. Ribicoff, 206 F. Supp. 212 (S.D.W.Va.1962). To establish the disability under 42 U.S.C.A. § 416(i) (1), it was incumbent upon Ray to prove a medically determinable physica......