Carl V. Henry applied for a period of social security disability and disability insurance benefits on December 12, 1963, alleging disability beginning December 3, 1953 due to tuberculosis.

Mr. Henry’s disability insured status expired on June 30, 1954. It was undisputed that he was disabled from tuberculosis at the time his disability insured status expired.

However, Mr. Henry underwent a lung resection surgery on July 11, 1954. He continued to receive drug therapy until June 1957.

Following Mr. Henry’s lung resection his condition was described as “minimal pulmonary tuberculosis, apparently arrested.” Following his resection he was x-rayed 3-5 times pear year until February 3 1958. Beginning February 1955 these x-rays showed that Mr. Henry’s tuberculosis was arrested. It remained in this arrested condition throughout all periods of time relevant to this case.

Mr. Henry later developed intercostal neuritis and asthmatic bronchitis and mild pulmonary emphysema, which were likely secondary to his lung problems resulting from his tuberculosis and lung resection. He failed to follow his doctor’s advice to reduce or eliminate smoking cigarettes.

His bronchitis and neuritis were amenable to medical treatment His emphysema, which was considered mild, was not in and of itself disabling.

Mr. Henry’s claim was denied. The hearing examiner found that he was not continuously disabled from the time of his date last insured until at least twelve months prior to his application date. He appealed.

The Federal Court affirmed the hearing decision.

During the course of the proceedings Mr. Henry did succeed in getting the case remanded to consider new evidence regarding the worsening of his emphysema. However, the Appeals Council held that, even if the emphysema were disabling, it was immaterial because such disability occurred after his date last insured.

The bronchitis and neuritis were not considered disabling because, as stated in the Code of Federal Regulations “[a]n individual will be deemed not under a disability if, with reasonable effort and safety to himself, the impairment can be diminished to the extent that the individual will not be prevented by the impairment from engaging in any substantial gainful activity.” Section 404.1502(g), Social Security Regulations No. 4 (20 C.F.R. 404.1502(g)). See also Purdham v. Celebrezze, 349 F.2d 828 (C.A. 4).

Because Mr. Henry was not continuously disabled throughout the relevant period (from his date last insured through twelve months prior to his application date), he was not entitled to a period of social security disability and disability insurance benefits. The hearing decision was affirmed.

See Henry v. Gardner, 381 F.2d 191 (6th Cir. 1967).

See also Social Security Ruling (SSR) 68-64c.

One lesson to be learned from this case, in my opinion, is that one should not wait to apply for disability benefits for too long a period of time after the initial onset of the disability. For one thing, benefits can only be paid retroactively no more than twelve month prior to the application date. Another reason is that it is difficult to prove a remote disability. Yet another reason is that one must prove a continuous disability through at least twelve month prior to the application date.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.