Ray v. Celebrezze, 9554.

• Decision Date: 11 January 1965
• Docket Number: No. 9554.,9554.
• Citation: 340 F.2d 556
• Parties: William F. RAY, Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

340 F.2d 556 (1965)

William F. RAY, Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Appellee.

No. 9554.

United States Court of Appeals Fourth Circuit.

Argued November 10, 1964.

Decided January 11, 1965.

Franklin W. Kern, Charleston, W. Va., for appellant.

Robert J. Vollen, Atty., Dept. of Justice (John W. Douglas, Asst. Atty. Gen., Sherman L. Cohn, Atty., Dept. of Justice, and Donald P. Moore, Acting U. S. Atty., on brief), for appellee.

Before BOREMAN and BELL, Circuit Judges, and WINTER, District Judge.

BOREMAN, Circuit Judge:

On August 8, 1958, appellant, William F. Ray, filed an application under 42 U.S.C.A. § 416(i) (2) to establish a period of disability, commonly called a "disability freeze," beginning November 15, 1957. His application was denied by the District Office at Charleston, West Virginia, and on June 7, 1960, he filed with the Office of Hearings and Appeals a request for a hearing. On December 1, 1960, a hearing was held at which Ray appeared and testified. On February 14, 1961, the hearing examiner entered an order in which he stated his conclusion that the medical evidence did not establish that Ray was disabled within the meaning of 42 U.S.C.A. § 416 (i) (1). Ray then appealed to the Appeals Council. The Council concluded that additional medical evidence was necessary to resolve some discrepancies in prior medical findings and arranged to have Ray examined by two more doctors. The Council then reviewed all the medical evidence and, after making findings very similar to those made by the hearing examiner, determined that Ray was not disabled under the Social Security Act. This decision became the final decision of the Secretary. Pursuant to 42 U.S.C.A. § 405(g), Ray filed the present action in the United States District Court for review of the Secretary's decision. The District Court found substantial evidence in the record to support the Secretary's position and affirmed the decision. This appeal followed.

When Ray applied for the period of disability he was forty-five years old. He applied for a "disability freeze" rather than disability benefits as the 1954 Social Security Act which was then in effect provided that he was not entitled to disability benefits until he became fifty years of age. 42 U.S.C.A. § 423(a) (1) (B), (1954 Act). Since the time he filed his application Congress has amended section 423 and eliminated all age requirements for benefits if applicant is disabled within the meaning of the Act. The purpose of seeking a "disability freeze" under section 416(i) (2) was to protect his old age and survivor's insurance rights against impairment of his earning capacity through total disability before reaching retirement age. Pruitt v. Flemming, 182 F. Supp. 159 (S.D.W.Va.1960). Once the disability was established, the period during which he was disabled would be eliminated from his earnings record in computing his average monthly wage upon which the amount of his benefits would be based when he reached retirement age. Bailey v. Ribicoff, 206 F. Supp. 212 (S.D.W.Va.1962). To establish the disability under 42 U.S.C.A. § 416(i) (1), it was incumbent upon Ray to prove a medically determinable physical or mental impairment which could be expected to result in death or to be of long-continued and indefinite duration and that the impairment prevented him from engaging in any substantial gainful activity. Thomas v. Celebrezze, 331 F.2d 541, 545 (4 Cir. 1964). The hearing examiner and the Appeals Council in their decisions concluded that Ray had shown that he had a permanent physical impairment but that the impairment did not prevent him from engaging in any substantial gainful activity.

The evidence disclosed that Ray was born January 22, 1912; he attended school through the eighth grade; his work experience consisted of employment early in life as a coal miner and more recently as a welder for Union Carbide Corporation at its plant at Alloy, West Virginia. Ray testified that on April 12, 1957, while at work he received an injury to his low back from lifting a welding machine. Later, on November 13, 1957, he was involved in an automobile accident in which he injured his neck and cervical region. He did not go to the hospital but reported for work at his job with Union Carbide the following Monday, November 15. During the day his supervisor noticed that Ray was perspiring very freely and sent him to a first aid station. There he was found to have "pneumonia fever" and a numbness of his right arm and he was sent home. Ray stated that his right arm went numb and began to pain him so he contacted his family physician, Dr. Peck, who sent him to Charleston, West Virginia, to Dr. Caudill who took several X-rays. He returned to his home and on doctors' orders went to bed and was placed in traction to relieve the pain in his arm. He stayed in this position approximately three months. After almost a year he reapplied for work at Union Carbide but the company doctor, C. W. Stallard, refused to pass him because of his physical condition. Ray has not worked since the day he was sent home, November 15, 1957.

Since his injury in the automobile accident this applicant has been examined and treated by several doctors, including the two appointed by the Appeals Council and one appointed by the ...