Peal L. Seals v. John W. Gardner, Secretary of Health, Education, and Welfare , 356 F.2d 508 ( 1966 )

356 F.2d 508

Peal L. SEALS, Appellant,
v.
John W. GARDNER, Secretary of Health, Education, and
Welfare, Appellee.

No. 22586.

United States Court of Appeals Fifth Circuit.

Feb. 11, 1966.

Lampton O. Williams, Poplarville, Miss., for appellant.

Morton Hollander, Martin Jacobs, Attys., Dept. of Justice, Washington, D.C., John W. Douglas, Asst. Atty. Gen., Robert E. Hauberg, U.S. Atty., Alan S. Rosenthal, Attorneys, Department of Justice, Washington, D.C., for appellee.

Before GEWIN and COLEMAN, Circuit Judges, and McRAE, District Judge.

PER CURIAM:

1

This was an action to review a decision of the Secretary of Health, Education, and Welfare denying appellant disability benefits under the Social Security Act. The Secretary found that on or before September 30, 1957, appellant was not unable to engage in substantial gainful activity. The cut-off date on the earnings requirement of the Act was, as stated, September 30, 1957. Because there is no evidence of its appearance prior to May 31, 1958, an element of back trouble involved in this case could not have been considered by the Secretary.

2

The other claimed disability stemmed from an accident which occurred on December 8, 1955, as result of which it became necessary surgically to remove certain fatty tumors, or lipomas, from claimant's leg. That this disability was not such as to preclude substantial gainful activity on the part of appellant is amply supported by substantial evidence. The District Court, therefore, correctly affirmed the denial of disability benefits to the claimant. Celebrezze v. O'Brient, (5 Cir. 1963), 323 F.2d 989.

3

Affirmed.