Cucuzzella v. Weinberger, Civ. A. No. 74-209.

• Decision Date: 17 June 1975
• Docket Number: Civ. A. No. 74-209.
• Citation: 395 F. Supp. 1288
• Parties: Mary CUCUZZELLA for Lee J. Cucuzzella, Plaintiff, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — District of Delaware

395 F. Supp. 1288

Mary CUCUZZELLA for Lee J. Cucuzzella, Plaintiff, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant.

Civ. A. No. 74-209.

United States District Court, D. Delaware.

June 17, 1975.

Jeffrey S. Goddess, Tybout & Redfearn, Wilmington, Del., for plaintiff.

Alan J. Hoffman, Asst. U. S. Atty., Wilmington, Del., Stephanie W. Naidoff, and Roland L. Vaughan, Jr., Dept. of H. E. and W., Philadelphia, Pa., for defendant.

OPINION

STAPLETON, District Judge:

This is an action brought under 42 U. S.C. § 405(g) for review of a decision of the Secretary of Health, Education and Welfare determining that plaintiff's son, Lee Cucuzzella, ceased to be entitled to disability payments under the Social Security Act as of July 1967, and that benefits paid between that date and December 1971, amounting to $6,400.70, must be returned to the government. Plaintiff disputes both of the Secretary's conclusions. The matter is now before me on the Secretary's motion for summary judgment. For the reasons which follow, I conclude that the Secretary's determination as to eligibility must be sustained, but that his decision to require repayment of benefits must be vacated and remanded.

In this proceeding, I am bound by the statutory stricture that "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). "Substantial evidence" has been interpreted to mean "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 38 L.Ed.2d 842 (1971).

I. ELIGIBILITY.

Certain things are not in dispute. In June 1963, shortly before his 18th birthday, Lee Cucuzzella was severely injured in an automobile accident and became eligible for child's insurance benefits under his deceased father's Social Security account. 42 U.S.C. § 402(d)(1)(A), (B)(ii), (C)(ii). Such eligibility terminates at the end of the second month following the month in which the disability ceases. 42 U.S.C. § 402(d)(1) (G). "Disability" is defined in 42 U.S.C. § 423(d). As pertinent here, it means an "inability to engage in any substantial gainful activity" as that phrase is further defined by regulation. The regulations provide in part that:

An individual's earnings from work activities averaging in excess of $140 a month shall be deemed to demonstrate his ability to engage in substantial gainful activity unless there is affirmative evidence that such work activities themselves establish that the individual does not have the ability to engage in substantial gainful activity under the criteria in other regulations.

20 C.F.R. § 404.1534(b).

The statute provides an exception to this rule, in the form of a "period of trial work." 42 U.S.C. §§ 423(d)(4); 422(c). During this period, which encompasses an individual's first nine months of work (whether or not consecutive) after becoming disabled, his services are "deemed not to have been rendered . . . in determining whether his disability has ceased in a month during such period." § 422(c)(2) (emphasis added). These services may, however, be considered in determining whether his disability ceased thereafter. 20 C.F.R. § 404.1536(a).

A. Cessation.

After some recovery, Lee began to work in August 1966, and had completed nine months of work by May 1967. (Tr. 19). His average earnings during that period were in excess of $140 per month. (Tr. 20, 60, 160). The Administrative Law Judge, whose decision, summarily approved by the Appeals Council, "stands as the final decision of the Secretary" (Tr. 4), found that the work Lee performed was not "sheltered" or "made work" (Tr. 20), and concluded, based on the regulatory presumption quoted above, that Lee's disability had ceased as of the end of his trial work period. (Tr. 24).

Plaintiff agrees that Lee's second job, lasting from February 1967 through May of that year, was substantial gainful activity, but contends that the first job was not. Plaintiff asserts that the evidence shows that Lee's first employer drove him to and from work, and that he was laid off after five and one-half months because of inability to perform satisfactorily. I cannot, however, find any testimony to that effect anywhere in the record.¹ There is, on the other hand, testimony by the plaintiff and by her son, Vincent Cucuzzella, that Lee's first job was necessary to the operation of his employer's business, that the establishment did not specialize in hiring handicapped people, that Lee worked a regular forty hour week, and that he lost little time from the job. (Tr. 60-61, 81). There is also evidence that he left voluntarily. (Tr. 162).

Plaintiff also contends that "uncontradicted medical evidence" rebuts the presumption of non-disability arising out of Lee's $140 per month earnings. But this misconstrues the applicable regulations, which provide that the presumption is rebuttable only by "affirmative evidence that such work activities themselves establish that the individual does not have the ability to engage in substantial gainful activity . . .." 20 C.F.R. § 404.1534(b) (emphasis added). The presumption cannot be rebutted by medical evidence alone, however undisputed.² Resnikoff v. Gardner, 290 F.Supp. 638 (N.D.Fla. 1968), and Shutt v. Secretary of H.E.W., 490 F.2d 43 (5th Cir. 1974), cited by plaintiff, are not to the contrary. Both cases involve situations in which the claimant's work activities themselves evidenced an inability to engage in substantial gainful activity. In Resnikoff, the undisputed facts showed that the claimant had conducted his "meager activities" while "a virtual bed patient," and that the work was "medically approved on a trial basis only, purely incidental and subordinate to the purpose of possibly assisting recipient in removing his disability." 290 F.Supp. at 641. In Shutt, the evidence was that the claimant had held six jobs in twenty months and that he had left the first five involuntarily because of his inability to do the work or because of his medical record, and left the sixth because of another injury. The Court of Appeals remanded because of the Secretary's failure to consider the "serious questions . . . evident as to whether Shutt's employment history affirmatively demonstrates his inability to engage in substantial gainful activity." 490 F.2d at 47 (emphasis added). As I have noted above, this sort of evidence is not present in this case.

I conclude that the Secretary properly applied the standards of Regulation 404.1534(b), and that his finding that Lee Cucuzzella's disability ceased in May 1967 is supported by substantial evidence.

B. Recurrence.

Plaintiff also raises the issue of whether Lee's disability recurred during the period for which the Secretary now seeks recovery of benefits — August 1967 through December 1971 — or thereafter. Plaintiff first asserts that the Secretary made no specific finding as to this period, but this ignores the Administrative Law Judge's Finding No. 1: "The claimant's disability ceased in May 1967 . . . and his disability did not continue thereafter . . . ." (Tr. 24).

Plaintiff next contends that "some opportunity must be afforded to the plaintiff to litigate Lee's status between 1967 and 1971 before the Court can affirm a finding that all benefits paid during that period had been tendered incorrectly." I agree with this statement, but I find that plaintiff had such an opportunity before the Administrative Law Judge. In his opening statement at the hearing, the judge said:

You should be prepared to prove that Lee J. Cucuzzella, the claimant, continued to be under a disability as the same is defined in the Social Security Act after August of 1967 down to and including the present time.

The general issue before me is whether or not the claimant's disability ceased, and if so, when it ceased. Tr. 40.

During the hearing, testimony was taken and exhibits received which bore upon Lee's status after July 1967. The evidence showed that he had been productively employed for 56 of the 76 months between August 1967 and the hearing date. (Tr. 59, 63-80, 149). He did leave nine different jobs in that six-and-a-quarter year period, and Vincent Cucuzzella testified that "we believe the termination in most cases was the result of his disability." (Tr. 76). But no other evidence was produced in support of this assertion, though the Administrative Law Judge specifically noted this lack during the hearing and asked if plaintiff wanted time to obtain supporting statements from any of Lee's employers. Plaintiff did not. (Tr. 90-91, 98).

Many of Lee's jobs lasted for substantial periods of time (Matthews Bros. — 11 months; Wilmington Dry Goods — 14 months; American Life Insurance Co. — 20 months; Hanover Shoes — 5 months, continuing at the time of the hearing), and all paid substantially more than $140 per month; no single period of unemployment lasted longer than four months. Based on this record, the Secretary's finding that Lee Cucuzzella's disability did not continue after May 1967 is also supported by substantial evidence.

II. REPAYMENT.

The Social Security Act provides that "whenever the Secretary finds that more . . . than the correct amount of payment has been made to any person . . . the Secretary shall . . . require such overpaid person . . . to refund the amount in excess of the correct amount . . .." 42 U.S.C. § 404(a). However, "there shall be no . . . recovery by the United States from, any person who is without fault if such . . . recovery would defeat the purpose of Title II of the Act or would be against equity and good conscience." 42 U.S.C. § 404(b).

The Administrative Law Judge found that the plaintiff here was not without fault in accepting and retaining overpayments, and that recovery would neither defeat the purpose of the Act nor be against equity and good conscience. (Tr. 21-24)....