Thacker v. Gardner
| Citation | 268 F. Supp. 663 |
| Decision Date | 07 March 1967 |
| Docket Number | No. 66-C-51-A.,66-C-51-A. |
| Parties | Beulah N. THACKER, Plaintiff, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant. |
| Court | United States District Courts. 4th Circuit. United States District Court (Western District of Virginia) |
Robert T. Winston, Jr., Kime, Jolly, Winston & Clemens, Salem, Va., for plaintiff.
William C. Breckinridge, Asst. U. S. Atty., Roanoke, Va., for defendant.
Claimant is a forty-one year old woman who lives in Norton, Virginia. Since her early childhood she has suffered from epileptic seizures. In 1959 she was found to be disabled within the meaning of the Social Security Act and was awarded benefits under her father's coverage. These benefits ceased, however, upon her marriage in 1964 to a man who almost immediately thereafter ran off and has not been heard from since.
By an application filed January 28, 1965, claimant attempted to obtain disability benefits in her own right on the ground that she became disabled in 1957 due to "epilepsy". In a decision which became final on April 29, 1966, the Secretary found that she was not entitled to receive benefits because she did not meet the special earnings requirement.
Claimant has petitioned this court pursuant to 42 U.S.C. § 405(g) to review the Secretary's decision. I have concluded that the determination of the Secretary is supported by substantial evidence and, therefore, must be affirmed.
Summarized, the special earnings requirement provides that a person is eligible for disability insurance only if he becomes disabled before the termination of a forty quarter period within which he has had not less than twenty quarters of coverage. 42 U.S.C. § 423(c) (1) (B).1
A quarter of coverage for social security purposes is defined as a period of three calendar months ending respectively on March 31, June 30, September 30 and December 31, during which the claimant received from an employer wages in the amount of $50.00 or more, or self-employment income amounting to $100.00 or more. 42 U.S.C. § 413(a) (2).
The Secretary found that the claimant had been employed from 1946 through 1958 and that she had achieved the required minimum of $50.00 of income in twenty-one quarters, but that in any forty quarter period, the maximum number of quarters she had attained was nineteen, one less than required by the statute. Finding that claimant did not meet the special earnings requirement, the Secretary did not reach the question of whether the claimant suffered from a disability.
The only question before me on this petition to review is whether the finding of the Secretary that claimant did not possess the requisite number of quarters of coverage is supported by substantial evidence. Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962); Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966).
During the period from 1946 through 1958 claimant was employed as a dishwasher at the Liberty Cafe in Norton owned and operated by Mr. Cecil Gardner, where she was paid about $21.00 a week. She has alleged no other place of employment. During this period, Mr. Gardner, as required by law, reported wages paid her to the Social Security Administration. The employer's wage records and those of the Secretary were compared and were found to be identical in every respect.
Where the Secretary has compiled wage records upon information submitted by an employer, these records are admissible as evidence and are competent to show wages earned during the periods shown. Furthermore, the law provides:
* * * The absence of an entry in such records as to wages alleged to have been paid to, or as to self-employment income alleged to have been derived by, an individual in any period shall be evidence that no such alleged wages were paid to, or that no such alleged income was derived by, such individual during such period. 42 U.S.C. § 405(c) (3)
During a limitations period of three years, three months and fifteen days following the ending of any calendar year the records of the Secretary may be corrected so as to eliminate errors whether of inclusion or omission. 42 U.S.C. § 405(c) (1) and 42 U.S.C. § 405(c) (4). However, after the expiration of this period of limitation the records acquire a degree of finality.
The force of an absence of record entries over a given period to indicate the absence of income or wages paid during that period depends upon whether the alleged earnings were wages received from an employer or whether they were self-employment income. With respect to wages, which is the only type of income alleged to have been received by claimant in this case, an absence of record entries during a quarter is, after the expiration of the limitation period, presumptive evidence that no wages were received during that quarter. 42 U.S. C. § 405(c) (4) (B).
The presumption that the Secretary's records are correct would appear to be rebuttable, but only upon a showing of positive evidence to the contrary. Carqueville v. Flemming, 263 F.2d 875, 876 (7th Cir. 1959); Williams v. Celebrezze, 243 F.Supp. 103, 107 (E.D. Ark.1965).
The Secretary's wage records show that no wages were received by the claimant during 1952 or 1956. As to both of these years, of course, the limitation period has run. If she could have established but one quarter of coverage during either of these years, claimant would have met the special earnings requirement. The Hearing Examiner was well aware of her plight. The record discloses that he searched diligently for evidence to support her assertion that she had worked the majority of each of the years in question.
Claimant testified at the hearing that in 1952 she started work in the latter part of April and worked on and off for about six months. The claimant's testimony as well as that of her father and mother appears rather confused as to the precise dates on which her work began and terminated in 1952 and, for that matter, as to other years which are not in question. This uncertainty is quite understandable, in view of the time which has elapsed between then and now.
The attempt to establish coverage during 1952 concentrated primarily on the last quarter. The claimant testified that she was working at Christmas in 1952 and that her employer, Cecil Gardner, gave her $10.00 as a Christmas present that...
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Breeden v. Weinberger, 73-1899.
...than declarations to the effect that the presumption can be rebutted by "positive" or "substantial" evidence. E. g., Thacker v. Gardner, 268 F.Supp. 663, 665 (W.D.Va.), aff'd, 387 F.2d 387 (4th Cir. 1967), cert. denied, 390 U.S. 1017, 88 S.Ct. 1272, 20 L.Ed.2d 168 (1968);3 Williams v. Celeb......
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Fisher v. Secretary of U.S. Dept. of Health, Ed., and Welfare, 74-1740
...required the claimant to rebut the negative condition of the records by "substantial evidence," citing on a "Cf." basis Thacker v. Gardner, 268 F.Supp. 663 (W.D.Va.), aff'd, 387 F.2d 387 (4th Cir. 1967), Cert. denied, 390 U.S. 1017, 88 S.Ct. 1272, 20 L.Ed.2d 168. We note that although the c......
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Gross v. Weinberger, Civ A. No. 74-369.
...that year creates a presumption that no such wages were paid in that period. 42 U.S.C. § 405(c)(4)(B). See generally, Thacker v. Gardner, 268 F.Supp. 663 (W.D.Va.1967), aff'd 387 F.2d 387 (4th Cir. 1967), cert. denied 390 U.S. 1017, 88 S.Ct. 1272, 20 L.Ed.2d 168 Two sets of earnings records......
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Mounts v. Finch
...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 record......