20 CFR 404.398(e)(1)

SSR 74-14c

Antweiler v. Secretary, U.S.D.C., W.D. N.Y., Civil No. 1971-134 (3/9/73)

Where a claimant whose husband died on March 11, 1960, filed a claim for disabled widow's benefits, based on her deceased husband's earnings record, alleging onset of disability on March 11, 1960, at age 40, and the earliest medical evidence of record was a report of a September 1969 examination, held, there was no medical evidence to support her claim of disability during the seven year period from her husband's death to March 31, 1967, and since in order for the claimant to be entitled to disabled widow's benefits, she must have been disabled as required by the Social Security Act (42 U.S.C. 402(e)(5)) within seven years after the death of her husband, her claim must be denied.

CURTIN, District Judge: This is an action brought under 42 U.S.C. § 405(g) for review of a final decision of the Secretary of Health, Education and Welfare denying plaintiff's application for disability benefits. Defendant seeks summary judgment based on the pleadings, the record and the decision below.

The plaintiff filed an application for disabled widow's insurance benefits on October 7, 1969 alleging that she became unable to work on March 11, 1960 at age 40. The application was denied initially and denied also on reconsideration by the Social Security Administration. A hearing was held on September 28, 1970 and plaintiff's claim was considered de novo. On October 6, 1970, the hearing examiner, after hearing plaintiff's testimony and considering the medical reports, found that plaintiff was not entitled to disability benefits. That became the final decision of the Secretary of Health, Education and Welfare when the appeals Council approved the hearing examiner's decision on January 27, 1971.

According to 42 U.S.C. § 402(e)(5)(C), in order for plaintiff to be entitled to disabled widows' benefits, she must have been disabled within seven years after the death of her husband. Thus, since plaintiff's husband died on March 11, 1960, plaintiff must have been disabled on or before March 31, 1967 in order to be entitled to disability benefits.

This court's function in reviewing decisions of the Secretary of Health, Education and Welfare under 42 U.S.C. § 405(g) is a limited one. The question before this court is whether the Secretary's findings as to the relevant facts are supported by substantial evidence. Franklin v. Secretary of Health, Education and Welfare, 393 F.2d 640 (2d Cir. 1968).

The evidence relied upon by the Secretary is as follows. Dr. Samuel Militello submitted a report revealing that he first examined plaintiff on September 30, 1969. He found at that time that she was suffering from hypertension, hypertensive heart disease and an umbilical hernia. His opinion was that she was unemployable. A report of x-rays form Dr. G. J. Culver plated December 22, 1969 showed no enlargement of the heart and vascularity within normal limits. The report also revealed no fracture of the pelvis, no dislocation or bony pathology and minimal osteophytic overgrowth.

A consultative internist examination was performed by Dr. Stuart L. Vaughn on January 7, 1970. His impressions were that plaintiff was suffering from (1) edema of the feet from tight shoes; (2) limp and abnormal gait from shortened left leg; (3) mild to moderate arterial hypertension; (4) tachycardia; (5) generalized arteriosclerosis; (6) celafic fibroid uterus; (7) very small umbilical hernia, and (8) evidence of nervous disorder. The doctor commented that, while she might be unable to work presently, she could be rehabilitated. Plaintiff testified to her medical impairments and alleged that they were in existence before March 31, 1967. However, there was no medical evidence submitted to support that allegation. The earliest medical report in the record is the report of Dr. Militello's examination of September 30, 1969, more than two years after the close of the eligibility period. Thus, while the medical evidence in the record for the period subsequent to 1969 is somewhat conflicting, it is clear that there was no objective medical evidence to support plaintiff's claim of disability during the insured period prior to March 31, 1967.

Under these circumstances, the Secretary can refuse to find the plaintiff disabled. Peterson v. Gardner, 391 F.2d 388 (2d Cir. 1968). Thus, this court finds that the Secretary's decision is supported by substantial evidence, and defendant's motion for summary judgment is granted.

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