Mounts v. Finch

• Decision Date: 15 October 1969
• Docket Number: Civ. A. No. 2557.
• Citation: 304 F. Supp. 910
• Parties: William MOUNTS, Plaintiff, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Southern District of West Virginia

304 F. Supp. 910

William MOUNTS, Plaintiff, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant.

Civ. A. No. 2557.

United States District Court S. D. West Virginia, Huntington Division.

October 15, 1969.

COPYRIGHT MATERIAL OMITTED

Toney E. Cline, Charleston, W. Va., for plaintiff.

Wade H. Ballard, III, U. S. Atty., Bluefield, W. Va., George D. Beter, Asst. U. S. Atty., Huntington, W. Va., for defendant.

CHRISTIE, District Judge:

This is an action under Section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare. A decision by a hearing examiner on March 1, 1968, awarded the plaintiff a period of disability and disability benefits, but this decision was reversed by the Appeals Council, which denied the claim on January 27, 1969. This decision is the final decision of the Secretary and it holds that plaintiff is not entitled to the establishment of a period of disability or disability insurance benefits under the provisions of the Act.¹ This matter is now before the Court on the parties' cross motions, under Rule 56, for summary judgment.

The Appeals Council determined that under Section 205 of the Social Security Act, 42 U.S.C.A. § 405,² plaintiff last met the special earnings requirements of the Social Security Act through the quarter ended March 31, 1950. This determination is crucial to the ultimate reversal of the hearing examiner.

Under the Act, 42 U.S.C.A. § 416(i), an individual cannot be considered to be under a disability unless he furnishes such proof of the existence thereof as may be required. To satisfy this requirement, the claimant must establish that he suffered from such disaability on or before the last day of his special insured status. Davidson v. Ribicoff, 204 F.Supp. 368 (S.D.W.Va. 1962). Thus, the burden is upon the plaintiff to establish by credible evidence that he was disabled within the meaning of the Act, though such proof need not be carried beyond a reasonable doubt. Thomas v. Celebrezze, 331 F.2d 541 (4th Cir. 1964).

The standard of review in actions of this nature is found in Section 205(g) of the Act, as amended, and is as follows:

"The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * *."

In short, the Courts are not to try the case de novo, and if the findings of the Secretary are supported by substantial evidence, the Courts are bound to accept them. Underwood v. Ribicoff, 298 F.2d 850 (4th Cir. 1962). Nevertheless, it is said that this provision of the law does not contemplate that the courts should surrender their "traditional functions," but that they will view the record as a whole, not for the purpose of making an independent finding, but to determine whether or not the administrative finding is supported by substantial evidence and to see that the Administrative Agency does not act arbitrarily or capriciously in denying just claims or allowing unworthy ones. Thomas v. Celebrezze, supra; Underwood v. Ribicoff, supra; Snyder v. Ribicoff, 307 F.2d 518 (4th Cir. 1962). In determining the meaning of "substantial evidence," the Courts have held it to be more than a scintilla, but less than a preponderance. Thomas v. Celebrezze, supra. It 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, 316 F.2d 498 (8th Cir. 1963). The Fourth Circuit has pointed out that if there is only a slight preponderance of the evidence on one side or the other, the Secretary's findings must be affirmed. Underwood v. Ribicoff, supra. Therefore, the immediate task of this Court on this review is to determine whether the defendant's denial of plaintiff's claim is supported by substantial evidence.

Plaintiff was born April 22, 1910, and at the time of the onset of his alleged disability, June 1948, he was thirty eight years of age. While at attended elementary school to the third grade, he is classified as illiterate. He is divorced and has no children. Generally, his vocational history has been that of a coal miner, although plaintiff's work record has been sporadic and inconsistent. It appears from the record that he was last employed on a coal buggy handling the cable. His last substantial work was in 1956 and 1957, and in the latter year he ceased work because of an accidental leg fracture. Plaintiff served in the United States Army for approximately three months in 1942 and was given a medical discharge because of a psychoneurosis. This condition, at the time of his discharge, was described as an anxiety reaction manifested by nervousness, weakness, precordial pain, palpitation, dyspnea and tremor of the extremities, without organic basis. Further diagnosis was anxiety in an inadequate personality.

The application that is the subject of this review is the third application plaintiff has filed for a period of disability and disability insurance benefits. His first application, filed March 6, 1961, was denied at all administrative levels with the Appeals Council denying his request for review of an adverse decision of a hearing examiner. His second application, filed September 6, 1963, alleged he became unable to work in March 1957. This application was denied initially, on reconsideration, and his request for a hearing was denied on grounds of res judicata, a decision from which he took no further action. In his application in the case at bar, plaintiff originally alleged the onset date of his disability as 1960, but when informed that the Secretary considered him to meet the earnings requirement through the quarter ending March 31, 1950, plaintiff amended his onset date allegation to June 1948. In its amended form, plaintiff's allegation is that he has been unable to work since 1948 because of nervousnes and silicosis.

It appears from the record that plaintiff was engaged in substantial work subsequent to March 31, 1950. It was because of this work activity that the hearing examiner, in his decision of March 1, 1968, concluded that plaintiff met the special insured status requirements until March 31, 1957. Moreover, the hearing examiner found plaintiff to be under a disability from February 1, 1957 onward. The Appeals Council, on review, held that the evidence of record failed to establish that additional earnings should be credited to plaintiff's earnings record for 1952 and 1953, at which time he allegedly did some work for a cousin, one Arden Mounts. The statutory rule of Section 205(c) (3) of the Social Security Act, quoted in footnote 2, supra, states that the absence of any entry in the Secretary's records as to wages allegedly paid an individual shall be evidence that no such wages were paid during the period, and the rule has received recent judicial endorsement. Johnson v. Gardner, 401 F.2d 518 (8th Cir. 1968). The Act also provides that after the expiration of the time limitation period, Section 205(c) (1) (B), supra, the absence of a wage entry in the Secretary's records creates a presumption that the plaintiff did not have such earnings. Section 205(c) (4) (B), supra; Thacker v. Gardner, 268 F.Supp. 663 (W.D.Va. 1967), affirmed 387 F.2d 387 (4th Cir. 1967). Therefore, there is a presumption of correctness accorded the Secretary's records that is rebuttable only upon a showing of positive evidence to the contrary. Carqueville v. Flemming, 263 F.2d 875 (7th Cir. 1959); Williams v. Celebrezze, 243 F.Supp. 103 (E.D.Ark. 1965).

In the case at bar, the time limitation with respect to 1952 and 1953 has long passed. Furthermore, the evidence presented by the plaintiff, in the opinion of the trier of fact—the Secretary—is not sufficient to overcome the statutory presumption, i. e., that plaintiff did not have earnings other than those reflected in the Secretary's records of his earnings. It has long been the rule that the Secretary is the trier of fact, Underwood v. Ribicoff, supra, and in that capacity he could properly refuse to accept plaintiff's claims as to wages allegedly paid him by his cousin Arden Mounts some sixteen to seventeen years earlier. Sabbagha v. Celebrezze, 345 F.2d 509 (4th Cir. 1965); Slaughter v. Gardner, 292 F.Supp. 568 (S.D.W.Va.1968); Carqueville v. Flemming, supra; Celebrezze v. Zimmerman, 339 F.2d 496 (5th Cir. 1964).

In addition, even assuming creditable earnings are shown, Section 205(c) (5) of the Social Security Act, supra, specifically enumerates the conditions under which the Secretary's records may be changed after the expiration of the statutory time limitation, Section 205 (c) (1) (B), supra. Initially, Section 205(c) (5) (A) provides that an omitted item of creditable earnings may be included on a claimant's earnings record only,

"(A) if an application for monthly benefits * * * was filed within the time limitation following such year * * *."

It is apparent from the record that plaintiff's present application, filed in 1966, was filed some ten years after the expiration of the three years, three months, and fifteen days time limitation required by Section 205(c) (1) (B) of the Social Security Act. Therefore, assuming arguendo that plaintiff has overcome the statutory presumption by credible evidence, his purported creditable earnings of 1952 and 1953 would, nevertheless, be barred from inclusion on his earnings record by the mandates of Section 205(c) (5) (A) of the Act. Williams v. Celebrezze, supra; Karwowski v. Gardner, 372 F.2d 118 (5th Cir. 1967); Martlew v. Celebrezze, 320 F.2d 887 (5th Cir. 1963). We are of the opinion that the conclusion reached by the Appeals Council that plaintiff last met the special insured status requirements of the Act through the quarter ending March 31, 1950, is supported by substantial evidence of record and, furthermore, that the alleged creditable earnings of 1952 and 1953 are barred from inclusion on the plaintiff's earnings record by...