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GENTILE v. GARDNER

February 26, 1969

William GENTILE, Plaintiff,
v.
John W. GARDNER, Secretary of Health, Education and Welfare, Defendant



The opinion of the court was delivered by: MARSH

 MARSH, District Judge.

 On December 20, 1965, plaintiff filed with the Social Security Administration an application for a period of disability under § 216(i) of the Social Security Act, as amended, 42 U.S.C. § 416(i), and for disability insurance benefits under § 223 of the Act, as amended, 42 U.S.C. § 423, alleging that he first became unable to engage in any substantial gainful activity on January 9, 1962. His claims were denied by the Evaluation and Authorization Branch and by the Division of Reconsideration, Bureau of Disability Insurance of the said Administration, and at plaintiff's request a hearing was had before a hearing examiner of the Bureau of Hearings and Appeals who also denied plaintiff's claims. On June 30, 1967, the Appeals Council of the Social Security Administration advised plaintiff that his request for review by it of the hearing examiner's decision was denied; whereupon, pursuant to § 205(g) of the Act, as amended, 42 U.S.C. § 405(g), plaintiff commenced this action to obtain a judicial review of the decision of the Secretary denying plaintiff's claim.

  On defendant's motion, the court, pursuant to § 205(g) of the Act, remanded the case to the Secretary for further action on December 26, 1967. *fn1" Another hearing was held, and the hearing examiner recommended that the Appeals Council deny plaintiff's claims. This recommendation was adopted by the Appeals Council, and it became the final decision of the Secretary under § 205 of the Act. See: Hodgson v. Celebrezze, 312 F.2d 260, 261 (3d Cir. 1963). The Secretary *fn2" then requested that the civil action be reopened, and his answer to plaintiff's complaint was filed. With his answer, defendant filed a certified copy of the transcript of the record of proceedings before the Social Security Administration in compliance with § 205(g) of the Act, supra, and subsequently moved for summary judgment.

 Section 205(g), supra, provides in its pertinent part as follows:

 
"As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. 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 * * *."

 Under § 205(g) and under the Administrative Procedure Act, 5 U.S.C. § 1001 et seq., we are limited to "ascertaining whether on the record as a whole there is substantial evidence to support the Secretary's findings of fact." Goldman v. Folsom, 246 F.2d 776, 778 (3d Cir. 1957); Ferenz v. Folsom, 237 F.2d 46 (3d Cir. 1956). And while "in discharging that duty we must keep in mind * * * that 'courts must now assume more responsibility for the reasonableness and fairness' of decisions of federal agencies * * *", Goldman v. Folsom, supra, 246 F.2d p. 778, citing Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951), we "may not substitute * * * [our] inferences for those of the referee which are supported by substantial evidence." Ferenz v. Folsom, supra, 237 F.2d p. 49, citing, inter alia, Livingstone v. Folsom, 234 F.2d 75 (3d Cir. 1956). "Our judicial duty therefore is to satisfy ourselves that the agency determination has warrant in the record, viewing that record as a whole, and a reasonable basis in law. " Boyd v. Folsom, 257 F.2d 778, 781 (3d Cir. 1958). See also, Braun v. Ribicoff, 292 F.2d 354, 357 (3d Cir. 1961).

 The plaintiff last met the earnings requirements of the Act on June 30, 1964. *fn3" Therefore, the Social Security Administration could have awarded disability benefits to plaintiff only if he proved that he was disabled on or before that date.

 The record discloses that two other disability benefits applications were filed by plaintiff and denied after hearings by the Administration. The second of these was filed on April 1, 1964. After initial administrative denials and an adverse ruling by a hearing examiner, plaintiff requested a review by the Appeals Council. The request was denied on June 15, 1965. Since plaintiff did not institute an action in the District Court within the prescribed time, the Appeals Council's decision became final. Subsection 205(h) of the Act provides that:

 
"The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. * * *" 42 U.S.C. § 405(h).

 Thus, the Appeals Council's decision is final and has a res judicata effect on plaintiff's present Social Security claim insofar as it relates to an alleged disability which existed on or prior to March 31, 1964, the day before his second application. Hobby v. Hodges, 215 F.2d 754 (10th Cir. 1954); Moore v. Celebrezze, 252 F. Supp. 593 (E.D.Pa.1966), aff'd per curiam, 376 F.2d 850 (3d Cir. 1967).

 With regard to the current application: "'[The] test for disability consists of two parts: (1) a determination of the extent of the applicant's physical or mental impairment, and (2) a determination whether that impairment results in an inability to engage in any substantial gainful activity.'" Bujnovsky v. Celebrezze, 343 F.2d 868, 870 (3d Cir. 1965); Janek v. Celebrezze, 336 F.2d 828, 833 (3d Cir. 1964); Hodgson v. Celebrezze, supra, 312 F.2d at p. 263; Klimaszewski v. Flemming, 176 F. Supp. 927, 931 (E.D.Pa.1959).

 Section 223(d) of the Act, 42 U.S.C. § 423(d), as added by the "Social Security Amendments of 1967", § 158(b), 81 Stat. 868, defines "disability" for purposes of ...


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