SSR 80-4c: SECTION 202(d)(1)(B)(ii) (42 U.S.C. 402(d)(1)(B)(ii)) CHILDHOOD DISABILITY BENEFITS -- REQUIREMENTS FOR ENTITLEMENT -- ONSET OF DISABILITY PRIOR TO AGE 22

20 CFR 404.320(a)(4)(iii)

SSR 80-4c

LIEBERMAN v. CALIFANO, 1A Unempl. Ins. Rep. (CCH) ¶ 16036 (N.D. Ill. 1978), aff'd., 592 F.2d 986 (7th Cir. 1979)

The claimant at age 63 applied for child's benefits based on disability alleging that under section 202(d)(1)(B) of the Social Security Act she would be entitled to benefits if she proved that she had a current disability which stemmed from an impairment which began before she became age 22. Held, to establish entitlement under this section of the Act, the claimant must prove that her impairment had reached disabling severity before she became age 22.

CROWLEY, District Judge:

This action was initiated by claimant Sarah Lieberman pursuant to Section 205(g) of the Social Security Act [42 U.S.C. 405(g)] for review of the final decision of the Secretary of Health Education and Welfare denying her certain Social Security benefits under the provision for child's insurance benefits in Section 202(d) of the Act. [42 U.S.C. § 402(d)(1)(B)(ii)][1] Presently before the Court are cross motions for summary judgment. After review of the record under the narrow scope provided in 42 U.S.C. § 405(g) which allows us only to determine whether the final decision of the Secretary is supported by substantial evidence, based on the record as a whole, Moon v. Celebrezze, 340 F.2d 926 (7th Cir., 1965), the motion of the defendant for summary judgment is granted.

The plaintiff filed an application for disabled child's insurance benefits on December 1, 1973, alleging a disability since 1924 at age 15. The application was denied initially on April 24, 1974 and on reconsideration by the Bureau of Disability Insurance of the Social Security Administration, after the Illinois State Agency, upon evaluation of the evidence by a physician and a disability examiner had found that plaintiff was not under a disability prior to age 22. Plaintiff, her brother and her attorney appeared before an administrative law judge for a de novo hearing, and on December 23, 1976, he found that the plaintiff was not under a disability at age 22. This decision became the final decision of the Secretary after the Appeals Council approved that decision on April 14, 1977, following the receipt of additional evidence.

Sarah Lieberman is a 68 year old woman who was born on December 14, 1909 in Poland. In 1929, at the age of 19« she emigrated to the United States with her mother and brothers to be reunited with her father, Theodore, who had come earlier to work as a carpenter in this country. She attended school with much younger children for four or five years in order to learn English and eventually completed the eighth grade. Except for a brief period during World War II when she was employed as a salesperson in a bakery, the plaintiff never worked and she always, lived with her parents; since their deaths in 1957 and 1966 she has lived alone with occasional help from her relatives and renters in her house. She describes her disability as extreme nervousness, nervous "ticks," physical discomfort, and difficulty in socializing with other persons.

The record contains a statement from Dr. Clarence Krakow, a general practioner, who stated in 1970 that he had known plaintiff for about 20 years, but that he had only treated her with some "tonic" in 1947. His opinion was that she needed help and was not mentally capable of holding a job; he stated that she had spent her whole life with her parents. The plaintiff also submitted reports from visits to Edgewater Hospital in the early 1960's; physical examinations, x-rays, and a neurological examination resulted in a diagnosis of minimal osteoarthritis and a neurotic inadequate personality with passive features. A Dr. Alex Arieff was unable to produce any records of electroshock treatments for mental or emotional disturbances in the early 1940's.

Dr. Ira Liebson, a staff psychiatrist, reviewed the file for the Bureau of Disability Insurance, but found no evidence of a major mental disorder, or severe psychiatric problem. However, an actual physical evaluation of the plaintiff by psychiatrist, Dr. Sanford Finkel in 1974 resulted in a diagnosis that the "plaintiff was chronically depressed with a passive-dependent, hysterical structure who might possibly have the potential to benefit from psychotherapy but who would find it most difficult to give up her lifelong symptoms." He also felt that the plaintiff would not have been able to work either early in life or presently because of her disability. The final medical report of Dr. Beyemt in 1973 diagnosed either a basic ganglion disease or a senile chorea.

In addition, the plaintiff's brother, Charles Lieberman, testified that his sister had had a nervous condition since age 10. Affidavits from Rose Kahn and Muriel Saharack indicate that they had known Miss Liberman since 1929 and 1930 and had observed her nervousness through that whole span of time. Plaintiff's own testimony is replete with illustrations of difficulties in coping with the normal activities of daily life.

There is no dispute in this case that the plaintiff is presently disabled; indeed, the administrative law judge specifically found that at the time of her hearing on November 9, 1976, Miss Lieberman has established her current disability. The sole issue, therefore, is the standard to be used in determining entitlement to child's insurance benefits in relation to the requirement that an applicant be "under a disability . . . which began before he attained the age of 22." [42 U.S.C. § 402(d)(10(B)].

Plaintiff argues that this section is to be interpreted as meaning that the applicant need not be disabled before attaining age 22, but only be disabled at the time of the filing of the application as a result of a condition which began before age 22. In support of this contention she cites Lohtak v. Richardson, DC, Dist. of Colo., 1971, CCH UNEMPLOYMENT INSURANCE REPORTS [Federal Transfer Binder, Sept. 1970-Jan. 1972], ¶ 16,309, (Colo., 1971) and Giza v. Weinberger, DC, Dist. of Md., 1973, CCH UNEMPLOYMENT INSURANCE REPORTS [Federal Transfer Binder, April 1973-Jan. 1974], ¶ 17,422. The Secretary responds, however, that an individual must establish that a disability actually existed before the age of 22 and that it must have continued until the time of his application for benefits. He finds authority for this position in Futernick v. Richardson, 484 F.2d 647 (6th Cir., 1973) and Reyes v. Secretary of Health, Education, and Welfare, 476 F.2d 910 (D.C. Cir., 1973). We agree with this conclusion of the Secretary.

Although Lohtak does clearly hold that evidence of a condition which began before age 22 will suffice, that case is not in line with the interpretation of the majority of courts which have considered the issue. Our reading of Giza differs from that of the plaintiff; the Court in that instance did not hold that entitlement to benefits can be based on a condition which began before age 18, but only that claimant's burden of proving a child disability may be lessened. "Where the medical evidence is silent or does not pre-date age 18, the testimony of lay witnesses has been permitted to extrapolate the disability back to a prior age." Giza v. Weinberger, DC, Dist. of Md., 1973, CCH UNEMPLOYMENT INSURANCE REPORTS [Federal Transfer Binder, April 1973-Jan. 1974], ¶ 17,422, p. 2499-143.[2] However, in Giza medical evidence pinpointed the onset of the disabling disease as occurring at age 19, and benefits were denied on the basis of this finding.

The court in Reyes observed that the legislative history of the Social Security Act precluded issuance of benefits unless children were permanently disabled prior to the statutory age and had remained disabled continuously throughout the years. That court noted the following pertinent language from the Senate Finance Committee Report which was part of the legislative history.

The bill includes provision for payment of disabled child's benefits to the dependent disabled child of a deceased or retired insured worker if the child is permanently and totally disabled and has been so disabled since before he reached age 18. * * *

Your committee's bill would provide benefits for a child who has been totally and permanently disabled before attaining age 18, if the child is totally and permanently disabled and dependent upon the parent at the time the parent dies or becomes entitled to retirement benefits. To be considered disabled the child would have to be unable to engage in any substantial gainful activity by reason of a severe mental or physical impairment that is expected to continue indefinitely. Reyes v. Secretary of Health, Education & Welfare, 476 F.2d 910, 914 n. 5 (D.C. Cir. 1973), citing S. Rep. No. 2133, 84th Cong., 2d Sess. 2. 5-6 (1956), U.S. Code Cong. & Admin. News 1956, p. 3877 (emphasis added).

We must concur that the standard of entitlement requires proof of a permanent disability which was in existence before the claimant reached age 22. This was the standard applied by the administrative law judge during the de novo hearing, and he found that plaintiff's own testimony, the averments of her brother and friends, and the inferential diagnosis of the evaluating psychiatrist did not establish the disability in the absence of any medical testimony regarding treatment or medical records covering the years prior to 1947. There is no doubt that the administrative law judge did give evidentiary weight to the subjective testimony of the claimant and those who had known her over a period of years, as is proper. Thorne v. Weinberger, 520 F.2d 580 (4th Cir., 1976); Wyatt v. Weinberger, 519 F.2d 1285 (4th Cir., 1975). He also correctly found that the inferential opinions of Drs. Beyemt and Finkel carried significant weight; however, there is no indication in the record that they were treating physicians over a period of years and that their evaluations should thus be deemed definitive. Allen v. Weinberger, 552 F.2d 781 (7th Cir. 1977). The administrative law judge also was cognizant of the fact that the claimant had attended school regularly until age 23 or 24.

It is the responsibility of the Secretary to weigh all the factual evidence and resolve conflicts. Richardson v. Perales, 402 U.S. 389 (1971); Allen v. Weinberger, 552 F.2d 781 (7th Cir., 1977). On the basis of the record before us, we cannot conclude that improper standards were applied or that there was no relevant evidence adequate to support the finding of the Secretary. Richardson v. Perales, 402 U.S. 389 (1971). Therefore, defendant's motion for summary judgment is granted, and plaintiff's motion for summary judgment is denied.

[1] Section 202(d) provides:

(d)(1) Every child . . . of an individual entitled to old- age . . .insurance benefits . . . if such child --

(A) has filed application for child's insurance benefits.
(B) at the time such application was filed was unmarried and . . . (ii) is under a disability (as defined in Section 423(d) of this title) which began before he attained the age of 22, and
(C) was dependent upon such individual --
(i) if such individual is living, at the time such application was filed.

* * * * *

shall be entitled to a child's insurance benefit for each month, beginning with the first month after August 1950 in which such child becomes so entitled to such insurance benefits and ending with the month preceding. . . .

* * * * *

(G) if such child was under a disability (as so defined) at the time he attained the age of 18, the third month following the month in which he ceases to be under such disability. . . .

[2] The age was changed from 18 to 22 by the 1972 Amendments to the Social Security Act.

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