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November 26, 1957


The opinion of the court was delivered by: John E. Miller, District Judge.

  By this action plaintiff seeks to establish a period of disability under the Social Security Act, 42 U.S.C.A. § 416(i). Plaintiff has exhausted her administrative remedies, and brings the instant suit under 42 U.S.C.A. § 405(g), requesting the Court to review the adverse decision of the Referee of the Office of Appeals Council, Social Security Administration, Department of Health, Education and Welfare. Plaintiff sought a review of the Referee's decision by the Office of Appeals Council, and was denied such review on February 20, 1957.

The instant action was filed April 3, 1957, and in due time the Secretary of the Department of Health, Education and Welfare, in accordance with 42 U.S.C.A. § 405(g), filed a certified copy of the transcript of the administrative record, including the evidence upon which the findings and decision of the Referee are based.

The jurisdictional statute, 42 U.S.C.A. § 405(g), supra, provides, inter alia:

    "* * * The court shall have power to enter, upon
  the pleadings and transcript of the record, a
  judgment affirming, modifying, or reversing the
  decision of the Secretary, with or without remanding
  the cause for a rehearing. The findings of the
  Secretary as to any fact, if supported by substantial
  evidence, shall be conclusive * * *."

In a very recent case this Court set out some of the general rules governing cases of this type, and the Court feels that it would be advisable to restate those rules in this opinion. In Fuller v. Folsom, D.C.W.D.Ark., 155 F. Supp. 348, 349, the general rules were stated as follows:

    "The burden of proof, both before the Referee and
  in the instant proceeding, is upon the plaintiff.
  Thurston v. Hobby, D.C.Mo., 133 F. Supp. 205; Norment
  v. Hobby, D.C.Ala., 124 F. Supp. 489. Not only are the
  findings of fact made by the Referee, if supported by
  substantial evidence, conclusive, but a majority of
  courts also extend the finality of the Referee's
  findings to inferences and conclusions which he draws
  from the evidence, if there is a substantial basis
  for the conclusions. Rosewall v. Folsom, 7 Cir.,
  239 F.2d 724; United States v. LaLone, 9 Cir.,
  152 F.2d 43; Social Security Board v. Warren, 8 Cir.,
  142 F.2d 974; Walker v. Altmeyer, 2 Cir., 137 F.2d 531; McGrew
  v. Hobby, D.C. Kan., 129 F. Supp. 627; Hemmerle v.
  Hobby, D.C.N.J., 114 F. Supp. 16; Schmidt v. Ewing,
  D.C.Pa., 108 F. Supp. 505; Holland v. Altmeyer,
  D.C.Minn., 60 F. Supp. 954.
    "The Referee's conclusions of law, however, are not
  binding upon the Court, although they are entitled to
  great weight. See, Miller v. Burger, 9 Cir.,
  161 F.2d 992; Carroll v. Social Security Board, 7 Cir.,
  128 F.2d 876; Ayers v. Hobby, D.C.Va., 123 F. Supp. 115;
  Ray v. Social Security Board, D.C.Ala., 73 F. Supp. 58.
    "And in reviewing the decision of the Referee, the
  Court must not abdicate its conventional judicial
  function. Universal Camera Corp. v. National Labor
  Relations Board, 340 U.S. 474, 490, 71 S.Ct. 456,
  466, 95 L.Ed. 456; Shields v. Folsom, D.C. Pa.,
  153 F. Supp. 733, 734."

These general rules are well established, and must be followed by the Court in the instant case.

The issue presented to the Referee was whether plaintiff had established a period of disability within the meaning of 42 U.S.C.A., § 416(i) which provides, inter alia:

    "(i)(1) Except for purposes of sections 402(d),
  423 and 425 of this title, 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 to be of
  long-continued and indefinite duration, * * *. An
  individual shall not be considered to be under a
  disability unless he furnishes such proof of the
  existence thereof as may be required. * * *
    "(2) The term `period of disability' means a
  continuous period of not less than six full calendar
  months (beginning and ending as hereinafter provided
  in this subsection) during which an individual was
  under a disability (as defined in paragraph (1) of
  this subsection). No such period shall begin as to
  any individual unless such individual, while under a
  disability, files an application for a disability
  determination with respect to such period; and no
  such period shall begin as to any individual after
  such individual attains the age of sixty-five. * * *
    "* * * A period of disability shall end with the
  close of the last day of the first month in which
  either the disability ceases or the individual
  attains the age of sixty-five."

As noted by this Court in Fuller v. Folsom, supra, there apparently have been no generally reported decisions construing the disability freeze provision of the statute, the only decisions being memorandum decisions reported in looseleaf services. Thus the Congressional record should be helpful to the Court in construing the statute. Senate Report 1987, July 27, 1954; House Report No. 1698, May 28, 1954; and Conference Report No. 2679, August 20, 1954, may be found in Volume 3, U.S. Code Congressional and Administrative News, 1954, page 3710 et seq.

Beginning at page 3729 it is said:

"A. Need for disability freeze

    "Under present law old-age and survivors insurance
  rights are impaired or may be lost entirely when
  workers have periods of total disability before
  reaching retirement age. Unless the worker is already
  permanently insured when he becomes disabled, he may
  have lost his fully insured status when he reaches
  retirement age because the entire period of his
  disability is included in the elapsed time which is
  the basis for determining his insured status. When
  benefit amounts are computed under present law,
  whether for retirement benefits or survivors
  benefits, his total earnings after a specified
  starting date and up to age 65 or death are divided
  by the total elapsed time, including any periods of
  total disability, in determining his average monthly
  wage, on which monthly benefits are based. A freeze
  of old-age and survivors insurance status during
  extended total disability would remove this
  disadvantage by preventing such periods of disability
  from reducing or denying retirement and survivors
  benefits. In addition there is available to the
  disabled individual the 4- or 5-year dropout period
  provided by this bill for all persons.
    "Such a freeze provision is analogous to the
  `waiver of premium' commonly used in life insurance
  and endowment annuity policies to maintain the
  protection of these policies for the duration of the
  policyholder's disability. About 200 life-insurance
  companies (many of the largest) operating in the
  United States offer a `waiver of premium' clause to
  individuals purchasing ordinary life insurance. It
  has been estimated that about half of the standard
  ordinary life insurance issued currently is protected
  through `waiver of premium' in the event of the
  disability of the insured.

"B. Emphasis on rehabilitation

    "Your committee recognizes the great advances in
  rehabilitation techniques made in recent years and
  appreciates the importance of rehabilitation efforts
  on behalf of disabled persons. It is a
  well-recognized truth that prompt referral of
  disabled persons for appropriate vocational
  rehabilitation services increases the effectiveness
  of such services and enhances the probability of
  success. The bill is framed to carry out your
  committee's objective that disabled individuals
  applying for disability determinations be promptly
  referred to State vocational rehabilitation agencies,
  to the end that as many disabled individuals as
  possible may be restored to gainful work.

"D. Definition of disability

    "Only those individuals who are totally disabled by
  illness, injury, or other physical or mental
  impairment which can be expected to be of
  long-continued and indefinite duration may qualify
  for the freeze. The impairment must be medically
  determinable and preclude the individual from
  performing any substantial gainful work. * * *
    "There are two aspects of disability evaluation:
  (1) There must be a medically determinable impairment
  of serious proportions which is expected to be of
  long-continued and indefinite duration or to result
  in death, and (2) there must be a present inability
  to engage in substantial gainful work by reason of
  such impairment (recognizing, of course, that efforts
  toward rehabilitation will not be considered to
  interrupt a period of disability until the
  restoration of the individual to gainful activity is
  an accomplished fact). The physical or mental
  impairment must be of a nature and degree of severity
  sufficient to justify its consideration as the cause
  of failure to obtain any substantial gainful work.
  Standards for evaluating the severity of disabling
  conditions will be ...

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