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

> Federal · Rulings · In force

URL: https://www.frixlaw.com/law-library/statutes/SSA_SSR_DI_SSR_68_64

## Section

- **Citation:** SSR 68-64
- **Heading:** SSR 68-64c: SECTIONS 216(i)(2)(E) and 223(b). -- DISABILITY -- INSURED STATUS TERMINATED PRIOR TO APPLICATION -- BREAK IN CONTINUITY OF DISABILITY
- **Jurisdiction:** Federal
- **Kind:** Rulings
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Social Security Rulings / DI / Disability, Period of Disability / SSR 68-64

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/SSA_SSR_DI_SSR_68_64. Check the current official text before relying on it. Not legal advice.