Armando G. GALLI, Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education, and Welfare, Appellee, 339 F.2d 924

HAMLIN, Circuit Judge. On April 4, 1961, Armando G.. Galli, the appellant herein, filed an application to establish a period of disability, and for disability insurance benefits with the Department of Health, Education, and Welfare, alleging that he had been unable to work since November 17, 1960, because of back trouble, dizziness, bronchitis and an ulcer. Following a denial' of his claim by the Social Security Administration, a hearing was held on June 22, 1962.

The hearing examiner found that the appellant had not sustained his-burden of showing that he was “disabled” within the meaning of the Social' Security Act and that he was not entitled' to a period of disability or to disability-benefits. On March 18, 1963, the appellant’s request for review of the hearing-examiner’s decision was denied by the-Appeals Council of the Social Security* Administration and the hearing examiner’s decision became the final administrative decision on appellant’s claim.

On April 22,1963, appellant instituted an action in the United States District Court for the Northern District of California, Southern Division, for judicial review of the final decision denying appellant’s application for a period of disability and for disability insurance benefits under the Social Security Act. The district court had jurisdiction under

section 205 (

g) of the Social Security Act, 42 U.S.C. § 405(g). On March 30, 1964, the district court entered an order granting ap-pellee’s motion for

summary judgment, affirming the decision of the Secretary of Health, Education, and Welfare. From this decision appellant appeals, invoking the jurisdiction of the court under 28 U.S.C. § 1291. The sole issue on appeal is whether the findings of the Secretary of Health, Education, and Welfare based on the findings of the hearing examiner are supported by substantial evidence. See McMullen v. Celebrezze, 335 F.2d 811 (9th Cir. 1964) ; Graham v. Ribicoff, 295 F.2d 391 (9th Cir. 1961).

Section 223(a) (1) of the Social Security Act, 42 U.S.C. § 423(a) (1) provides : “Every individual who— * * * (

D) is under a disability (as defined in subsection (c) (2) of this section) at the time such application is filed, shall be entitled to a disability insurance benefit.”

Section 223(c) (2) provides:. “

(2) The term ‘disability’ means inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration. An individual shall not be considered to be under a disability unless he furnishes such proof of the existence thereof as may be required.” The appellant is not eligible for disability benefits under the Act unless it is established that he was under a “disability” during the effective period of his application.

The application is effective for a three-month period following the date of filing. See sections 216(i) (2) and 223(c) (3), 42 U.S.C. §§ 416(i) (2), 423(c) (3). After extensively reviewing and analyzing the record the hearing examiner found that none of the appellant’s claimed impairments, singly or in combination, were shown to have reached, such a level of severity as to have prevented the appellant from engaging in. any substantial gainful activity. Appellant contends to the contrary, citing medical testimony favorable to him.

However, the most that can be said is that, the medical reports are conflicting, and the trier of fact has resolved this conflict against the appellant. The findings of the hearing examiner are supported by substantial evidence. Therefore, appellant’s contention has no merit. Judgment affirmed. . See also

section 216(i) (1), 42 U.S.C. § 416(i) (1), the so-called “disability freeze” provision defining “disability” in language identical to that set forth in

section 223(c) (2) above,