SSR 68-64c: SECTIONS 216(i)(2)(E) and 223(b). -- DISABILITY -- INSURED STATUS TERMINATED PRIOR TO APPLICATION -- BREAK IN CONTINUITY OF DISABILITY

20 CFR 404.115

SSR 68-64c

HENRY v. GARDNER, 381 F.2d 191 (6th Cir., 1967)

Before: WEICK, Chief Judge, COMBS and CECIL Circuit Judges.

CECIL, Senior Circuit Judge : This is an appeal from an order of

the District Court for the Eastern District of Tennessee, Southern

Division, affirming the Secretary's denial of appellant's application

seeking a period of disability and disability benefits under Sections

416(i) and 423, Title 42, U.S.C.

On December 12, 1963, Carl V. Henry, the appellant herein, applied for

disability benefits, alleging that he became disabled on December 3,

1953. [1] The appellant's insured

status terminated on June 30, 1954. It is unquestioned that at that time

the appellant was disabled within the meaning of the Act by reason of

tuberculosis. Because appellant's insured status terminated on June 30,

1954, it was incumbent upon the appellant to prove that beginning on or

before that date he was continuously disabled until at least twelve months

prior to filing his application. Section 416(i)(2)(D), Title 42, U.S.C.,

states that no application for disability benefits shall be accepted if

filed more than twelve months after the period of disability ends.

Appellant was born in 1920, and received a sixth grade education.

Beginning in 1937, appellant worked at various jobs in the coal mines,

including digging, dynamiting and handling coal. Prior to 1946 he also

worked outside the mines as an operator of coal loading machines and

caretaker of the battery lights for coal miners' belts. He has been a

molder's helper, pouring molten iron around molds to make cast iron pipes

and has worked for a sawmill. He last worked as an assembler and crater of

stoves, leaving the job in December 1953, after eight months employment.

Other than one unsuccessful attempt to regain this lost position, the

record reveals no other evidence of any attempts by appellant to secure

employment.

e has been a

molder's helper, pouring molten iron around molds to make cast iron pipes

and has worked for a sawmill. He last worked as an assembler and crater of

stoves, leaving the job in December 1953, after eight months employment.

Other than one unsuccessful attempt to regain this lost position, the

record reveals no other evidence of any attempts by appellant to secure

employment.

Appellant was admitted to the Tennessee Tuberculosis Hospital on January

11, 1954, with a diagnosis of active minimal pulmonary tuberculosis,

involving the right apex. Appellant was placed on drug therapy, and on May

25, 1954, a segmental resection involving the right upper lobe was done.

Appellant was discharged from the hospital on July 11, 1954, but continued

to receive drug therapy until June 10, 1957. Upon his discharge from the

hospital in July, 1954, appellant's sputum analysis was negative and his

condition was described as "minimal pulmonary tuberculosis; apparently

arrested. Marked improvement with segmental resection." Following his

release, appellant was X-rayed three to five times a year, until February

3, 1958. Beginning on February 25, 1955, the X-rays revealed that the

tubercular condition was arrested, and Dr. H, medical director of the

Tennessee Tuberculosis Hospital, noted that "it would seem perfectly safe

for the individual to begin to do some form of light work in which only a

minimal amount of physical exertion is involved." Following the next

examination of appellant, on July 8, 1955, Dr. H stated that it was

"perfectly safe" for appellant to do light work. Beginning April 23, 1956,

the X-rays revealed that appellant's tubercular condition was "inactive."

The hospital records in addition to noting the inactive state of

appellant's condition, thereafter also contain various complaints of

nervousness, hacking cough, and chest and stomach pains

ppellant, on July 8, 1955, Dr. H stated that it was

"perfectly safe" for appellant to do light work. Beginning April 23, 1956,

the X-rays revealed that appellant's tubercular condition was "inactive."

The hospital records in addition to noting the inactive state of

appellant's condition, thereafter also contain various complaints of

nervousness, hacking cough, and chest and stomach pains. Following

appellant's X-ray check and examination of February 3, 1958, there is no

record of appellant ever having seen a doctor until June 5, 1961, when he

was again examined by Dr. H at the Tennessee Tuberculosis Hospital,

out-patient clinic. The X-rays again indicated that this tubercular

condition was inactive. Dr. H stated on July 11, 1961, that "so far as

this man's pulmonary tuberculosis was concerned, it is believed it is

perfectly safe for him to work full time at most any form of work." Two

later X-ray examinations, on June 4, 1962, and June 17, 1963, also

revealed that appellant's tubercular condition was inactive. The inactive

status of appellant's tubercular condition was confirmed by Dr. S, a

general practitioner, in his report dated July 4, 1961. The report added

that the appellant sighed a great deal, had dizzy spells and blackouts,

had pain in both shoulders and upper chest, down to the thumb. Dr. S

stated that appellant's activity tolerance was very slight.

Dr. M submitted a report, dated August 30, 1963, stating that the

appellant was hospitalized in 1961 and from May 21, 1962 to June 1, 1962.

He diagnosed the appellant as suffering from "mild pulmonary emphysema,

chest pain secondary to his old pulmonary surgery and peripheral neuritis,

all of which makes it difficult for him to perform gainful occupation for

which he would be qualified." In a later report dated January 14, 1964,

Dr. M's diagnosis was pulmonary emphysema, asthmatic bronchitis, and

intercostal neuritis

1962.

He diagnosed the appellant as suffering from "mild pulmonary emphysema,

chest pain secondary to his old pulmonary surgery and peripheral neuritis,

all of which makes it difficult for him to perform gainful occupation for

which he would be qualified." In a later report dated January 14, 1964,

Dr. M's diagnosis was pulmonary emphysema, asthmatic bronchitis, and

intercostal neuritis. He added that a good part of appellant's pulmonary

disorders were related to his excessive smoking, which appellant refused

to curtail. In a letter to appellant's attorney, dated February 1, 1965,

Dr. M speculated that 50 % of appellant's disability was related to his

tuberculosis. There is little doubt that appellant's emphysema and

intercostal neuritis were residual effects of the tuberculosis and his

ling resection surgery. Dr. M testified at the hearing before the examiner

that there was a 90% chance that the bronchitis would have developed

without the tuberculosis. He felt that the bronchitis could be treated and

improved by medication. When appellant first visited Dr. M his emphysema

was only in a moderate stage. He could not relate the severity of the

emphysema or its accompanying symptoms back to June, 1957, when the

tuberculosis drug therapy was discontinued. Dr. M further testified that

although appellant could not perform any strenuous employment, he was

physically capable of performing certain sedentary jobs and other jobs

which required standing and lifting of not more than ten pounds, two or

three times an hour, as long as the atmosphere in which it was done did

not contain ling irritants.

he

tuberculosis drug therapy was discontinued. Dr. M further testified that

although appellant could not perform any strenuous employment, he was

physically capable of performing certain sedentary jobs and other jobs

which required standing and lifting of not more than ten pounds, two or

three times an hour, as long as the atmosphere in which it was done did

not contain ling irritants.

Dr. R, a board certified specialist in internal medicine and

cardiovascular diseases, stated at the hearing, after reviewing the

medical reports submitted in the case, that the appellant suffered from

minimal tuberculosis which was inactive. Dr. R testified that there was

not enough evidence in the reports for him to determine whether appellant

was suffering from emphysema. He further stated that following a removal

of a part of a lung, the remaining lung functions are generally very good.

He did not believe that the bronchitis was related to the tuberculosis. He

felt that both the bronchitis and the intercostal neuritis could be

remedied by medication and treatment. He expressed his opinion that the

appellant could engage in light work requiring standing as long as it was

not necessary to lift weights greater than 10 to 15 pounds more than three

to four times an hour.

Based upon this record, the hearing examiner concluded that the appellant

did not establish a period of disability to qualify for disability

benefits. He held that the appellant "was not continuously disabled since

this original impairment and that he even now retains a capacity for

sedentary or light work." The hearing examiner further held that the

appellant was not presently disabled because the intercostal neuritis and

bronchitis could be remedied by medical treatment, and that the emphysema

had not been established to be of such severity as to preclude sedentary

and light work. The Appeals Council affirmed the findings and conclusions

of the hearing examiner.

sedentary or light work." The hearing examiner further held that the

appellant was not presently disabled because the intercostal neuritis and

bronchitis could be remedied by medical treatment, and that the emphysema

had not been established to be of such severity as to preclude sedentary

and light work. The Appeals Council affirmed the findings and conclusions

of the hearing examiner.

The appellant then sought review in the District Court, which on February

20, 1966, affirmed the conclusion of the Secretary. The appellant then

sought review in this Court. On April 25, 1966, this Court remanded the

case to the District Court to consider appellant's motion to reconsider

the cause and set aside the prior judgment because of newly discovered

evidence. The new evidence consisted of a report by Dr. C dated March 4,

1966, in which the doctor stated that appellant's tuberculosis was active.

The District Court, treating the matter as a motion under Rule 60(b)(2) of

the F.R. Civ. P., remanded the case "to the Secretary for him, or his

delegate, to determine whether the motion to correct the judgment should

be considered and, if so, to have a hearing thereon and to report his

action to this court." The Appeals Council, without holding a hearing,

determined that no changes in the prior decisions were warranted because

"any present inability to engage in substantial gainful activity occurred

long after his insured status ended. The uncontroverted evidence of record

clearly shows that the claimant was able to engage in substantial activity

for a number of years after April 1955." The Council held that the alleged

newly discovered evidence, if proven, would not change the status of the

claimant. The District Court affirmed this action of the Appeals Council.

The matter is now fully before this Court.

tatus ended. The uncontroverted evidence of record

clearly shows that the claimant was able to engage in substantial activity

for a number of years after April 1955." The Council held that the alleged

newly discovered evidence, if proven, would not change the status of the

claimant. The District Court affirmed this action of the Appeals Council.

The matter is now fully before this Court.

The question before us is whether the findings of the Secretary are

supported by substantial evidence. Section 405(g), Title 42, U.S.C. We are

bound by the inferences drawn by the Secretary even though we might have

reached an opposite conclusion if we were free to consider the matter de

novo. Palmer v. Celebrezze , 334 F.2d 306 (C.A.3). The party

applying for disability benefits has the burden of proving the requisite

disability and period of disability. Section 423(c)(2), Title 42,

U.S.C.

The Social Security Act defines "disability" as the "inability to engage

in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result

in death or which has lasted or can be expected to last for a continuous

period of not less than 12 months." Section 423(c)(2)(A), Title 42, U.S.C.

In order to establish a "period of disability" this appellant must prove

that he was continuously disabled from at least June 30, 1954, to within

twelve months of his filing of this application on December 12, 1963.

Section 416(i)(2)(a), Title 42, U.S.C. Appellant had the burden of proving

both that he was disabled within 12 months34 of filing his application and

that he was continuously disabled from June 30, 1954, when his insured

status terminated. Proof of a current disability alone would not entitle

appellant to benefits

in

twelve months of his filing of this application on December 12, 1963.

Section 416(i)(2)(a), Title 42, U.S.C. Appellant had the burden of proving

both that he was disabled within 12 months34 of filing his application and

that he was continuously disabled from June 30, 1954, when his insured

status terminated. Proof of a current disability alone would not entitle

appellant to benefits. The fact that a person who has recovered from a

prior disability subsequently suffers a relapse or suffers from a new

disability does not entitle such person to disability benefits if he is no

longer an insured under the Act.

The fact that a person is suffering from a diagnosed disease or ailment

is not sufficient in the absence of proof of its disabling severity to

warrant the award of benefits. Galli v. Celebrezze , 339 F.2d 924

(C.A. 9). An impairment that can be remedied by treatment will not serve

as a basis for a finding of disability. "An individual will be deemed not

under a disability if, with reasonable effort and safety to himself, the

impairment can be diminished to the extent that the individual will not be

prevented by the impairment from engaging in any substantial gainful

activity." Section 404.1502(g), Social Security Regulations No. 4 (20

C.F.R. 404.1502(g)). See also, Purdham v. Celebrezze , 349 F.2d 828

(C.A. 4).

In the present case the undisputed medical testimony was to the effect

that both the bronchitis and the intercostal neuritis were amenable to

treatment. As far as the appellant's emphysema is concerned, its condition

at the time of his application for benefits was not so severe as to

incapacitate him from performing any substantial gainful activity. When he

first examined the appellant in 1961, Dr. M described the condition as

moderate and stated that the appellant could perform sedentary and light

work. The only limit placed upon appellant's activity by Dr. M was that he

could not engage in activity which requires strenuous labor

for benefits was not so severe as to

incapacitate him from performing any substantial gainful activity. When he

first examined the appellant in 1961, Dr. M described the condition as

moderate and stated that the appellant could perform sedentary and light

work. The only limit placed upon appellant's activity by Dr. M was that he

could not engage in activity which requires strenuous labor. The appellant

also aggravated his condition by refusing Dr. M's advice that he cut down

on his smoking. Dr. R also concluded that the appellant could engage in

light work which did not require excessive lifting. On this state of the

record the Secretary was justified in concluding that the appellant had

failed to prove that he was under a disability entitling him to an award

of benefits.

The Secretary further found that even assuming that the appellant was

presently under a disability, he had failed to prove that he was

continuously disabled from June 30, 1954, the date that his insured status

terminated. As early as February, 1955, following appellant's lung

resection, the medical director of the Tennessee Tuberculosis Hospital

stated that appellant could perform light and sedentary work. In July,

1961, the director stated that appellant was able to "work full time at

most any form of work." All x-rays following the appellant's release from

the hospital indicate that his tubercular condition was alleviated and

"inactive." There further appears to be a three year hiatus from February,

1958, to June, 1961, in which the appellant did not even visit a doctor.

This evidence was not sufficient to satisfy the appellant's burden of

proving that he was continuously disabled throughout the period under

consideration herein. The Secretary was correct in finding that appellant

was not continuously disabled from June 30, 1954, to a time within twelve

months of the filing of his application for benefits.

which the appellant did not even visit a doctor.

This evidence was not sufficient to satisfy the appellant's burden of

proving that he was continuously disabled throughout the period under

consideration herein. The Secretary was correct in finding that appellant

was not continuously disabled from June 30, 1954, to a time within twelve

months of the filing of his application for benefits.

In view of the fact that the appellant was not continuously disabled

throughout the requisite period, the Appeals Council was justified in

refusing to reconsider the matter upon the ground of newly discovered

evidence. Assuming that the appellant is presently suffering from a

disabling case of active pulmonary tuberculosis, the fact that this

condition was not disabling throughout the entire period, precludes his

recovery of benefits. It was necessary for appellant to prove that he was

continuously under some disability from the date that his insured status

terminated on June 30, 1954. Having failed to do so, he cannot now, some

thirteen years later, seek benefits from an alleged present disability.

The judgment of the District Court is affirmed.

[1] Appellant originally filed

for disability benefits on July 6, 1961, and the claim was denied. Having

failed to exhaust his administrative remedies, the denial of his 1961

application is not subject to review herein.