Johnson v. Gardner, Civ. No. 67-1529.

• Court: U.S. District Court — Central District of California
• Writing for the Court: HAUK
• Citation: Johnson v. Gardner, 284 F.Supp. 230 (C.D. Cal. 1968)
• Decision Date: 24 April 1968
• Docket Number: Civ. No. 67-1529.
• Parties: Edgar P. JOHNSON, Plaintiff, v. John W. GARDNER, Secretary of Health, Education, and Welfare of the United States of America, Defendant.

284 F. Supp. 230

Edgar P. JOHNSON, Plaintiff, v. John W. GARDNER, Secretary of Health, Education, and Welfare of the United States of America, Defendant.

Civ. No. 67-1529.

United States District Court C. D. California.

April 24, 1968.

Joe C. Ortega and Shibley, Bevill & Ortega, Norwalk, Cal., for plaintiff.

Wm. Matthew Byrne, Jr., U. S. Atty., Frederick M. Brosio, Jr., Asst. U. S. Atty., Chief of Civil Division, and William P. Lamb, Asst. U. S. Atty., for defendant.

DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW, and ORDER GRANTING SUMMARY JUDGMENT

HAUK, District Judge.

This action was brought under section 205(g) of the Social Security Act, hereinafter called the Act, 42 U.S. C.A. § 405(g),¹ to review a final decision of the Secretary of Health, Education, and Welfare disallowing plaintiff's application for the establishment of a period of disability and for disability insurance benefits under sections 216(i) and 223 of the Act, 42 U.S.C.A. §§ 416(i)² and 423.³ After filing its Answer to the Complaint, the defendant now moves for summary judgment, an appropriate way of bringing the matter on for decision.⁴

The plaintiff filed an application for a period of disability and for disability insurance benefits on March 23, 1966 (Tr. 86-89),⁵ alleging that he became unable to work on June 24, 1952, at age 30. The application was denied initially (Tr. 91-92) and on reconsideration (Tr. 96-97) by the Bureau of Disability Insurance of the Social Security Administration, after the California Department of Rehabilitation, upon evaluation of the evidence by a physician and a disability examiner, had found that the plaintiff was not under a disability (Tr. 94-95).

The plaintiff then requested a hearing (Tr. 28) which was held on February 2, 1967, at Long Beach, California, where the plaintiff, a witness for the plaintiff, and a vocational consultant appeared and testified (Tr. 29-84). The hearing examiner considered this testimony and all the other evidence of record de novo and, on March 29, 1967, issued his decision finding that the plaintiff was not under a disability within the meaning of the Act and was therefore not entitled to a period of disability or to disability insurance benefits under the Act (Tr. 9-22).

The hearing examiner's decision became the final decision of the Secretary of Health, Education, and Welfare when it was approved by the Appeals Council on June 21, 1967 (Tr. 1), and that decision is now subject to review by this Court.

The Court has examined the record before this Court, which includes, among other things, the Complaint to Set Aside Decision under Social Security Act, the Answer, and the Administrative Transcript of Record. The matter has been extensively argued by counsel, in writing and orally. The Court has reviewed all of this material and concludes that plaintiff failed to sustain his burden of proving that he was entitled to the establishment of a period of disability or to disability insurance benefits. On the contrary, there is more than substantial evidence in the record to support the decision of the hearing examiner, and the decision of the Secretary should therefore be affirmed by granting summary judgment in favor of the defendant.

Now having heard the arguments and having examined all the files, documents and records herein, the cause having been submitted for decision, and the Court being fully advised in the premises, the Court renders its decision.

DECISION

The Applicable Law

Section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), reads in part as follows:

"Any individual, after any final decision of the Secretary made after a hearing to which he was a party * * may obtain a review of such decision by a civil action * * * in the district court of the United States * *. As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. 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 * * *."

Under this section, the jurisdiction of the Court is limited to the single question of whether or not the findings of the Secretary of Health, Education, and Welfare are supported by substantial evidence. This specific statutory restriction upon judicial review of the Secretary's decision is applicable to the findings of fact if supported by substantial evidence and extends as well to the inferences drawn therefrom if they have a substantial basis in the record evidence. Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965); McMullen v. Celebrezze, 335 F.2d 811, 814 (9th Cir. 1964); Celebrezze v. Bolas, 316 F.2d 498, 500-501 (8th Cir. 1963); Celebrezze v. Maxwell, 315 F.2d 727, 730 (5th Cir. 1963); Hoffman v. Ribicoff, 305 F.2d 1, 6 (8th Cir. 1962); Sherrick v. Ribicoff, 300 F.2d 494, 495 (7th Cir. 1962); Cody v. Ribicoff, 289 F.2d 394, 395 (8th Cir. 1961); Carqueville v. Flemming, 263 F.2d 875, 877 (7th Cir. 1959); Rosewall v. Folsom, 239 F.2d 724, 728 (7th Cir. 1957); United States v. LaLone, 152 F.2d 43, 44 (9th Cir. 1945).

"Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and it must be based on the record as a whole." Celebrezze v. Bolas, supra, 316 F.2d at 501. Where there is substantial evidence both for and against the claimant the court in proceedings such as these is not authorized to weigh the evidence and substitute its judgment for that of the Secretary but must affirm the Secretary's decision. Celebrezze v. Bolas, supra, 316 F.2d at 506. In Miller v. Flemming, 275 F.2d 763, 765 (9th Cir. 1960), the Court of Appeals for this Circuit stated: "We are not free to choose inferences tending to the contrary and thus substitute our fact finding for that of the administrative agency." See also McMullen v. Celebrezze, supra, 335 F.2d at 814; Seitz v. Secretary of Social Security Administration, etc., 317 F.2d 743, 744 (9th Cir. 1963); Conley v. Ribicoff, 294 F.2d 190, 194 (9th Cir. 1961).

Section 216(i) of the Act, the so-called "disability freeze" provision, 42 U.S.C.A. § 416(i), contemplates the elimination from an individual's earnings record of periods during which he was under a "disability", as defined in the Act, for the purpose of determining the amount of his monthly wage, upon which the amount of his benefit is based. Section 223 of the Act, 42 U.S.C.A. § 423, provides for the payment of monthly benefits to individuals under disability.

Both sections 216 and 223 require that an individual have the special insured status as set forth therein in order to be eligible for a disability freeze or monthly benefits. 42 U.S.C.A. §§ 416(i),⁶ 423 (b).⁷

Prior to the 1965 amendments to the Social Security Act, the term "disability" was defined in sections 216(i) and 223 (c) (2) of Title II of the Social Security Act as follows:

"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."

Section 303(a) of P.L. 89-97, enacted July 30, 1965, amended sections 216(i) and 223(c) (2) of the Act by substituting for the requirement that an individual's impairment must be expected to result in death or be of long-continued and indefinite duration a new requirement that he have been under a disability which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 calendar months.⁸ A period of disability by reason of this change may be retroactively established pursuant to the provisions of section 303(f) of P.L. 89-97 beginning as early as October, 1941, but benefits are payable under the amended test only after September, 1965.

The statutory definition of disability imposes a three-fold requirement: (1) there must be a "medically determinable physical or mental impairment which can be expected to result in death", or which must under the former law have been expected to be "of long-continued and indefinite duration", or under the law as amended have lasted or be expected to last for "a continuous period of not less than 12 calendar months"; (2) there must be an "inability to engage in any substantial gainful activity", and (3) the inability must be "by reason of" the impairment. Celebrezze v. Bolas, supra, 316 F.2d at 501; Gotshaw v. Ribicoff, 307 F.2d 840, 844 (4th Cir. 1962); Pollak v. Ribicoff, 300 F.2d 674, 677 (2d Cir. 1962); Adams v. Flemming, 276 F. 2d 901, 903-904 (2d Cir. 1960). See also the comments of the Senate Committee on Finance on H.R. 9366; S.R. 1987, 83rd Congress, 2d Session, pp. 20-21; H.R. 1698, 83rd Congress, 2d Session, p. 23. It should be noted that the amendments do not change the requirements of the definition that a disability must be by reason of a medically determinable physical or mental impairment and that the impairment must be severe enough to prevent the individual from engaging in any substantial gainful activity.

The definition of disability, both prior to amendment of Title II and in its present form, excludes individuals who suffer from a partial rather than a total disability and those who, while unable to continue in their customary employment, might still obtain and successfully pursue some other type of full time or part time labor that would be substantial and gainful. Hicks v. Flemming, 302 F.2d 470, 473 (5th Cir. 1962); Adams v. Flemming, supra, 276 F.2d at 904.

This aspect of the definition of disability has been clarified by the 1967 amendments to the Social Security Act. Section 158(b) of P.L. 90-248, 81 Stat. 821 points out that an...