Parker v. Finch, Civ. A. No. 2216.

• Decision Date: 23 February 1971
• Docket Number: Civ. A. No. 2216.
• Parties: Clarence PARKER v. Robert H. FINCH, Secretary of Health, Education and Welfare.
• Court: U.S. District Court — Northern District of Georgia

327 F. Supp. 193

Clarence PARKER v. Robert H. FINCH, Secretary of Health, Education and Welfare.

Civ. A. No. 2216.

United States District Court, N. D. Georgia, Rome Division.

February 23, 1971.

William I. Aynes, Atlanta, Ga., for plaintiff.

John W. Stokes, Jr., U. S. Atty., Julian M. Longley, Asst. U. S. Atty., Atlanta, Ga., for defendant.

ORDER

O'KELLEY, District Judge.

This is an action brought by a disabled plaintiff requesting judicial relief via review of an administrative decision from within the Social Security Administration and finalized by the Secretary of HEW. It is brought against the Secretary pursuant to 42 U.S.C.A. § 405(g).

Plaintiff attempted to secure disability benefits from the Social Security as far back as 1957, according to his testimony in the hearing before an Administration Examiner. However, it appears that he did not file an application in any form until March 5, 1968. Benefits were denied by the Secretary of HEW for the years preceding March 5, 1967, even though his disability was found to have originated in 1957. Benefits may be made retroactive one year from date of application under 42 U.S.C.A. § 423(f). This "final decision" of the Secretary may be reviewed in this Court under 42 U.S.C.A. § 405(g).

After the joining of issues, defendant filed a motion for summary judgment. There is no issue as to any fact, except for the controversies (1) as to whether plaintiff made oral application for benefits beginning with 1957 and continuing in 1958 and 1966; and, (2) whether an oral application is an application under 42 U.S.C.A. § 401 et seq.

The question for the Court is, is plaintiff entitled to the payment of disability insurance benefits for any months prior to March 1967 based upon his allegation that he attempted to file disability applications prior to March 5, 1968?

Plaintiff alleges that he attempted in 1957 to make application for benefits, but was denied. He did not file a written application on a prescribed form, nor did he give written notice of his desire to obtain benefits. In fact, no written statement or request was presented to the local office in Cartersville, Georgia, where he inquired.

No written statement, notice, or application was presented or filed in 1958 or 1966 when he again inquired about his rights.

After advice from counsel, plaintiff made written application for disability benefits with the Social Security office in Cartersville. On May 14, 1968, the claim was denied. On June 3, 1968, through counsel, he made a request for reconsideration. That request which was directed to the Director of the Division of Reconsideration of the Social Security Administration was denied on July 16, 1969. On July 21, 1969, he demanded a hearing before an Examiner of the Bureau of Hearings and Appeals of the Administration. A transcript of that hearing was made and, in accordance with 42 U.S.C.A. § 405(g), is filed in this cause by defendant.

Plaintiff presented uncontradicted testimony by two witnesses that he appeared at the local Social Security Office in early 1957 and early 1966. The former witness indicated plaintiff was told "nothing could be done," upon his inquiry.

Nevertheless, plaintiff could not establish having filed a written application for disability payments with the local office. Obviously, the presonnel manning the local office had no records of any records of any written statement.

The Examiner was obliged to deny plaintiff's claim on October 30, 1969 because there had been no application filed prior to March 5, 1968.

Timely appeal to the Appeals Council of the Administration was made and benefits were again denied on May 12, 1970. The Appeals Council by letter dated May 12, 1970 notified plaintiff that the Hearing Examiner's decision was to stand as the final decision of the Secretary in plaintiff's case from which he might proceed to judicial review under 42 U.S.C.A. § 405(g).

There are no controverted facts in this case. The only questions before the court are whether plaintiff filed an application prior to March 5, 1968, and if not, did the oral request to do so amount to an application under the law governing this subject?

As to the first issue the facts are uncontroverted by either party. Plaintiff apparently approached the local officials several times about social security benefits, but did not file a written application. It appears that he might have been given wrong information, but there is no charge that he was not allowed to file an application. Therefore, the Court must find that there is no genuine issue as to those facts and the Court determines the first issue in the negative. Section 423(a) (1) provides that in order for an individual to be entitled to disability benefits he must file an application for the benefits. The fact that no such claim was to be found in the records of the Social Security Administration and that there was no record of the receipt or filing of any such claim, furnishes substantial, if not conclusive, evidence in support of the Examiner's finding. Ray v. Gardner, C.A., 4th Cir., 1967, 387 F.2d 162.

The Examiner having determined that no application was filed...