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LERNER v. RICHARDSON

March 27, 1975

Sidney LERNER
v.
Elliot RICHARDSON


Broderick, District Judge.


The opinion of the court was delivered by: BRODERICK

BRODERICK, District Judge.

 Claimant became totally disabled on October 26, 1969, as a result of a heart condition. On January 28, 1970, the claimant filed an application for disability benefits. Based on this application a determination of award was made that the claimant was entitled to disability benefits as of May 1970. The claimant requested reconsideration on the ground that the formula which was used to compute the amount of his benefits was erroneous. After the reconsideration, a determination was made on October 8, 1970 that the amount of benefits being paid the claimant was correct. On March 29, 1971, the claimant filed a request for a hearing. Subsequent to the hearing, the Administrative Law Judge issued a decision on July 23, 1971 holding that the formula used to compute the claimant's benefits was correct and that the claimant was not entitled to additional benefits. On September 10, 1971, a request for review of the Administrative Law Judge's action was filed. The Appeals Council on February 25, 1972, upheld the Administrative Law Judge's decision.

 The claimant is a medical doctor who was self-employed up until his disability in October 1969, except for the period from February 21, 1953 to February 25, 1955, *fn1" during which time he served in the U.S. Air Force. Prior to 1965, self-employment income received by an individual in the exercise of his profession as a physician was specifically excluded from his earning record by the Social Security Administration. See § 211(c) of the Social Security Act. After the 1965 Amendments to the Social Security Act (P.L. No. 89-97, Section 311(a)(1), 79 Stat. 380, July 30, 1965), this exclusion was eliminated. The amendment specifically provided that the elimination of the exclusion "shall apply only with respect to taxable years ending on or after December 31, 1965."

 In computing the primary insurance benefits payable under the Act, the wage earner's "average monthly wage" as defined in 42 U.S.C. § 415(b) is the critical factor.

 Section 415(b) provides in part:

 
"(1) * * * An individual's 'average monthly wage' shall be the quotient obtained by dividing --
 
"(A) the total of his wages paid in and self-employment income credited to his 'benefit computation years' (determined under paragraph (2)), by
 
"(B) the number of months in such years.
 
"(2) (A) The number of an individual's 'benefit computation years' shall be equal to the number of elapsed years (determined under paragraph (3) of this subsection), reduced by five; except that the number of an individual's benefit computation years shall in no case be less than two.
 
"(C) For purposes of subparagraph (B), 'computation base years' include only calendar years in the period after 1950 and prior to ...

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