Bostick v. Folsom

• Decision Date: 26 November 1957
• Docket Number: Civ. A. No. 1346.
• Citation: 157 F. Supp. 108
• Parties: Dorothy A. BOSTICK, Plaintiff, v. Marion B. FOLSOM, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Western District of Arkansas

157 F. Supp. 108

Dorothy A. BOSTICK, Plaintiff, v. Marion B. FOLSOM, Secretary of Health, Education and Welfare, Defendant.

Civ. A. No. 1346.

United States District Court W. D. Arkansas, Fort Smith Division.

November 26, 1957.

COPYRIGHT MATERIAL OMITTED

Bethell & Pearce, Fort Smith, Ark., for plaintiff.

Charles W. Atkinson, U. S. Atty., Robert E. Johnson, Asst. U. S. Atty., Fort Smith, Ark., for defendant.

JOHN E. MILLER, District Judge.

By this action plaintiff seeks to establish a period of disability under the Social Security Act, 42 U.S.C.A. § 416(i). Plaintiff has exhausted her administrative remedies, and brings the instant suit under 42 U.S.C.A. § 405(g), requesting the Court to review the adverse decision of the Referee of the Office of Appeals Council, Social Security Administration, Department of Health, Education and Welfare. Plaintiff sought a review of the Referee's decision by the Office of Appeals Council, and was denied such review on February 20, 1957.

The instant action was filed April 3, 1957, and in due time the Secretary of the Department of Health, Education and Welfare, in accordance with 42 U.S. C.A. § 405(g), filed a certified copy of the transcript of the administrative record, including the evidence upon which the findings and decision of the Referee are based.

The jurisdictional statute, 42 U.S.C.A. § 405(g), supra, provides, inter alia:

"* * * 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 * * *."

In a very recent case this Court set out some of the general rules governing cases of this type, and the Court feels that it would be advisable to restate those rules in this opinion. In Fuller v. Folsom, D.C.W.D.Ark., 155 F. Supp. 348, 349, the general rules were stated as follows:

"The burden of proof, both before the Referee and in the instant proceeding, is upon the plaintiff. Thurston v. Hobby, D.C.Mo., 133 F.Supp. 205; Norment v. Hobby, D.C.Ala., 124 F.Supp. 489. Not only are the findings of fact made by the Referee, if supported by substantial evidence, conclusive, but a majority of courts also extend the finality of the Referee's findings to inferences and conclusions which he draws from the evidence, if there is a substantial basis for the conclusions. Rosewall v. Folsom, 7 Cir., 239 F.2d 724; United States v. LaLone, 9 Cir., 152 F.2d 43; Social Security Board v. Warren, 8 Cir., 142 F.2d 974; Walker v. Altmeyer, 2 Cir., 137 F.2d 531; McGrew v. Hobby, D.C. Kan., 129 F.Supp. 627; Hemmerle v. Hobby, D.C.N.J., 114 F.Supp. 16; Schmidt v. Ewing, D.C.Pa., 108 F. Supp. 505; Holland v. Altmeyer, D.C.Minn., 60 F.Supp. 954.

"The Referee's conclusions of law, however, are not binding upon the Court, although they are entitled to great weight. See, Miller v. Burger, 9 Cir., 161 F.2d 992; Carroll v. Social Security Board, 7 Cir., 128 F.2d 876; Ayers v. Hobby, D.C.Va., 123 F.Supp. 115; Ray v. Social Security Board, D.C.Ala., 73 F.Supp. 58.

"And in reviewing the decision of the Referee, the Court must not abdicate its conventional judicial function. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456; Shields v. Folsom, D.C. Pa., 153 F.Supp. 733, 734."

These general rules are well established, and must be followed by the Court in the instant case.

The issue presented to the Referee was whether plaintiff had established a period of disability within the meaning of 42 U.S.C.A., § 416(i) which provides, inter alia:

"(i) (1) Except for purposes of sections 402(d), 423 and 425 of this title, 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, * * *. An individual shall not be considered to be under a disability unless he furnishes such proof of the existence thereof as may be required. * * *

"(2) The term `period of disability' means a continuous period of not less than six full calendar months (beginning and ending as hereinafter provided in this subsection) during which an individual was under a disability (as defined in paragraph (1) of this subsection). No such period shall begin as to any individual unless such individual, while under a disability, files an application for a disability determination with respect to such period; and no such period shall begin as to any individual after such individual attains the age of sixty-five. * * *

* * * * *

"* * * A period of disability shall end with the close of the last day of the first month in which either the disability ceases or the individual attains the age of sixty-five."

As noted by this Court in Fuller v. Folsom, supra, there apparently have been no generally reported decisions construing the disability freeze provision of the statute, the only decisions being memorandum decisions reported in looseleaf services. Thus the Congressional record should be helpful to the Court in construing the statute. Senate Report 1987, July 27, 1954; House Report No. 1698, May 28, 1954; and Conference Report No. 2679, August 20, 1954, may be found in Volume 3, U.S. Code Congressional and Administrative News, 1954, page 3710 et seq.

Beginning at page 3729 it is said:

"A. Need for disability freeze

"Under present law old-age and survivors insurance rights are impaired or may be lost entirely when workers have periods of total disability before reaching retirement age. Unless the worker is already permanently insured when he becomes disabled, he may have lost his fully insured status when he reaches retirement age because the entire period of his disability is included in the elapsed time which is the basis for determining his insured status. When benefit amounts are computed under present law, whether for retirement benefits or survivors benefits, his total earnings after a specified starting date and up to age 65 or death are divided by the total elapsed time, including any periods of total disability, in determining his average monthly wage, on which monthly benefits are based. A freeze of old-age and survivors insurance status during extended total disability would remove this disadvantage by preventing such periods of disability from reducing or denying retirement and survivors benefits. In addition there is available to the disabled individual the 4- or 5-year dropout period provided by this bill for all persons.

"Such a freeze provision is 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. About 200 life-insurance companies (many of the largest) operating in the United States offer a `waiver of premium' clause to individuals purchasing ordinary life insurance. It has been estimated that about half of the standard ordinary life insurance issued currently is protected through `waiver of premium' in the event of the disability of the insured.

"B. Emphasis on rehabilitation

"Your committee recognizes the great advances in rehabilitation techniques made in recent years and appreciates the importance of rehabilitation efforts on behalf of disabled persons. It is a well-recognized truth that prompt referral of disabled persons for appropriate vocational rehabilitation services increases the effectiveness of such services and enhances the probability of success. The bill is framed to carry out your committee's objective that disabled individuals applying for disability determinations be promptly referred to State vocational rehabilitation agencies, to the end that as many disabled individuals as possible may be restored to gainful work.

* * * * *

"D. Definition of disability

"Only those individuals who are totally disabled by illness, injury, or other physical or mental impairment which can be expected to be of long-continued and indefinite duration may qualify for the freeze. The impairment must be medically determinable and preclude the individual from performing any substantial gainful work. * * *

"There are two aspects of disability evaluation: (1) There must be a medically determinable impairment of serious proportions which is expected to be of long-continued and indefinite duration or to result in death, and (2) there must be a present inability to engage in substantial gainful work by reason of such impairment (recognizing, of course, that efforts toward rehabilitation will not be considered to interrupt a period of disability until the restoration of the individual to gainful activity is an accomplished fact). The physical or mental impairment must be of a nature and degree of severity sufficient to justify its consideration as the cause of failure to obtain any substantial gainful work. Standards for evaluating the severity of disabling conditions will be worked out in consultation with the State agencies. They will reflect the requirement that the individual be disabled not only for his usual work but also for any type of substantial gainful activity.

"Disability must have lasted for 6 months before it may be considered. This provision is intended to exclude from consideration temporary conditions which terminate within 6 months.

"In prescribing that the freeze apply only in the case of impairments `which can be expected to be of long-continued and indefinite duration' your committee seeks to assure that only long-lasting impairments are covered. This provision is not inconsistent with efforts toward rehabilitation since it refers only to the duration of the impairment and does not require a prediction of continued inability to work. An individual would not meet the

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