SSR 74-6c: SECTIONS 216(i) and 223 (42 U.S.C. 416(i) and 423) --
DISABILITY -- ISSUES DETERMINABLE BY SECRETARY IN SINGLE HEARING --
CESSATION OF DISABILITY
20 CFR 404.924, 404.933, 404.1523 and 404.1539
JOHN G. MYERS v. RICHARDSON, 471 F.2d 1265 (6th Cir., 12/28/72)
Where claimant for disability insurance benefits who alleged total
disability continuing since November 20, 1965, had his claim denied at all
administrative levels, and upon subsequent remand by federal district
court for the taking of additional evidence was granted a "closed" period
of disability and disability insurance benefits based on a finding of
disability from November 20, 1965, until March 10, 1967, but he continued
judicial action, appealing decision terminating his benefits, contending
that issue of termination must be resolved in separate proceedings on
basis of additional evidence, held, Secretary has power to
determine in single hearing all issues pertaining to fact, extent, and
duration of disability, and whether such disability has terminated and, if
his findings are supported by substantial evidence, they must be
KENT, Circuit Judge. Appellant applied for disability benefits
under the provisions of the Social Security Act, Title 42 U.S.C. § 423. He
claimed that he became totally disabled on November 20, 1965, and that his
disability was permanent in nature. His claim for disability as denied
administratively at all levels, and he brought suit in the United States
District Court under the provisions of Section 205(g) of the Act, 42
U.S.C. § 405(g). The District Court remanded the case to the Secretary for
the Hearing Examiner granted benefits for the period from June, 1966, to
May, 1967, after concluding that the appellant had been totally disabled
from November 20, 1965 until March 10, 1967. The appellant appealed and
the award of the Hearing Examiner was affirmed administratively. The
decision was again reviewed by the United States District court which
entered judgement for the appellee. From the judgement this appeal was
The issue presented is stated in the appellant's brief, as follows:
When the Secretary of Health, Education and Welfare, resolves a conflict
in the evidence between total disability an less than total disability in
favor of a finding of total disability within a given period of
eligibility, a further finding that disability terminated on a specific
date, based upon that same medical evidence which specifically fails to
indicate a fact of termination of disability, is not supported by
substantial evidence, as required by 42 U.S.C.A. Section 405(g).
Thus, in essence the only question are whether the Secretary was required
to take additional evidence as to the termination of the disability after
having considered all the evidence as to the nature, extent and duration
of the appellant's disability and whether, it not, there was substantial
evidence to support the findings of the Secretary.
Under the statute judicial review of decisions of the Secretary is very
limited. As stated by this Court in Floyd v. Finch, 441 F.2d
His findings of fact, if supported by substantial evidence, are
conclusive, 42 U.S.C. § 405(g) ; Rose v. Cohen, 406 F.2d 753 (6th Cir.
1969). courts are not permitted to try the cases de novo; Walters v.
Garner, 397 F.2d 89 (6th Cir. 1968).
Courts may not resolve conflicts in the evidence or decide questions of
credibility, Moon v. Celebrezze, 340 F.2d 926 (7th Cir. 1965).
or as stated in greater length in Lane v. Gardner 374 F.2d
612, 616 (1967):
It was for the Secretary and his examiner, as the fact finders, to pass
upon the credibility of the witnesses and weigh and evaluate and weigh
their testimony. Celebrezze v. Sutton, 388 F.2d 417, 421 (CA 8, 1964):
Thomas v. Celebrezze, 321 F.2d 541, 543 (CA 4, 1964) ; Miller v. Ribicoff,
198 F.Supp. 819, 821 (E.D.Mich. 1961). Judicial review of the Secretary's
findings of fact is limited to inquiry whether there is substantial
evidence to support such findings. Section 205 (g) of the Act, 42 U.S.C. §
405(g); May v. Gardner, 362 F.2d 616, 618 (CA 6, 1966); King v.
Celebrezze, 3441 F.2d 108, 109 (CA 6, 1965). We hold that there was
substantial evidence supporting the Secretary's finding that plaintiff
with his disabilities was not foreclosed from any gainful employment. That
the district Court or ourselves might arrive at a different factual
conclusion is irrelevant. The courts do not try these factual issues do
novo. Also Brooks v. Gardner, 357 F.2d 110, 111 (CA 5, 1966).
The Act itself does not provide for a closed period of benefits. However,
we think it clear that such a closed period of benefits may be awarded.
Title 42 U.S.C. § 416(i)(2)(D), which provides:
(D) A period of Disability shall end with the close of whichever of the
following month is the earlier: (i) the month preceding the month in which
the individual attains age 65, or (ii) the second month following the
month in which the disability ceases.
and 42 U.S.C. § 416(i)(2)(E):
(E) Except as other wise provided in subparagraph (F), no application for
a disability determination which is filed more than 12 months after the
month prescribed by subparagraph (D) as the month in which the period of
disability ends (determined without regard to subparagraph (B) and this
subparagraph) shall be accepted as an application for purposes of this
clearly demonstrates that the framers of the Act contemplated that some
applications for benefits would be made which would result in an award of
benefits after the claimant had recovered from his disability.
Notwithstanding the provisions of Title 42 U.S.C. § 425 which makes
provision of the suspension of benefits when the Secretary comes into
possession of information that the disability has terminated it should be
obvious that multiple hearings would be a waste of time and effort.
We, therefore, hold that the Secretary has the power to determine in a
single hearing the issues of the fact of the claimant's disability, the
extent of such disability, the duration such disability and whether such
disability has terminated.
The remaining issue is whether there was substantial evidence to support
the Secretary's finding of termination of the disability. 42 U.S.C. §
405(g). It is the position of the appellant that when Secretary rejects
testimony to the effect that the claimant was never disabled that he must
then necessarily reject the same evidence in determining whether or not
the disability i one of a continuing nature. It is the appellant's
position that on this basis there was no medicalevidence of the
termination of the permanent disability which the Secretary found had
terminated. We reject the premise upon which appellant's position is
based. The burden of establishing continuing disability is on the
appellant. Henry v. Gardner, 381 F.2d 191 (6th Cir. 1967),
Cert. Denied 389 U.S. 993 (1967), Rehearing Denied 389
U.S. 1060 (1968). There can be no doubt of the authority of the Secretary
to terminate disability payments under 42 U.S.C. § 425. The applicable
cases were reviewed in Marker v. Finch, 322 F.Supp. 905,
909, 910 (D.Del. 1971), where it was said:
This case, unlike the majority of reported cases arising under sections
216(i) and 223 of the Act, involves a termination of disability benefits
rather than an initial denial of benefits. However, the standards to be
applied by the Court in reviewing a termination of benefits do not differ
materially from those applied in reviewing denial of benefits. A prior
determination of the Secretary that a claimant had a disability which
entitled him to benefits does not bar a later termination of those
benefits. Dean v. Flemming, 180 F.Supp. 553, 556 (E.D.Ky. 1959); Mayes v.
Secretary of Health, Education, and Welfare, 300 F.Supp. 76, 79 (M.D.N.C.
1968); see also Polotti v. Folsom, 167 F.Supp. 809, 811 (E.D.N.Y 1957),
aff'd 277 F.2d 864 (C.A. 2, 1960). In a case in which benefits have been
terminated, as in a case in which benefits have been denied, the burden of
proving disability is on the claimant, not on the Secretary. Watson v.
Gardner, 246 F.Supp. 837, 838-839 (N.D. Ga. 1965); Maynard v. Celebrezze,
209 F.Supp. 523, 524 (S.D.W.Va. 1962). Thus the claimant has the burden of
proving that his disability did, in fact, continue.
The appellant concedes in his brief that the medical testimony in regard
to the extent of the appellant's disability and the period of time for
which he was disabled is in conflict. As previously stated it is for the
Secretary to resolve issues of fact and while a court might reach a
different conclusion on the same evidence it is without the power to do
so. We conclude that there was substantial evidence of the termination of
appellant's disability to sustain the findings of the Secretary.
The judgment of the District Court is affirmed.
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