Gross v. Weinberger, Civ A. No. 74-369.

• Citation: 398 F. Supp. 907
• Decision Date: 21 July 1975
• Docket Number: Civ A. No. 74-369.
• Parties: Floyd GROSS, Jr., Plaintiff, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

398 F. Supp. 907

Floyd GROSS, Jr., Plaintiff, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant.

Civ A. No. 74-369.

United States District Court, E. D. Kentucky, Pikeville Division.

July 21, 1975.

M. B. Fields, Hazard, Ky., for plaintiff.

Eugene E. Siler, Jr., U.S. Atty., Robert M. Murphy, Asst. U.S. Atty., Lexington, Ky., for defendant.

MEMORANDUM OPINION

HERMANSDORFER, District Judge.

This is an action brought under 42 U.S.C. § 405(g) for review of a final decision of the Secretary of Health, Education, and Welfare denying plaintiff's application for Social Security disability benefits. The scope of this review is limited to determining whether the findings and conclusions of the Secretary are supported by substantial evidence. Ingram v. Richardson, 471 F.2d 1268, 1271 (6th Cir. 1972); Walters v. Gardner, 397 F.2d 89, 91 (6th Cir. 1968).

The administrative law judge, whose determinations became the final decision of the Secretary upon approval by the Appeals Council, found that plaintiff had not established by credible evidence that he enjoyed insured status for disability purposes and was therefore not entitled to a period of disability or disability benefits. Careful consideration of the administrative record indicates to the reviewing court that this final decision is supported by substantial evidence and is consequently entitled to an affirmance.

The burden of establishing entitlement to disability benefits is clearly upon the claimant. Halsey v. Richardson, 441 F.2d 1230, 1236 (6th Cir. 1971); May v. Gardner, 362 F.2d 616, 617 (6th Cir. 1966). Included within this burden is the requirement that the claimant prove that his disability, if it exists, arose at a time when he enjoyed insured status. Harrison v. Richardson, 448 F.2d 638, 639 (6th Cir. 1971). For plaintiff in this case to have fulfilled that requirement, he must not only have shown that he was a "fully insured individual" as defined in 42 U.S.C. § 414(a), but also he must have established that he had at least twenty quarters of coverage in the forty-quarter period ending with the quarter in which disability allegedly commenced. 42 U.S.C. § 423(c) (1)(A) and (B)(i).

In determinations as to one's entitlement to disability benefits, wage records maintained by the Secretary constitute competent evidence as to the periods in which wages were paid a claimant, 42 U.S.C. § 405(c)(3), and after the expiration of the time limitation following any year, the absence of an entry in those records as to wages allegedly paid a claimant in a certain period in that year creates a presumption that no such wages were paid in that period. 42 U.S.C. § 405(c)(4)(B). See generally, Thacker v. Gardner, 268 F.Supp. 663 (W.D.Va.1967), aff'd 387 F.2d 387 (4th Cir. 1967), cert. denied 390 U.S. 1017, 88 S.Ct. 1272, 20 L.Ed.2d 168 (1968).

Two sets of earnings records submitted into evidence indicate that plaintiff had only sixteen quarters of coverage in the forty-quarter period concluding with the quarter in which his alleged disability commenced.¹ (Exhibits 13, 14 — Tr. 83-84). On the basis of these records, plaintiff's initial claim and his request for reconsideration were denied on July 16 and December 11, 1972, respectively.²

The record indicates that following the denial of plaintiff's claim, his mother, Mrs. Polly B. Gross, who purportedly was plaintiff's employer at the Gross and Gross Hazard Lunch restaurant, filed amended tax returns and apparently made belated Social Security payments for plaintiff to cover the years from 1958 through 1960.³ A third earnings record, certified on October 25, 1973, listed $600 as the wage amounts earned by plaintiff in those three years in which no earnings had been reflected in the two previously compiled statements. The twelve additional quarters of coverage thus provided was more than adequate to meet the twenty quarter requirement of 42 U.S.C. § 423(c)(1)(B)(i).

The administrative law judge, however, in rendering his hearing decision, found that the $600 amounts credited to plaintiff's account for the years 1958-60 were the result of "manufactured evidence" and he ordered these amounts stricken.⁴ Plaintiff was consequently held lacking the necessary coverage and his claim was again denied.

Although the judge had suggested to plaintiff prior to the hearing his misgivings concerning the validity of the wage record amendments, the decision to strike was not finally made until after both plaintiff and his mother had been given the opportunity to testify. Such a determination as was made by the administrative law judge was one which was within the exclusive province of the Secretary, in his capacity as finder of fact, to decide; reviewing courts are not empowered to extend de novo consideration to the evidence nor to resolve any conflicts or issues of credibility found therein. Wokojance v. Weinberger, 513 F.2d 210, 212 (6th Cir. 1975); Myers v. Richardson, 471 F.2d 1265, 1266-67 (6th Cir. 1972); Floyd v. Finch, 441 F.2d 73, 76 (6th Cir. 1971); Lane v. Gardner, 374 F.2d 612, 616 (6th Cir. 1967).

Clearly an issue as to credibility confronted the judge. Plaintiff testified that his disability injury occurred in 1961 though the evidence establishes that the year was actually 1963. Likewise, plaintiff adamantly insisted that he had not worked at all in either 1962 or 1963, although the earnings records showed significant earnings for those years, and plaintiff himself indicated that he worked at Hazard Lunch until the time of his injury and that this had been his last job.

Moreover, the testimony of Mrs. Gross was even less enlightening. She stated that she paid plaintiff $50 a month in 1958-60 in return for which "he just helped me around a little," but she did not recall whether her son had worked for her in the years between 1961 and 1963 (Tr. 31). She attributed the lack of accurate records concerning her son's purported employment to the death of her tax counsel and to a flood which allegedly ravaged her place of business in either 1957, 1960 or 1963.⁵ Even if her assertions were afforded the maximum degree of credibility, that fact would not alter the burden imposed upon plaintiff to establish his coverage.

Given the peculiar nature of plaintiff's alleged employment relationship (one hour's work a day in this mother's restaurant for which he was paid $50 in cash at the end...