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November 17, 1969

Margaret S. HAYS, Plaintiff,
Robert FINCH, Secretary of Health, Education and Welfare, Defendant

The opinion of the court was delivered by: MARSH

 MARSH, Chief Judge.

 This is an action brought pursuant to § 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), for review of the decision of the Appeals Council, Social Security Administration, (1) that plaintiff's late husband, Gordon Lawrence Hays, was not disabled before July 21, 1964, and (2) that adjustments in connection with certain overpayments to plaintiff should not be waived. With his answer to plaintiff's complaint, defendant filed a certified copy of the transcript of the record of the proceedings before the Social Security Administration in compliance with § 205(g) of the Act, supra, and subsequently cross motions for summary judgment were filed by the parties.

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

"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). "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).


 Plaintiff filed an application under §§ 216(i) and 223 of the Act, as amended, 42 U.S.C. §§ 416(i) and 423, for establishment of a period of disability and for disability insurance benefits in connection with the earnings record of Mr. Hays on October 14, 1964 alleging that he became disabled in November 1962. Thereafter, on October 29, 1964, the Revenue Agent at Mayview State Hospital filed a separate application alleging that Mr. Hays became disabled on July 21, 1964. Applications for wife's and children's benefits based on the wage earner's disability were also filed. By initial and reconsidered decisions the Administration found that Mr. Hays was not disabled within the meaning of the Act. No further action on these applications was taken.

 On June 8, 1966, Mrs. Hays filed another application for disability benefits on behalf of Mr. Hays. The Administration having learned that Mr. Hays died on July 1, 1966 as a result of cardiac heart failure due to coronary artery insufficiency and arteriosclerotic cardiovascular disease (R. p. 155), found that he was under a disability from July 1, 1965 to the date of his death. Plaintiff then requested reconsideration, contending that the disability began in 1962. This contention was rejected by the Division of Reconsideration, Bureau of Disability Insurance, and plaintiff requested a hearing with the Bureau of Hearings and Appeals. At the hearing Rev. Ernest E. Logan and plaintiff testified in support of an onset date of November, 1962. Thereafter, the hearing examiner found that:

"(6) The evidence fails to establish, after considering section 404.1519(c)(2)(iii), that wage earner's impairments prevented him from engaging in substantial gainful activity, before July 1, 1965, for any continuous period which lasted or could be expected to last at least twelve continuous months." (R. p. 33).

 The Appeals Council modified this decision, and found an onset date of July 21, 1964 which was the date of Mr. Hays' admission to Mayview State Hospital. This decision was based on a finding of a disabling mental condition rather than on the heart condition relied on at the lower administrative levels.

 In our opinion, the final decision of the Secretary that the wage earner was not disabled prior to July 21, 1964, is based upon substantial evidence of record, and therefore it must be affirmed.

 The burden of proving a disability is initially on the claimant. Henry v. Gardner, 381 F.2d 191 (6th Cir. 1967), cert. denied 389 U.S. 993, 88 S. Ct. 492, 19 L. Ed. 2d 487 (1967). The evidence advanced in support of establishment of a disability prior to July 21, 1964 did not meet this burden.

 The wage earner was born on December 8, 1914, went to the 10th grade in school and spent most of his working life as a salesman. He began having difficulties in his work and personal life in 1955 because of excessive use of alcohol. On September 2, 1955, his employment as a salesman for the A. E. Staley Manufacturing Company was terminated. The reason given was "'unsatisfactory work'." (R. p. 288). Dr. McWilliams reported that on October 25, 1956, the wage earner had "severe nervousness from drinking too much alcohol." (R. p. 285). He was admitted to St. Francis Hospital on February 1, 1959. He was diagnosed as a routine alcoholic with a fair prognosis and discharged on February 5, 1959. Mr. Hays was again hospitalized from April 28, 1961 to May 3, 1961 at Mercy Hospital of Johnstown, and his condition was described as "Acute Alcoholism". (R. p. 246). He was put under the supervision of Alcoholics Anonymous and was sent to Chit Chat Farms, a rehabilitation center. A job was secured for him at the Galen Hall Hotel, Wernersville, Pennsylvania in 1962, but he either wandered off or was dismissed because of unusual behavior in November of that year. The manager was of the opinion that he was "mentally deranged" at that time. (R. p. 284). At about the same time, Rev. Logan became frightened of him and noted that he was violent and that he thought he was ...

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