SSR 69-38c: SECTIONS 216(i) AND 223 AS AMENDED IN 1967. -- MEDICAL EVIDENCE MUST ESTABLISH DISABILITY AT TIME SPECIAL INSURED STATUS REQUIREMENTS ARE MET -- FAIR HEARING -- RIGHT TO REPRESENTATION BY ATTORNEY

20 CFR 404.1501

SSR 69-38c

STEIMER v. GARDNER, 395 F.2d 197 (9 Cir., 1968)

DUNIWAY, Circuit Judge :

This is an action under section 205(g) of the Social Security Act, 42

U.S.C. § 405(g) to review a decision of the Secretary of Health,

Education, and Welfare denying appellant Steimer's claim for a period of

disability and for disability insurance benefits under sections 216(i) and

223 of thee Act, 42 U.S.C. §§ 416(i), 423. The claimant appeals from a

judgment for the Secretary. She makes two claims, first, that the

Secretary's decision is not supported by substantial evidence (section

205(g), 42 U.S.C. § 405(g)), and second, that she should have been

represented by counsel before the hearing examiner, but was mislead by the

Secretary into acting pro se.

When appellant filed her application, the Act required that she show

"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 to be of long-continued and indefinite duration." 42

U.S.C. §§ 416(i), 423(c). In 1965, the last clause was amended,

substituting "not less than 12 months" for "long-continued and indefinite

duration." 79 Stat. 367. In 1967, after the decision of the Secretary and

the trial court, the Act was further amended. A definition of "physical or

mental impairment" was added: ". . . a 'physical or mental impairment' is

an impairment that results from anatomical, physiological, or

psychological abnormalities which are demonstrable by medically accepted

clinical and laboratory diagnostic techniques." P.L. 90-248, 1967 U.S.Code

Cong. & Admin. News 4631. These amendments are applicable here. Dean v. Gardner , 9 Cir., 1968, 393 F.2d 327 (March 29,

1968).

as added: ". . . a 'physical or mental impairment' is

an impairment that results from anatomical, physiological, or

psychological abnormalities which are demonstrable by medically accepted

clinical and laboratory diagnostic techniques." P.L. 90-248, 1967 U.S.Code

Cong. & Admin. News 4631. These amendments are applicable here. Dean v. Gardner , 9 Cir., 1968, 393 F.2d 327 (March 29,

1968).

The hearing examiner held in substance that appellant had not met her

burden of proof. We agree. The pertinent date is June 30, 1955, the date

when her insured status terminated. Much of the evidence relates to

occurrence since that time, which have only tangential relevance. There is

testimony by appellant that, before June 30, 1955, she had lower back

pain, dizzy spells, pains in her neck, weakness in her arms, and trouble

in sleeping. Her husband described her troubles in general terms, and

characterized her condition, as bad. But the record is almost totally

devoid of medical testimony that would bring her case within the statute.

Dr. [F] treated her before the crucial date; he diagnosed her condition as

"a stiff arthritic cervical spine." Her physician, Dr. [W] did not see her

in 1955. His only diagnostic statement relating to the crucial period was

that she had headaches and vertigo. The hearing examiner explained the

problem to appellant and attempted to elicit more helpful information from

her or from her doctors and the hearing was reopened to admit one medical

report. However,a appellant failed to introduce any more explicit medical

testimony as to her condition before June 30, 1955. The hearing examiner

was forced to conclude that appellant had not established the existence of

a disability before June 30, 1955 and that findings is supported by

substantial evidence. See Ryan v. Secretary , 9 Cir., 1968.

393 F.2d 340 (April 9, 1968).

medical

report. However,a appellant failed to introduce any more explicit medical

testimony as to her condition before June 30, 1955. The hearing examiner

was forced to conclude that appellant had not established the existence of

a disability before June 30, 1955 and that findings is supported by

substantial evidence. See Ryan v. Secretary , 9 Cir., 1968.

393 F.2d 340 (April 9, 1968).

Appellant argues that the Secretary encouraged appellant (and others like

her) to forego the right to be represented by counsel. She cites the

following from a pamphlet as an example: "Most people handle their social

security affairs with the help of the people in the Social Security

Office." Other examples are cited to similar effect. Appellant claims that

she was misled by these statements into thinking that the proceeding was

not an adversary one and that her lack of counsel resulted in lack of

knowledge of the requirements for establishing the existence of a

disability. She also claims that she was not assisted by the Secretary in

establishing the relevant facts necessary to substantiate her claim. This

argument was not explicitly raised below. It is true that appellant's

memorandum in support of her motion for summary judgment discusses her

lack of and need for a lawyer, but the motion does not ask for a remand on

this ground; it asks only that the Secretary's order be reversed that

judgment be entered for appellant. She does include lack of counsel as a

point upon which she intends to rely on appeal. The complaint contained no

allegation that appellant had been misled by the Secretary to her

detriment. In these circumstances, it might be appropriate to conclude

that the issue of representation is not before this court. However, we

prefer to dispose of the claim on the merits.

entered for appellant. She does include lack of counsel as a

point upon which she intends to rely on appeal. The complaint contained no

allegation that appellant had been misled by the Secretary to her

detriment. In these circumstances, it might be appropriate to conclude

that the issue of representation is not before this court. However, we

prefer to dispose of the claim on the merits.

Only one of the items cited by appellant as examples of the Secretary's

misleading statements appears in the record. That document is the "Notice

of Hearing." It does state that a lawyer is not required, but that

representation is permitted, applicant being responsible for the lawyer's

fee. Moreover the same notice provides extensive information as to the

requirements for disability benefits, and informs appellant of the date as

of which she had to prove disability. In addition, the hearing examiner

more than once indicated to appellant that more information, especially

from Dr. [W] would be helpful in properly assessing her claim of

disability. We conclude that the record does not establish that appellant

was misled as to her right to be represented by counsel, and that she

received a full and fair hearing.

AFFIRMED.