SSR 73-7c: SECTION 223(d) -- (42 U.S.C. 443(d)). -- DISABILITY INSURANCE BENEFITS -- DURATION OF INABILITY TO ENGAGE IN SUBSTANTIAL GAINFUL ACTIVITY

20 CFR 404.1501 and 404.1532

SSR 73-7c

Alexander v. Richardson , 451 F.2d 1185 (10th Cir., 1971). CERT.

DEN. 407 U.S. 911 (6/12/72)

PICKETT, Circuit Judge: The question presented by this appeal is whether

under the provisions of 42 U.S.C. § 423(d) an applicant, to be entitled to

disability benefits under the Social Security Act, is required to

establish that he was unable to engage in any substantial gainful activity

for a period of twelve months in cases where there was some physical or

mental impairment for a period of more than one year. After appellant

Alexander's application for disability insurance under the Act had been

denied administratively because of the determination that the alleged

disability did not last for a continuous period of one year, he brought

this action in the United States District Court of Colorado, as authorized

by 42 U.S.C. § 405(g), to review the decision of the Secretary of Health,

Education and Welfare. The trial court affirmed the Secretary's

decision.

42 U.S.C. § 423(d), for the purposes of the Social Security Act, defines

disability as "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. . . ."

The facts are not in dispute. Alexander was unable to engage in a

substantial gainful activity within the meaning of the statute because of

a physical impairment, but this disability extended for a period of less

than twelve months, although there was an impairment which lasted for more

than one year

d or can be expected

to last for a continuous period of not less than 12 months. . . ."

The facts are not in dispute. Alexander was unable to engage in a

substantial gainful activity within the meaning of the statute because of

a physical impairment, but this disability extended for a period of less

than twelve months, although there was an impairment which lasted for more

than one year. The argument is that a grammatical construction of the

one-sentence statute defining disability leads to the conclusion that only

the impairment is required to extend over the one-year period, and that

this requirement does not apply to the term, "inability to engage in any

substantial gainful activity." Stated differently, Alexander's analysis of

the statute is that if his impairment extended for a period of one year or

more, he was entitled to benefits if for a lesser period he could not

engage in a substantial gainful activity. Alexander's argument arises from

the position of the word "which" immediately following the phrase, "any

medically determinable physical or mental impairment." He contends that

applying applicable grammatical rules, the word "which" has reference only

to "impairment" and does not modify the disability provisions. Citing White v. Finch , 311 F.Supp. 307 (D. Mass. 1970). The purpose of the

statute and its legislative history disclose the fallacy of this

argument.

To recover disability benefits under the Act an applicant must be unable

to engage in any substantial gainful activity. Disability is established

by showing a medically determinable mental or physical impairment which

prevents engaging in any gainful activity and the impairment which causes

it cannot be separated. The two components of disability must exist at the

same time

argument.

To recover disability benefits under the Act an applicant must be unable

to engage in any substantial gainful activity. Disability is established

by showing a medically determinable mental or physical impairment which

prevents engaging in any gainful activity and the impairment which causes

it cannot be separated. The two components of disability must exist at the

same time. The statute, which defines disability, not impairment, speaks

only of an impairment which can be expected to result in death or to last

for a continuous period of at least twelve months and one which will

disable a person seeking disability benefits for a like period. For

example, an applicant may have an injury from which he has lost one of his

hands. The result is a physical impairment for the remainder of his life,

but if he is able to engage in any gainful activities within a year from

his injury he is not entitled to benefits. We think the legislative

history of this statute supports this interpretation.

Prior to the 1965 amendment, the statutory definition of disability

provided that disability benefits were payable only in cases where the

disability was expected to result in death or would be of a long continued

and indefinite duration. In seeking to eliminate this indefinite

provision, the 1965 amendment proposed by the House of Representatives

provided that such benefits would be payable to a claimant who had been

totally disabled for at least six months, even though it was expected that

he would recover in the foreseeable future. Report of the Ways and Means

Comm., H. Rept. No. 213, 89th Cong., 1st Sess. p. 88. The Senate

substituted a twelve-month duration requirement for the six-month

requirement suggested by the House. In its report on the bill, the Senate

Finance Committee stated:

* * * * * *

The Senate version became law.

months, even though it was expected that

he would recover in the foreseeable future. Report of the Ways and Means

Comm., H. Rept. No. 213, 89th Cong., 1st Sess. p. 88. The Senate

substituted a twelve-month duration requirement for the six-month

requirement suggested by the House. In its report on the bill, the Senate

Finance Committee stated:

* * * * * *

The Senate version became law.

Although White v. Finch, supra , and Condon v. Finch , 305

F.Supp. 63 (D. N.H. 1969), are the only court decisions cited which have

considered this exact question, other cases have indicated or assumed that

the Act was designed to allow benefits only in cases where the insured's

inability to engage in any substantial gainful activity extends for the

minimum twelve-month period. Hayes v. Gardner , 376 F.2d 517 (4th

Cir. 1970); Dvorak v. Celebrezze , 345 F.2d 894 (10th Cir. 1965); Haverly v. Cohen , 310 F.Supp. 388 (E.D. Pa. 1970); Santagate v.

Gardner , 293 F.Supp. 1284 (D. Mass 1968). Cf. Johnson v. Finch ,

437 F.2d 1321 (10th Cir. 1971). Furthermore, the Secretary's

interpretation of the statutory definition of disability, if reasonable,

must be given effect. Udall v. Tallman , 380 U.S. 1 (1964), U.S.

v. Amer. Trucking Ass'ns ., 310 U.S. 534 (1940); Norwegian Nitrogen

Co. v. U.S. , 288 U.S. 294 (1933); Ute Indian Tribe of Uintah &

Ouray Reservation v. Probst , 428 F.2d 491 (10th Cir. 1970), cert.

denied, 400 U.S. 926 (1970); Munitions Carriers Conference, Inc. v.

American Farm Lines , 415 F.2d 747 (10th Cir. 1969); Garvey v.

Freeman , 397 F.2d 600 (10th Cir. 1968).

AFFIRMED .