SSR 73-47c: SECTIONS 210(a)(7), 218(c)(6) and 223(c)(1)(B) (42 U.S.C. 410(a)(7), 418(c)(6), and 423(c)(1)(B)). -- DISABILITY INSURED STATUS -- BLINDNESS -- EXCLUSION OF PRISON WORK -- CONSTITUTIONALITY

20 CFR 404.116, 404.1006, and 404.1201

SSR 73-47c

Harbold v. Richardson , 464 F.2d 1063 (3rd Cir., 1972)

PER CURIAM: Section 223(c)(1(B)(i) of the Social Security Act, 42 U.S.C.

423(c)(1)(B)(i) requires that in order to be entitled to disability

benefits under the Social Security Act an individual shall have not less

than twenty quarters of coverage during the forty quarter period which

ends with the quarter containing the month in which he became disabled.

On January 24, 1968, the appellant filed an application for disability

insurance benefits under Title II of the Social Security Act. On March 19,

1968 his application was denied because he did not meet the aforementioned

earnings requirements. [1] Harbold subsequently requested and was given a hearing which resulted in a

second denial of his disability claim. The Appeals Council reviewed the

Hearing Examiners' decision and affirmed the denial of benefits. Appellant

then took an appeal from the decision of the Appeals council to the

district court. On April 13, 1971 the court below granted the Secretary's

motion for summary judgment. This appeal is from that decision.

Appellant's chief complaint is with 42 U.S.C. 410(a)(7) which excludes

service performed in the employ of a State or political subdivision

thereof, or any instrumentality of a State or political subdivision from

the disability coverage provided in the Act unless the service is included

under an agreement pursuant to 42 U.S.C. §

418. [2] Harbold's difficulties

stem from the fact that his disability occurred while he was an inmate at

the State Correctional Institution at Huntington, Pennsylvania. His

incarceration dates back to January, 1962. On November 15, 1967 Harbold

became totally blind after consuming a quantity of methyl alcohol.

Throughout these proceedings, appellant has vigorously contended that he

was an "employee" of the penal institution while incarcerated because he

performed work and was subject to the control of the institution

itution at Huntington, Pennsylvania. His

incarceration dates back to January, 1962. On November 15, 1967 Harbold

became totally blind after consuming a quantity of methyl alcohol.

Throughout these proceedings, appellant has vigorously contended that he

was an "employee" of the penal institution while incarcerated because he

performed work and was subject to the control of the institution. He

asserts that because he had been confined in prison since January, 1962,

he has been unconstitutionally deprived of coverage with regard to his

work activity therein, because such work is not recognized as covered

employment; it is excluded as such by Section 210(a)(7)(A) and

218(c)(6)(B) of the Act. Harbold further asserts that he meets the common

law test of employee as provided by Section 210(j) of the Social Security

Act, 42 U.S.C. § 410(j) for individuals engaged in covered employment.

From its inception, the Social Security Act, P.L. 74-241, enacted on

August 14, 1935, provided only for limited coverage. The Act was held

constitutional in Helvering v. Davis , 301 U.S. 619 (1937), where

the Supreme Court stated:

It is well settled that Congress does not have to legislate for all in a

class of persons because it legislates for part. See Gruenwald v.

Gardner , 390 F.2d 591 (2d Cir. 1968), cert. den. 393 U.S. 982

(1968). In Dandridge v. Williams , 397 U.S. 471 (1970), Justice

Stewart dealt with an arbitrary classification argument which was

constructed on the basis of the 14th Amendment Equal Protection

Clause. [3]

that Congress does not have to legislate for all in a

class of persons because it legislates for part. See Gruenwald v.

Gardner , 390 F.2d 591 (2d Cir. 1968), cert. den. 393 U.S. 982

(1968). In Dandridge v. Williams , 397 U.S. 471 (1970), Justice

Stewart dealt with an arbitrary classification argument which was

constructed on the basis of the 14th Amendment Equal Protection

Clause. [3]

"In the area of economics and social welfare, a State does not violate

the Equal Protection Clause merely because the classifications made by its

laws are imperfect. If the classification has some 'reasonable basis,' it

does not offend the Constitution simply because the classification 'is not

made with mathematical nicety or because in practice it results in some

inequality.'** 'The problems of government are practical ones and may

justify, if they do not require, rough accommodations -- illogical, it may

be, and unscientific.'** "A statutory discrimination will not be set aside

if any state of facts reasonably may be conceived to justify it.'**"

(citations omitted)

Since the Act was originally enacted, Congress has engaged in a series of

resolutions and amendments extending the coverage of Title II. The Social

Security Amendments of 1950 are the result of Congressional reevaluation

of the entire Title II program. In those amendments, Congress provided

coverage for self-employed individuals and state and local employees by

contractual agreement but expressly excluded, inter alia, service

performed "in a hospital, or penal institution by a patient or inmate

thereof" both under federal auspices in Section 410(a)(6)(C) (iii) of 42

U.S.C. and under State auspices in 42 U.S.C. § 418(c)(6)(B).

program. In those amendments, Congress provided

coverage for self-employed individuals and state and local employees by

contractual agreement but expressly excluded, inter alia, service

performed "in a hospital, or penal institution by a patient or inmate

thereof" both under federal auspices in Section 410(a)(6)(C) (iii) of 42

U.S.C. and under State auspices in 42 U.S.C. § 418(c)(6)(B).

The Social Security Act is designed to afford protection to working

members of the nation's economy who have entered into viable economic

relationships. The entire scheme rests on the legislative judgment that

those who in their productive years were functioning members of the

economy may justly call upon that economy, in their later years, for

protection from "the rigors of the poor house," Helvering v. Davis,

supra, at p. 641. "But the practical effectuation of that judgment has

of necessity called forth a highly complex and interrelated statutory

construction. Integrated treatment of the manifold specific problems

presented by the Social Security program demands more than a

generalization." Flemming v. Nestor, 363 U.S. 603, 609 (1960). The

appellant attempts to apply just such a generalization in order to avoid

the limited coverage provisions of the Social Security Amendments of 1950.

We are unable to say that his status as a prison inmate at the time of his

disability constitutes employment either under common law principles or

under any permissible statutory construction of the Title II

provisions.

603, 609 (1960). The

appellant attempts to apply just such a generalization in order to avoid

the limited coverage provisions of the Social Security Amendments of 1950.

We are unable to say that his status as a prison inmate at the time of his

disability constitutes employment either under common law principles or

under any permissible statutory construction of the Title II

provisions.

Harbold would have us "freeze" the earnings period at the point of his

imprisonment, so that if he earned coverage prior to incarceration, he

would remain covered during his prison term. An obvious incongruity would

result from such an application of the law: A claimant would be deemed to

have met the earnings requirement of Title II by counting 40 quarters

backwards from the date of his incarceration, even though the date of his

disability may have occurred several years later, after a prolonged period

during which no reportable earnings have been credited to claimant's

account by the Secretary. Such a construction would no violence to the

specific language of 42 U.S.C. § 423(c)(1)(B)(i).

The exemption from coverage of work performed in a penal institution was

extensively considered in 1967 by the Congress in conjunction with the

initiation of a work release program pursuant to the Prisoner

Rehabilitation Law, P.L. 89-176, 18 U.S.C. § 4082. Under this program work

is performed outside of the prison for private concerns. Congress

specifically recognized the difference between such work and ordinary

prison work. The basis for granting coverage to services performed in a

work release program was the similarity of that situation to the work

situation of ordinary people. In other words, the prisoner does the same

kind of work for the same wages under the same circumstances as

non-prisoners. [4]

e concerns. Congress

specifically recognized the difference between such work and ordinary

prison work. The basis for granting coverage to services performed in a

work release program was the similarity of that situation to the work

situation of ordinary people. In other words, the prisoner does the same

kind of work for the same wages under the same circumstances as

non-prisoners. [4]

We conclude that the exclusion of prison work is rationally related to

the purpose of the Social Security Act which is to replace loss of support

for workers in the national economy, their dependents and survivors.

The judgment of the district court will be affirmed.

[1] Harbold's earnings record

reveals that he has 14 quarters of coverage during the 40 quarter period

prior to November 15, 1967, when he became blind.

[2] § 418. Voluntary agreements

for coverage of State and local employees -- Purpose of Agreement:

(a)(1) The Secretary of Health, Education, and Welfare shall, at the

request of any State, enter into an agreement with such State for the

purpose of extending the insurance system established by this subchapter

to services performed by individuals as employees of such State or any

political subdivision thereof. Each such agreement shall contain such

provisions, not inconsistent with the provisions of this section, as the

State may request.

[3] In Richardson v.

Belcher , 404 U.S. 78 (1971), a recipient of social security disability

benefits challenged the offset provision of section 224 of the Act. 42

U.S.C. 424, when his benefits were reduced by the amount of monthly

workmen's compensation he was receiving from the State of West Virginia,

on the ground that the statutory provision deprived him of the due process

of law guaranteed by the Fifth Amendment. In citing Dandridge , the

court stated:

See also Lofty v. Richardson , 440 F.2d 1144 (6th Cir. 1971),

footnote 1 at p. 1147.

. 42

U.S.C. 424, when his benefits were reduced by the amount of monthly

workmen's compensation he was receiving from the State of West Virginia,

on the ground that the statutory provision deprived him of the due process

of law guaranteed by the Fifth Amendment. In citing Dandridge , the

court stated:

See also Lofty v. Richardson , 440 F.2d 1144 (6th Cir. 1971),

footnote 1 at p. 1147.

[4] The Senate Committee on

Finance, in considering the question of whether work performed by an

inmate under a work release program should constitute wages for social

security purposes, included a provision, Section 235, in H.R. 12080

deleting social security coverage of an inmate of a penal institution who

works for a private employer outside the institution while participating

in a work release program. Section 124 of H.R. 12080 was later deleted on

the floor of the Senate prior to its enactment as P.L. 90-248. The

proceedings on the floor of the Senate with respect thereto produced the

following dialogue:

* * *

See Congressional Record-Senate, November 21, 1967 at p. 33510 et seq.