McNally v. Flemming
Decision Date | 13 May 1960 |
Docket Number | Civ. A. No. 573-59. |
Citation | 183 F. Supp. 309 |
Parties | John J. McNALLY, Plaintiff, v. Arthur S. FLEMMING, Secretary of the Department of Health, Education and Welfare, Social Security Administration of the United States of America, Defendant. |
Court | U.S. District Court — District of New Jersey |
Albert A. Sann, Jersey City, N. J., for plaintiff.
Chester A. Weidenburner, U. S. Atty., by Harold Weideli, Jr., Asst. U. S. Atty., Newark, N. J., for the government.
In this proceeding plaintiff, an applicant for old-age insurance benefits pursuant to 42 U.S.C.A. § 402(j), seeks a review of a decision of the defendant Secretary, under the jurisdiction delegated to this Court by the provisions of 42 U.S.C.A. § 405(g).
In his decision of December 16, 1958, the Referee determined that the applicant was entitled to old-age insurance benefits beginning with April 1956, and not before. Plaintiff disagrees with the Referee's decision and unsuccessfully sought a review before the Appeals Council, whose denial of review was dated May 19, 1959. The present action was instituted within the sixty day period prescribed by the jurisdictional section referred to.
The record submitted is correctly summarized in the Referee's decision, as follows:
Plaintiff was born September 8, 1885, and attained the age of 65 years in September of 1950. Although the application form which plaintiff filed with the Bureau on April 23, 1957 contained a space opposite the caption "Remarks" available "for explaining any answers to the questions" upon the form, no reference is made therein to the contention made by the plaintiff before the Referee and in the present action, that he had initially applied orally for the benefits in October of 1953.
Under date of December 24, 1957 the District Director of Internal Revenue Service certified to the Social Security Administration that a 1952 income tax return had been filed by plaintiff and his wife on March 14, 1953, with a payment of $37.51 as self-employment tax thereon. On January 24, 1958, plaintiff was awarded old-age benefits at the rate of $70.30 per month, commencing with the month of April 1956. Under date of February 19, 1958, plaintiff advised the Director of Social Security Administration at Washington, D. C., by letter, in part, as follows:
Under date of May 3, 1958 plaintiff followed the foregoing letter with another similarly addressed, enclosing a copy of the former, in which he reiterated the substance of his previous letter, including the above quoted portions thereof. In a letter to the plaintiff dated June 10, 1958, the Chief of the Area Office of the Department of Health, Education and Welfare, responded to plaintiff's request for reconsideration of the effective date of his application for old-age benefits, pointed out that the Act authorized payment of benefits only to insured workers of retirement age who filed an application therefor, and that an application filed after August 31, 1954 would be retroactive for twelve months provided the claimant had attained retirement age and was fully insured during the entire twelve month period. The letter further explained that because the application for benefits was filed on April 23, 1957 the allowance thereof could not be made retroactive to a month prior to April, 1956. Plaintiff replied under date of August 25, 1958, when, for the first time, he made the statement that in October 1953 he had made application for his Social Security benefits and was requested to produce his 1952 income tax return.
42 U.S.C.A. § 405(a) authorizes the Secretary "to make rules and regulations and to establish procedures, not inconsistent with the provisions of (the Act), which are necessary or appropriate to carry out such provisions, and (to) adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits (t)hereunder." Section 403.701(k) (1) of Chapter III of the...
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