Dillingham v. Cohen
| Citation | 403 F.2d 213 |
| Decision Date | 17 December 1968 |
| Docket Number | No. 25868.,25868. |
| Parties | Clarence DILLINGHAM, Appellant, v. Wilbur J. COHEN, Secretary of Health, Education and Welfare, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Joseph E. Wroten, Greenville, Miss., for appellant.
H. M. Ray, U. S. Atty., J. Murray Akers, Asst. U. S. Atty., Oxford, Miss., for appellee.
Before COLEMAN and MORGAN, Circuit Judges, and HUNTER, District Judge.
The District Court declined to set aside the action of the Secretary of Health, Education, and Welfare in the denial of disability benefits to the appellant under the Social Security Act. We affirm.
The case has a long history, all of which was thoroughly analyzed in the decision of the hearing examiner dated August 12, 1966. We shall allude only to those portions of that lengthy recitation necessary to the decision of this appeal.
The claimant, Clarence Dillingham, appellant here, filed his first application on January 18, 1957, alleging that he became unable to work in November of 1947 because of blurred vision of the right eye and loss of the use of his right leg. This application was disallowed and was heard before a hearing examiner on November 17, 1958. On January 5, 1959, claimant was notified that the disallowance had been affirmed. No timely request for review was filed. It must be especially noted that the claimant last met earnings requirements on June 30, 1954.
On August 21, 1961, clamant filed his second application, stating that he became unable to work in December of 1948 because of iritis and rheumatoid arthritis. This application was disallowed, the claimant was notified, and there was no request for reconsideration. Under the pre-1965 law the decision of January 5, 1959, as to the record then before it, became final and binding for the period of time from November, 1947 to January 18, 1957 in the absence of new and material evidence, 20 C.F.R. § 404.957(b).
Claimant then filed his third application, May 26, 1965, which is the subject of this appeal. In this third application claimant alleged that he became unable to work at the age of forty-one, November, 1948. Presentation of this case to the hearing examiner took place on July 14, 1966. On August 12, 1966, the hearing examiner held that Dillingham had submitted no new evidence to justify reopening or revising the decisions of the prior hearing examiners, the crucial issue being whether the claimant was disabled, within the meaning of the Act, at any time before June 30, 1954. The hearing examiner further held that the 1959 decision was final and binding and was res judicata with respect to whether the claimant was disabled within the meaning of the Social Security Act as it existed prior to the 1965 amendments. Nevertheless, the examiner went the second mile and did consider all of the evidence but further found that claimant had failed to establish that a qualifying disability existed prior to ...
To continue reading
Request your trial
-
Tietze v. Richardson
...prevail, plaintiff must establish that he was unable to engage in substantial gainful activity on or before that date, Dillingham v. Cohen, 403 F.2d 213 (5th Cir. 1968). The hearing examiner, treating the application as a petition for reopening of the initial denial of disability benefits, ......
-
Domozik v. Cohen
...of disability and the 1965 amendments, and found appellant not to be entitled to benefits. As the court stated in Dillingham v. Cohen, 403 F.2d 213, 215 (5th Cir. 1968), "leaving aside any question of res judicata, the findings of the Secretary * * * are supported by substantial evidence in......
-
Simms v. Weinberger, 73-532-Civ-J-S.
...at least 20 quarters of employment coverage during the 40-quarter period which ends with the quarter of "disability". Dillingham v. Cohen, 403 F.2d 213 (5th Cir. 1968); Henry v. Gardner, 381 F.2d 191 (6th Cir. 1967), cert. den. 389 U.S. 993, 88 S.Ct. 492, 19 L.Ed.2d 487 (1967); Carter v. Ce......
-
DePaepe v. Richardson
...the meaning of the Act prior to December 31, 1965, the date he last met the insured status requirements of the Act. Dillingham v. Cohen, 5 Cir. 1968, 403 F.2d 213; and Seals v. Gardner, 5 Cir. 1966, 356 F.2d Section 223 of the Social Security Act (42 U.S.C. § 423 (1970)), defines disability......