Kendrick v. Califano

• Decision Date: 01 November 1978
• Docket Number: Civ. A. No. 78-150-N.
• Citation: 460 F. Supp. 561
• Parties: Kevin O. KENDRICK, Complainant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

460 F. Supp. 561

Kevin O. KENDRICK, Complainant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant.

Civ. A. No. 78-150-N.

United States District Court, E. D. Virginia, Norfolk Division.

November 1, 1978.

COPYRIGHT MATERIAL OMITTED

William F. Burnside, Virginia Beach, Va., for complainant.

William B. Cummings, U. S. Atty., E. D. Va., Norfolk, Va., for defendant.

OPINION AND ORDER

CLARKE, District Judge.

Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), plaintiff appeals from a final order of the Secretary of Health, Education and Welfare holding (1) that he has never been entitled to a period of disability or to disability benefits and (2) that he must reimburse the Government for benefits already paid.

In October, 1975, plaintiff, then a nineteen-year-old college student, entered Bayside Hospital in Virginia Beach, Virginia. Physicians diagnosed his medical problems as acute leukemia and anemia. Plaintiff filed an application for a period of disability, disability insurance benefits, and Supplemental Security Income benefits on December 12, 1975. He alleged that he had been unable to work because of his illness since October 9, 1975. The Social Security Administration approved the applications on December 23, 1975, establishing a continuing period of disability from October 9. Supplemental Security Income payments began in late 1975. His first disability insurance benefit payments arrived in April, 1976.

After plaintiff underwent intense chemotherapy and treatment, apparent complete remission occurred. Although his doctors informed him that he would need to return to the hospital every two to three months for four to six weeks of further therapy, he felt well enough to perform some work between the periods of hospitalization. He began work for the Tidewater Equipment Corporation as a truck driver on March 4, 1976. The record indicates that he received $4.00 per hour and worked 40 hours each week there. He reported for all but eight workdays during his employment.¹ On April 28, 1976, he resigned his job at Tidewater Equipment and reported the next day for employment as a welder at the Norfolk Shipbuilding and Drydock Corporation. In his new job, when he felt well enough, he worked 40 hours each week. Generally, he was able to work for approximately two months at a time before having to undergo four or five consecutive weeks of therapy.² He was paid $4.35 per hour when hired, but his wages had increased to $5.05 per hour by November, 1976 and were $5.78 per hour at the time of the hearing in November, 1977.

Plaintiff's gross wages totaled $4232.81 for the year 1976 and $1477.75 for the period between January 1 and May 25, 1977.³ On November 18, 1976, the Social Security Administration notified him that it was investigating his work activity and that the investigation might result in termination of benefits. What specifically prompted the investigation, which occurred seven months after plaintiff received his first disability insurance benefits payments, is not clear from the record. He last received a benefits payment in March, 1977, and benefits were stopped effective April, 1977 pending further investigation into his disability.

The Social Security Administration found on June 30, 1977, that, because plaintiff was working 40 hours per week and earning $800 per month, he was engaging in substantial gainful activity and consequently had never been disabled. Plaintiff requested reconsideration of this finding, asserting that he was disabled because he could work for only 6 months each year. In a Notice of Reconsideration dated July 28, the Social Security Administration determined that plaintiff had never qualified for disability insurance payments because he had returned to substantial gainful work in March, 1976 and therefore was not disabled for a sufficient period of time to qualify for benefit payments under the law.

In a separate Notice of Reconsideration dated July 12, 1977, the SSA notified plaintiff that he had been overpaid $123.50 in Supplemental Security Income payments because his gross income for the first quarter of the calendar year 1976 (which had not previously been considered in computing the payments because, the SSA alleged, plaintiff had failed to report it) exceeded the amount that statutory law allows to be "disregarded."⁴ Repayment of the $3,574.70 in disability insurance payments and $123.50 in Supplemental Security Income payments allegedly overpaid was demanded. Plaintiff filed a request for a hearing on these determinations on August 17, 1977.

A de novo hearing was held before an Administrative Law Judge on November 15, 1977. The sole witnesses were plaintiff, his mother, and Verona Wasserman, who is the District Office Manager for Representative G. William Whitehurst. One week later the Administrative Law Judge issued his decision. He found that plaintiff was not and never had been entitled to a period of disability or to disability benefits under the provisions of Sections 216(i), 223, and 1614 of the Social Security Act (42 U.S.C. §§ 416(i), 423, and 1382a, respectively) because "he has not been precluded from engaging in substantial gainful activity for a continuous period of at least 12 months." The Administrative Law Judge further found that plaintiff was not "without fault" in receiving the benefits and therefore must reimburse the Government for the overpayments. This decision became the final decision of the Secretary of Health, Education and Welfare when the Appeals Council affirmed it on January 19, 1978. Although the Social Security Administration later advised plaintiff that his Title II overpayments totaled $2700.20 rather than $3574.90,⁵ he filed this appeal on March 18, 1978.

In essence, the Secretary made two determinations: first, that plaintiff has never been disabled; second, that plaintiff was not "without fault" in receiving the disability payments. The standard of review this Court must apply is clear. 42 U.S.C. § 405(g) and, by incorporation, 42 U.S.C. § 1383(c)(3) provide that "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ." The Fourth Circuit defines substantial evidence as "more than a scintilla but less than a preponderance. It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978). With these guidelines in mind, the Court turns to the issues.

Disability

The burden of proof is on the claimant to establish his entitlement to disability benefits. E. g., 42 U.S.C. § 423(d)(5); Taylor v. Weinberger, 528 F.2d 1153, 1156 (4th Cir. 1975); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

The Social Security Act provides that an individual is entitled to Title II disability insurance benefits if, inter alia, he is under a disability. 42 U.S.C. § 423(a)(1)(D). "Disability" is defined in the same section as follows, in pertinent part:

(d)(1) 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 which has lasted or can be expected to last for a continuous period of not less than 12 months; . . .⁶

(2) For purposes of paragraph (1)(A) —

(A) an individual (except a widow, surviving divorced wife, or widower for purposes of section 402(e) or (f), of this title) shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

. . . . .

(3) For purposes of this subsection, a "physical or mental impairment" is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

In order to receive Supplemental Security Income payments on the basis of disability under Title XVI of the Social Security Act, an individual must be disabled and must not have income or resources in excess of the statutory limits. 42 U.S.C. § 1382. Section 1614(a), 42 U.S.C. § 1382c(a), defines "disabled individual" as follows:

(3)(A) An individual shall be considered to be disabled for purposes of this subchapter if he is unable 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 which has lasted or can be expected to last for a continuous period of not less than twelve months (or, in the case of a child under the age of 18, if he suffers from any medically determinable physical or mental impairment of comparable severity).

(B) For purposes of subparagraph (A), an individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with

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