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November 8, 1962


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

This is an action by the plaintiff, Lonnie Sandusky, to review a final decision of the defendant Secretary, denying the plaintiff's application for old-age insurance benefits as authorized by the Social Security Act, as amended, 42 U.S.C.A. §§ 402, 413, and 414 (1961 Supp.). This court has jurisdiction of the action pursuant to Sec. 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g). The applicable section of the statute provides:

    "* * * 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, * * *."

On May 31, 1960, plaintiff filed his application for old-age insurance benefits. The application was subsequently denied on the ground that plaintiff was not fully insured, that is, the Act (Sec. 414) required that he have 13 quarters of coverage, or to have quarters of coverage in all but four calendar quarters after 1954 and before the quarter in which he reached retirement age, it having been shown that the plaintiff had only three quarters of coverage at that time. The plaintiff thereafter requested a reconsideration of said denial, and upon reconsideration the Bureau of Old-Age and Survivors Insurance affirmed the denial of the application.

The reconsideration determination reflected that at that time the plaintiff had been credited with an additional three quarters of coverage, giving him a total of six quarters which was still not enough to grant the benefits he sought under his original application.

The plaintiff thereafter requested a hearing before a hearing examiner, and the hearing was held at the Arkansas State Tuberculosis Sanatorium on August 21, 1961.

It may be noted that between the time plaintiff filed his application on May 31, 1960, and the time of his hearing in August 1961, the Social Security Act, Sec. 214, had been amended twice, each amendment lessening the number of quarters of coverage necessary in order for an individual to be fully insured (see Sec. 204(a) of Public Law 86-778, 74 Stat. 948, and 42 U.S.C.A. § 414 (1961 Supp.)). By the 1960 amendment the plaintiff would have been eligible for benefits with eight quarters of coverage instead of 13 quarters required by the Act at the time his application was filed, and by the 1961 amendment he was eligible with only six quarters of coverage, which by this time he had credited to his account. Since the passage of the 1961 amendment, under which the plaintiff became eligible for old-age insurance benefits with only six quarters of coverage, he applied for and was granted benefits of $40.00 per month effective August 1961.

At the time plaintiff's hearing came on before the hearing examiner, the only question to be decided was whether or not plaintiff had the 13 quarters of coverage required by the Act at the time his application had been filed.

However, since the 1960 amendment, as stated above, would have made plaintiff eligible for benefits if he could show he had eight quarters of coverage (and he contended he had that many), the hearing examiner, under the authority granted to him by Social Security Regulations, 20 C.F.R. § 404.924, extended the scope of the hearing in order to determine if plaintiff had more than the six quarters of coverage which had been granted to him. Resolution of this question would not only determine his rights as of the time of his original application, but would also be determinative of his rights under the 1960 amendment and thus prevent the necessity for a later appeal by plaintiff on the issue of his eligibility under the 1960 amendment.

The hearing examiner took testimony from the plaintiff and received documentary evidence. He considered the entire case de novo and rendered a decision on August 30, 1961, finding that "the evidence is insufficient to establish that claimant is entitled to quarters of coverage for social security purposes in addition to the six quarters with which he has heretofore been credited." Plaintiff's application was accordingly denied.

Thereafter the plaintiff requested the Appeals Council to review the hearing examiner's decision, and on January 3, 1962, the Appeals Council denied plaintiff's request for review. The decision of the hearing examiner therefore became the final decision of the defendant Secretary.

Plaintiff filed the instant action in this court on March 5, 1962, and in due time the defendant filed his answer together with a certified copy of the transcript of the record, including the evidence upon which the findings and decisions complained of herein are based.

On October 9, 1962, the court wrote the attorney for the plaintiff, after having advised him in several prior communications to submit a brief in support of the plaintiff's contentions, in which was contained the following statement:

    "This court is not disposed to enter an order
  dismissing this appeal for lack of prosecution, or
  affirming the decision of the Secretary of Health,
  Education and Welfare upon its own determination;
  therefore claimant has until October 29, 1962, in
  which to submit a brief on the merits as reflected by
  the transcript along with such additional documentary
  evidence as the claimant sees fit to submit in
  support of his contention that he is entitled to a
  judgment based upon eight quarters. However, if
  claimant does not see fit to submit such material
  within the above date, ...

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