SSR 74-20c: Rescinded 1984

20 CFR 404.320(a)(4)(iii), 404.1501(a), 404.923, and 404.934

SSR 74-20c

Santos Reyes v. Secretary , USCA, D.C., No. 71-1895 (2/23/73) (CCH,

U.I.R. Fed. Para. 17,064)

Where, to establish disability which began before he was age 18 [1] (in 1940), claimant in 1968

in applying for child's benefits based on disability, submitted doctor's

reports showing he was treated for pulmonary tuberculosis 35 years earlier

(in 1933, when he was 11 or 12), that he had been treated with

anti-tuberculosis drugs since 1964, and that he "makes no assertion that

he received any kind of treatment during the 26 years between 1938 [(when

he was 16)] and 1964," held , evidence (consisting of doctor's

recollection rather than objective clinical, diagnostic evidence) does not

establish that condition of claimant prior to his becoming age 18 was then

and has been at all times since disabling to such degree as to prevent his

engaging in any substantial gainful work. Further held , Secretary's

Regulations No. 4, §404.923, requiring hearings to be conducted only

within the United States, is clearly reasonable and not a denial of due

process of law.

MACKINNON, Circuit Judge : This action was instituted by

claimant-appellee Reyes in the District Court pursuant to section 205(g)

of the Social Security Act (42 U.S.C. §405(g)) for review of the final

decision of the Secretary of Health, Education and Welfare denying him

certain Social Security benefits. The District Court granted plaintiff's

motion for summary judgment and thereby reversed that administrative

determination. [2] This appeal

by the Secretary followed.

the District Court pursuant to section 205(g)

of the Social Security Act (42 U.S.C. §405(g)) for review of the final

decision of the Secretary of Health, Education and Welfare denying him

certain Social Security benefits. The District Court granted plaintiff's

motion for summary judgment and thereby reversed that administrative

determination. [2] This appeal

by the Secretary followed.

In 1968, claimant applied for child's disability insurance benefits under

section 20(d)(1)(B)(ii) of the Social Security Act (42 U.S.C.

§402(d)(1)(B)(ii)) [3] which

provides for an award of benefits to an individual who is the son of and

dependent upon an old-age beneficiary, if such individual is under a

disability which began before he attained the age of eighteen. Claimant's

application was denied by the Social Security Administration initially on

April 14, 1969 and again on reconsideration on July 25, 1969. Claimant

then requested review by a Hearing Examiner. [4] The Hearing Examiner found

that the medical evidence indicated, without clinical findings, that

claimant had received some treatment for pulmonary tuberculosis in 1933 or

1934 (when he was 11 or 12), but that the disease apparently had been

inactive or nonexistent thereafter until 1964 when it was detected and

treated. Accordingly, the Hearing Examiner found that claimant's

impairment was not of such severity before age 18 as to prevent him from

engaging in substantial gainful work and denied his application. Claimant

then sought review of the Hearing Examiner's decision by the Appeals

Council and, upon reconsideration of the entire record, the Appeals

Council affirmed the Hearing Examiner's decision and this became the final

decision of the Secretary on December 30, 1969. This action in the United

States District Court for the District of Columbia ensued and resulted in

a reversal of this administrative decision from which the Secretary now

appeals.

n by the Appeals

Council and, upon reconsideration of the entire record, the Appeals

Council affirmed the Hearing Examiner's decision and this became the final

decision of the Secretary on December 30, 1969. This action in the United

States District Court for the District of Columbia ensued and resulted in

a reversal of this administrative decision from which the Secretary now

appeals.

Claimant, a resident of the Philippines, was born October 25, 1922 and is

the unmarried son of a Social Security old-age beneficiary. As such he is

eligible for the benefits in question if he "is under a disability (as

defined in section [42 U.S.C. 423(d)]) which began before he attained the

age of 18." In support of his application, claimant stated that as a child

he tired easily, was confined mostly to bed and had to force himself to go

out and play with other children. He also related that he was compelled to

quit school after the fourth grade because of his ailment and that he has

never worked except to perform a few simple farm chores. The medical

evidence submitted by claimant consists of the reports of two physicians

and a radiologist. One physician's two-sentence report made in 1968 noted

that claimant presently complained of certain tubercular symptoms and that

he remembered treating him for pulmonary tuberculosis in 1933. Another

doctor reported in 1968 that he had treated claimant with

anti-tuberculosis drugs since about 1964. Also, a radiologist interpreted

a 1968 chest x-ray as "minimal" tuberculosis (Koch's pulmonary) and a

physician's review of that x-ray resulted in the conclusion that it showed

"minimal to moderate fibronodular tuberculosis". This physician also

supplied a supplementary report indicating that the claimant had not been

hospitalized under his care and the claimant himself makes no assertion

that he received any kind of treatment during the twenty-six years between

1938 and 1964.

y) and a

physician's review of that x-ray resulted in the conclusion that it showed

"minimal to moderate fibronodular tuberculosis". This physician also

supplied a supplementary report indicating that the claimant had not been

hospitalized under his care and the claimant himself makes no assertion

that he received any kind of treatment during the twenty-six years between

1938 and 1964.

For purposes of section 202(d), under which appellee asserts his claims,

the term "disability" is exhaustively defined in section 223(d) of the

Act:

(d)Same; disability.

(1) The term "disability" means—

(A) 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; * * *

(2)For purposes of paragraph (1)(A)—

(A)an individual . . . shall be determined to be under a disability only

if his physical or mental impairment or impairments are of such severity

that he is not only unable to do his previous work but cannot, considering

his age, education, and work experience, engage in any other kind of

substantial gainful work which exists in the national economy, regardless

of whether such work exists in the immediate area in which he lives, or

whether a specific job vacancy exists for him, or whether he would be

hired if he applied for work. For purposes of the preceding sentence (with

respect to any individual), "work which exists in the national economy"

means work which exists in significant numbers either in the region where

such individual lives or in several regions of the country.

* * * * * * *

(3)For purposes of this subsection, a "physical or mental impairment" is

an impairment that results from anatomical, physiological, or

psychological abnormalities which are demonstrable by medically acceptable

clinical and laboratory diagnostic techniques.

* * * * * * *

gnificant numbers either in the region where

such individual lives or in several regions of the country.

* * * * * * *

(3)For purposes of this subsection, a "physical or mental impairment" is

an impairment that results from anatomical, physiological, or

psychological abnormalities which are demonstrable by medically acceptable

clinical and laboratory diagnostic techniques.

* * * * * * *

(5) An individual shall not be considered to be under a disability unless

he furnishes such medical and other evidence of the existence thereof as

the Secretary may require.

42 U.S.C. §423(d). Further standards to aid in determining "disability"

are provided by Social Security regulations. 20 C.F.R. §404.1501, et.

seq . (Subpart P).

The Hearing Examiner's determination that appellee had failed to

demonstrate the existence of a disability within the meaning of §223(d)

prior to age 18, was certainly supported by substantial evidence and

should have been sustained. In these matters deference is to be afforded

the administrative decision and it is not for the trial court to review de

novo the Secretary's final decisions as to findings of fact and the

reasonable inference to be drawn therefrom. [5]

Here there is no clinical, diagnostic evidence as to the claimant's

disease prior to age 18, but only the recollection, 35 years removed, of

his current doctor. There is absolutely no objective evidence of

claimant's disability in the thirty years between 1934 and 1964. The only

clinical, diagnostic medical evidence we have shows a minimal to moderate

tuberculosis existing about 1964. Even at this time claimant was not

hospitalized and his response to drug therapy was recorded as "quite

favorable". Under these circumstances it cannot be said that the

Secretary's denial of benefits due to a failure of appellee to bear his

evidentiary burden was arbitrary or capricious

cal, diagnostic medical evidence we have shows a minimal to moderate

tuberculosis existing about 1964. Even at this time claimant was not

hospitalized and his response to drug therapy was recorded as "quite

favorable". Under these circumstances it cannot be said that the

Secretary's denial of benefits due to a failure of appellee to bear his

evidentiary burden was arbitrary or capricious. Even assuming, arguendo that appellee can be said to be presently totally disabled

within the meaning of §223(d), there is no showing that this is the same

condition that began in 1933 and which at that time and at all times

subsequent thereto was equally disabling to such a degree that appellee

was prevented from engaging in substantial gainful work. [6] The Hearing Examiner clearly

had substantial evidence in the record before him upon which he could

conclude that the condition either did not exist or was wholly inactive [7] until 1964.

Claimant also contends that he was denied due process of law in that he

was not afforded a hearing in the Philippines. [8] We find this argument

without merit. Even if a nonresident alien were entitled to the

protections of the due process clause in a case like this, [9] it is exceedingly clear that

the Secretary's regulation requiring that all proceedings in the

administration of the Act which cannot be conducted by mail, including

hearings, must be conducted only with the boundaries of the United States, [10] is clearly reasonable. [11] It is neither an

arbitrary requirement or is it unduly discriminatory.

We therefore find the Secretary's final decision to have been correct and

supported by substantial evidence and accordingly the District Court erred

in setting it aside.

[1] Under the 1972 Amendments to

the Social Security Act (P.L. 92-603), childhood disability benefits are

payable if the child's disability began before age 22, rather than before

age 18 as under prior law.

riminatory.

We therefore find the Secretary's final decision to have been correct and

supported by substantial evidence and accordingly the District Court erred

in setting it aside.

[1] Under the 1972 Amendments to

the Social Security Act (P.L. 92-603), childhood disability benefits are

payable if the child's disability began before age 22, rather than before

age 18 as under prior law.

[2] The District Court made no

findings of fact and conclusions of law, reversing the Secretary in a

brief order. While this is legally sound under Fed. R. Civ. P. 52, since

it was issued pursuant to a Rule 56 motion for summary judgment, it

renders review particularly difficult in cases like this. We have remarked

that where the trial court reverses an agency decision, apparently relying

"on a lack of substantial evidence, it should at least state which

findings are unsupported." Einbinder v. Novinger, Inc., 115 U.S. App. D.C.

395 at n. 3, 320 F.2d 714 at n. 3 (1963). See also , Gardner v.

Bishop, 362 F.2d 917 (10th Cir. 1966); Banks v. Celebrezze, 341 F.2d 801

(6th Cir. 1965). In Celebrezze v. Zimmerman, 339 F.2d 496 (5th Cir. 1964),

involving an appeal under the Social Security Act in which the District

Court similarly reversed the Secretary of H.E.W. on a summary judgment

motion, the court stated:

[I]n the rare case in which it is appropriate for the trial court to

reverse the Secretary's findings because there is no substantial evidence

to support them it would make it much easier for this Court, on appeal, to

have the benefit of the trial court's analysis of the evidence, and the

reasoning by which it arrives at its determination that it is unable to

find support in the record for the Secretary's findings.

339 F.2d at 498. However, since we are as fully capable as the trial court

to review the record at hand, there is no need for a remand for this

purpose.

[3] Section 202(d) provides:

l, to

have the benefit of the trial court's analysis of the evidence, and the

reasoning by which it arrives at its determination that it is unable to

find support in the record for the Secretary's findings.

339 F.2d at 498. However, since we are as fully capable as the trial court

to review the record at hand, there is no need for a remand for this

purpose.

[3] Section 202(d) provides:

(d)(1) Every child . . . of an individual entitled to old-age . . .

insurance benefits . . . if such child—

(A)has filed application for child's insurance benefits,

(B)at the time such application was filed was unmarried and . . . (ii) is

under a disability (as defined in section 423(d) of this title) which

began before he attained the age of 18, and

(C)was dependent upon such individual—

(i)if such individual is living, at the time such application was

filed,

* * * * * * *

shall be entitled to a child's insurance benefit for each month, beginning

with the first month after August 1950 in which such child becomes so

entitled to such insurance benefits and ending with the month preceding .

. .

(G)if such child was under a disability (as so defined) at the time he

attained the age of 18, the third month following the month in which he

ceases to be under such disability. . . .

42 U.S.C. §402(d)(1)(B)(ii).

[4] In the reconsideration

determination, claimant was informed that in lieu of a hearing, to which

he was entitled only if he came to the United States at his own expense,

he could request review of his claim by a Hearing Examiner and was advised

to submit any additional evidence he might have with this request. See

note 7, infra .

r such disability. . . .

42 U.S.C. §402(d)(1)(B)(ii).

[4] In the reconsideration

determination, claimant was informed that in lieu of a hearing, to which

he was entitled only if he came to the United States at his own expense,

he could request review of his claim by a Hearing Examiner and was advised

to submit any additional evidence he might have with this request. See

note 7, infra .

[5] Mitchell v. Gardner, 123

U.S.App.D.C. 195, 358 F.2d 826 (1966); Lessin v. Celebrezze, 114

U.S.App.D.C. 278, 314 F.2d 283 (1963). See also , Beane v.

Richardson, 457 F.2d 758 (9th Cir. 1972); Flack v. Cohen, 413 F.2d 278

(4th Cir. 1969); Easttam v. Secretary of HEW, 364 F.2d 509 (8th Cir.

1966); Maloney v. Celebrezze, 337 F.2d 231 (3d Cir. 1964); Adams v.

Flemming, 276 F.2d 901 (2d Cir. 1960).

[6] Appellee has argued that

section 202(d)(1)(B)(ii) does not require that a claimant for child's

benefits be disabled before he attains age 18, but requires only that a

claimant's present disability as defined in §223(d) be the result of an

impairment that began before he reached age 18. However, the legislative

history of that section clearly precludes such an approach, indicating

explicitly that the intent of Congress was to provide benefits for

children who were permanently disabled prior to age 18 and have remained

so continuously to the present time. The Senate Finance Committee Report

stated:

(d) be the result of an

impairment that began before he reached age 18. However, the legislative

history of that section clearly precludes such an approach, indicating

explicitly that the intent of Congress was to provide benefits for

children who were permanently disabled prior to age 18 and have remained

so continuously to the present time. The Senate Finance Committee Report

stated:

The bill includes provision for payment of disabled child's benefits to

the dependent disabled child of a deceased or retired insured worker if

the child is permanently and totally disabled and has been so disabled

since before he reached age 18. * * * Your committee's bill would provide

benefits for a child who has been totally and permanently disabled before

attaining age 18, if the child is totally and permanently disabled and dependent upon the parent at the time the parent dies or becomes

entitled to retirement benefits . To be considered disabled the child

would have to be unable to engage in any substantial gainful activity by

reason of a severe mental or physical impairment that is expected to

continue indefinitely.

S.REP. NO. 2133, 84th Cong., 2d Sess. 2, 5-6 (1956) (emphasis added). The

House Report states that the bill provides for "continuation of monthly

benefits to children who become totally and permanently disabled before

age 18 ." H.R. REP. No. 1189, 84th Cong., 2d Sess. 2 (1955) (emphasis

added). See also. id . at 8, 24-25.

[7] The Hearing Examiner was

entitled to rely on the Social Security regulations in this regard. For

purposes of §202(d) child's disability insurance, 20 C.F.R. §404.1506

adopts a list of impairments (Subpart P, App.) as an appendix in order to

aid in reaching a determination of "disability" vel non. See 20

C.F.R. 404.1501. These regulations provide:

added). See also. id . at 8, 24-25.

[7] The Hearing Examiner was

entitled to rely on the Social Security regulations in this regard. For

purposes of §202(d) child's disability insurance, 20 C.F.R. §404.1506

adopts a list of impairments (Subpart P, App.) as an appendix in order to

aid in reaching a determination of "disability" vel non. See 20

C.F.R. 404.1501. These regulations provide:

B. Pulmonary tuberculosis is a communicable disease and disability is

determined primarily on the basis of activity of the disease. Individuals

with "inactive" or "quiescent" disease are not considered to be under a

disability on the basis of tuberculosis, whereas individuals with "active"

tuberculosis are considered to be under a disability.

20 C.F.R. Subpart P, App. 3.00 (B). From the long period in which there

was no medical record of treatment or hospitalization, the Hearing

Examiner could correctly conclude that the claimant's condition had

entered an inactive or quiescent stage and as such he was not under a

permanent disability sufficient to preclude him from engaging in

substantial gainful work.

[8] Traditionally the courts

have held that the United States Constitution only operates within our

territorial boundaries. Johnson v. Eisentrager, 339 U.SD. 763 (1950); Ross

v. McIntyre, 140 U.S. 453, 464 (1891). The equal protection clause, for

example, has been held explicitly to apply only to aliens within the

jurisdiction of the United States. Wong Wing v. United States, 163 .S. 228

(186); Yick Wo v. Hopkins, 118 U.S. 356 (1886).

[9] Traditionally the courts

have held that the United States Constitution only operates within our

territorial boundaries. Johnson v. Eisentrager, 339 U.S. 763 (1950); Ross

v. McIntyre, 140 U.S. 228 (1896); Yick Wo v. Hopkins, 118 U.S. 356

ly to aliens within the

jurisdiction of the United States. Wong Wing v. United States, 163 .S. 228

(186); Yick Wo v. Hopkins, 118 U.S. 356 (1886).

[9] Traditionally the courts

have held that the United States Constitution only operates within our

territorial boundaries. Johnson v. Eisentrager, 339 U.S. 763 (1950); Ross

v. McIntyre, 140 U.S. 228 (1896); Yick Wo v. Hopkins, 118 U.S. 356

(1886).

[10] 20 C.F.R. §§404.923,

404.934 (1971).

[11] There appears to be no

legislative intent to the effect that the Social Security Act was to be

administered outside the United States, and absent such a showing, it is

familiar law that "the legislation of Congress will not extend beyond the

boundaries of the United States unless a contrary legislative intent

appears." Steele v. Bulova Watch Co., 344 U.S. 280, 285 (1952).