Ethel S. Harris, Plaintiff-appellant, v. Elliot L. Richardson, Secretary of Health, Education Andwelfare, Defendant-appellee, 468 F.2d 1260 (9th Cir. 1972)

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U.S. Court of Appeals for the Ninth Circuit - 468 F.2d 1260 (9th Cir. 1972) Oct. 10, 1972

Arthur L. Johnson, San Jose, Cal., for plaintiff-appellant.

James L. Browning, Jr., U. S. Atty., Peter V. Shackter, Asst. U. S. Atty., San Francisco, Cal., for defendant-appellee.

Before MERRILL, CHOY and WALLACE, Circuit Judges.


Appellant is appealing the decision of the District Court to grant the appellee summary judgment in the appellant's motion for review of a denial of disability benefits under 42 U.S.C. §§ 416 and 423.

Appellant contends that the 1967 amendments to the Social Security Act ought not to be applied to her since her disability arose before those amendments were enacted and thus served to divest her of a vested right in property without due process. These rights are not vested and do not become vested until one has actually established his eligibility. Flemming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960); King v. Finch, 428 F.2d 709 (5th Cir. 1970). Appellant having had no rights lost by those amendments has no right to challenge them.

There was substantial evidence to support the Secretary's finding that appellant was not disabled prior to December 31, 1972, the last date on which she met the necessary earnings requirements. This being the only question open to us on review (42 U.S.C. § 405 (g), and Harmon v. Finch, 460 F.2d 1229 (9th Cir. 1972)), we affirm the decision of the District Court.