20 CFR 404.116
TOWNSLEY v. WEINBERGER, (1976-77 Transfer Binder) Unempl. Ins Rep.¶ 14866 (N.D.Ca., 6/4/76)
SWEIGERT, District Judge:
This is an action brought in pro per for review of the final determination of the Secretary of Health, Education, and Welfare, that plaintiff is not entitled to disability benefits, brought under 42 U.S.C. § 405(g) of the Social Security Act. Plaintiff alleges that defendant's decision denying eligibility for disability benefits, is based on unconstitutional statutes and regulations and is not supported by the evidence; she seeks reversal or modification of the Secretary's decision so as to grant plaintiff such benefits.
The case is now before the court on plaintiff's and defendant's motions for summary judgement based on the administrative record on file herein.
In an action of this kind, the court's jurisdiction under 42 U.S.C. § 405(g) is limited to determining whether or not the Secretary of HEW's findings are supported by substantial evidence and are in accord with applicable law.
Plaintiff's evidentiary showing is to the effect that she arrived in this country from England in July, 1949, that she worked as a registered nurse from the time of her arrival virtually continuously at various hospitals until she was totally disabled by hypertension at age 29 in December, 1953; that she has been unable to engage in any gainful employment since the onset of her claimed disability.
Plaintiff first contends that the social security regulations concerning insured status for disability benefits are unconstitutional in that they discriminate unfairly against immigrants who are disabled shortly after their arrival in this country.
These regulations require that applicants have had earnings in covered employment of more than $50 in 20 of the 40 quarters preceding the onset of disability, or alternatively, if the applicant became disabled before age 31, that she have had earnings of $50 or more in covered employment in at least one-half of the quarters between the quarter following her 21st birthday and the quarter in which her disability began in order to have insured status and be eligible for disability benefits.
Plaintiff contends that in her case it would have been impossible for her to have met these requirements because she had not been in the country for the minimum number of quarters at the time she became disabled.
The test for determining the constitutionality of social security statutes and regulations has been set forth by the Supreme Court in Flemming v. Nestor, 363 U.S. 603 (1960), as follows:
The rationale for the statutes and regulations in question has been stated in Lerner v. Richardson, 393 F.Supp. 1387 (E.D.Pa. 1975) as follows:
We conclude that the statutes and regulations in question do not involve a patently arbitrary classification utterly lacking in rational justification within the meaning of Flemming v. Nestor, supra, and that they are not unconstitutional.
Since the statutes and regulation are valid, the only remaining question i whether defendant's findings that plaintiff had earnings of $50 or more in covered employment in only nine quarters is supported by substantial evidence.
Plaintiff contends that the records of the Social Security Administration, showing that she had only nine quarters of covered employment prior to onset, are incorrect and that she should be credited with the 17 quarters that would make her eligible under the alternative method of computation set forth in the regulations.
20 C.F.R. 404.804 provides in part that "The absence of an entry as to an individual's earning with respect to any period shall be evidence that the individual with respect to any period had no earnings in such period;" 20 C.F.R. 404.804(a) provides that, after expiration of a time limitation of three years, three months, and 15 days after the close of a calendar year, during which an individual may request revision of her earnings record, "the Administration's records . . . of the amount of earnings of an individual during any period in such year shall be conclusive." 20 C.F.R. 404.804(b) provides that "The absence of an entry in the Administrations's records as to the wages alleged to have been paid by an employer shall be presumptive evidence that no such wages were paid to such individual in such period."
These are reasonable regulations and, since there is no evidentiary showing that the records are incorrect,they are accepted as correct and as supported by substantial evidence.
There being no genuine dispute as to any material issue of fact, defendant's motion for summary judgment should be, and hereby is, granted, and the decision of the Secretary affirmed.
 Although both Parties have moved for summary judgment, so much motion is required under 42 U.S.C. § 405(g), which states, in part, that "The court shall have the power to enter, upon the pleadings and transcript of record, a judgment affirming, modifying or reversing the decision of the Secretary, with or without remanding the cause for a rehearing.
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