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BLEVINS v. FLEMING

January 29, 1960

BOBBIE L. BLEVINS, PLAINTIFF,
v.
ARTHUR S. FLEMING (FLEMMING), SECRETARY OF HEALTH, EDUCATION, AND WELFARE, UNITED STATES OF AMERICA, DEFENDANT.



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

This is an action brought by the plaintiff under Sec. 205(g) of the Social Security Act, as amended, 42 U.S.C.A. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare. The plaintiff seeks to establish her rights and claims for childhood disability benefits and to establish a period of disability as provided by Sec. 202(d) (1) et seq., of the Social Security Act, as amended, 42 U.S.C.A. § 402(d)(1).

The plaintiff filed her original application with the Bureau of Old-Age and Survivors Insurance, Social Security Administration, on October 22, 1956. Her claim was based on the wage record of her father, Troy D. Blevins, who was awarded old-age insurance benefits on November 22, 1954. On April 27, 1957, the Bureau informed the plaintiff that it had determined that the available evidence did not indicate that her impairment was so severe before she reached age 18 as to have prevented her from engaging in any substantial work. On July 15, 1957, plaintiff's father requested reconsideration, and on January 27, 1958, the Bureau informed the plaintiff that the initial determination was affirmed. Thereafter, on March 21, 1958, plaintiff's father filed a request for a hearing, and after due notice a hearing was held at Fort Smith, Arkansas, on February 20, 1959.

The plaintiff was not represented by counsel at the hearing, but the Referee aided her in developing her case and was very courteous to the plaintiff and her family. The hearing consisted of oral testimony by the plaintiff, her father, Troy D. Blevins, a sister, Mrs. Carl Brownlee, and a cousin, Mrs. Agnes Whitlock. In addition, the Referee had before him medical reports from three doctors.

On March 23, 1959, the Referee filed his decision denying the plaintiff's applications. The plaintiff has exhausted the administrative remedies, and the Referee's decision has become the final decision of the Secretary.

This action to review that decision was filed on October 16, 1959, and on December 16, 1959, defendant filed his answer together with a certified copy of the transcript of the administrative record, including the evidence presented at the hearing before the Referee and the Referee's written decision. The applicable statutory law in this case is contained in 42 U.S.C.A. § 402(d)(1), which provides:

    "(d)(1) Every child (as defined in section 416(e)
  of this title) of an individual entitled to old-age
  insurance benefits, or of an individual who dies a
  fully or currently insured individual after 1939, if
  such child —
    "(A) has filed application for child's insurance
  benefits,
    "(B) at the time such application was filed was
  unmarried and either (i) had not attained the age of
  eighteen, or (ii) was under a disability as defined
  in section 423(c) of this title which began before he
  attained the age of eighteen, and
    "(C) was dependent upon such individual at the time
  such application was filed, or, if such individual
  had died, was dependent upon such individual at the
  time of such individual's death,
  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 the first month in which any of the
  following occurs: such child dies, marries, is
  adopted (except for adoption by a stepparent,
  grandparent, aunt, or uncle subsequent to the death
  of such fully or currently insured individual),
  attains the age of eighteen and is not under a
  disability (as defined in section 423(c) of this
  title) which began before he attained such age, or
  ceases to be under a disability (as so defined) on or
  after the day on which he attains age eighteen."

Disability is defined in Sec. 423(c)(2) of Title 42, U.S.C.A., as:

    "The term `disability' means 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."

It is not seriously controverted that the plaintiff is dependent upon her father, Troy D. Blevins. The only question for determination by the Referee, therefore, was whether the plaintiff was under a disability which began before she attained the age of 18 and continued until she filed her claim. His determination of this question is the basis of this review. The general rules which must be followed by this court in the instant case are well established. 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. ...

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