368 F2d 319 Ramirez v. W Gardner

368 F.2d 319

Salvador RAMIREZ, Appellant,
John W. GARDNER, Secretary of Health, Education and Welfare, Appellee.

No. 23324.

United States Court of Appeals Fifth Circuit.

Oct. 27, 1966.

Ernest T. Reich, Houston, Tex., for appellant.

James R. Gough, Asst. U.S. Atty., Woodrow Seals, U.S. Atty., William B. Butler, Robert C. Maley, Jr., Thomas L. Morrill, Asst. U.S. Attys., Houston, Tex., for appellee.

Before HUTCHESON, JONES and DYER, Circuit Judges.


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This is an appeal from a decision of the District Court affirming a determination by the Secretary of Health. Education and Welfare that appellant is not entitled to disability benefits under the Social Security Act. 42 U.S.C. Secs. 405(g), 416(i)(1)(A) (1964). After a careful review of the record, we agree that the Hearing Examiner applied correct legal standards and that his findings are supported by substantial evidence. However, the judgment of the District Court must be vacated due to a significant amendment in 1965 to the pertinent disability provision. Prior to 1965, 'disability' was defined as the inability to engage in any substantial gainful activity by reason of an impairment which could be expected 'to be of long-continued and indefinite duration * * *.' 42 U.S.C. Sec. 416(i)(1)(A) (1964). The amendment alters the required time period to one which 'has lasted or can be expected to last for a continuous period of not less than 12 months.' 42 U.S.C.A. Sec. 416(i)(1)(A) (Supp.1965). The Secretary agrees that appellant's condition presently may be incapacitating and that appellant may be able to recover under the 1965 amendments. Thus the judgment of the District Court is vacated with directions to the District Court to vacate the order of the Secretary and to direct the Secretary to reconsider the matter in light of the 1965 amendments.