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FINLEY v. FINCH

April 8, 1970

Lyman H. FINLEY, Plaintiff,
v.
Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant


Gourley, Senior District Judge.


The opinion of the court was delivered by: GOURLEY

This is an action under section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare. The decision rendered on February 25, 1969, became the final decision of the Secretary when the Appeals Council denied plaintiff's request for review on April 4, 1969. It holds that plaintiff is not entitled to a period of disability or disability insurance benefits based on his application filed August 16, 1967.

 Each of the parties has submitted to the Court a Motion for Summary Judgment.

 The Court has considered the pleadings, the full and complete record certified to the Court by the Commissioner, and the briefs of counsel.

 The only issue before the Court in this action is whether the final decision of the Secretary is supported by substantial evidence.

 To qualify for disability insurance benefits and a period of disability under sections 223 and 216(i) of the Social Security Act, 42 U.S.C.A. §§ 423 and 416(i), an individual must meet the insured status requirements of these sections, be under age 65, file an application for disability insurance benefits and a period of disability, and be under a "disability" as defined in the Act.

 For purposes of establishing a period of disability under section 216(i) of the Social Security Act, as amended, the same disability provisions as contained in section 223(d)(1)(A), (2)(A), (3) and (5) of the Act are applied.

 Plaintiff meets the special insured status requirements of the Act through September 30, 1970. Therefore, plaintiff must establish that his disability began prior to April 4, 1969; the date the Secretary's decision became final. 42 U.S.C.A. § 423(d) and 416(i)(2)(G).

 The term "disability" is defined in section 223 to mean:

 
"(d)(1) * * *
 
"(A) inability to engage in any gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months: * * *
 
"(B) * * *
 
"(2) For purposes of paragraph (1)(A) - *fn1"
 
"(A) an individual * * * shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), 'work which exists ...

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