20 CFR 410.380 and 410.395

SSR 77-7c

KOSHINSKI v. WEINBERGER, USDC, M.D.Pa., Civ. No. 74-980 (5/6/76)

The claimant, the sister of a lifelong coal miner, contended she was totally dependent upon her brother until he became unable to work in 1947 as a result of a lung impairment. From that time until his death in 1952, she was his sole source of income and paid all expenses and support for both her brother and herself. Held, the claimant is not entitled to benefits because she was not totally dependent upon the miner for support in the 1-year period immediately prior to his death, as required by section 412(a)(5)(2) of the Federal Coal Mine Health and Safety Act of 1969, as amended and in Social Security Administration Regulations No. 10, section 410.380.

NEALON, District Judge:

Plaintiff initiated this action under 42 U.S.C. § 405(b) to review a decision of the Secretary of Health, Education and Welfare ("Secretary") denying her claim as a dependent sister of a miner for "Black Lung" benefits, pursuant to the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. § 901 et seq. ("Act").

On September 9, 1974, the Secretary's Appeals Council affirmed a decision of an administrative law judge, dated July 9, 1974, which denied benefits to Plaintiff. Plaintiff filed a complaint with this court on November 7, 1974, and subsequent to filing an answer thereto Defendant filed a motion for summary judgment on July 3, 1975, which averred that the decision of the administrative law judge was based upon substantial evidence.

Plaintiff is the younger sister of a deceased coal miner, Felix Koshinski, who died on May 25, 1952, as a result of a pulmonary disease caused by his lifelong employment in the nation's coal mines. The record reflects that the decedent was totally disabled as a result of his lung impairment from 1947, when he was forced to stop all employment, until the time of his death. As a result, the sole question involved herein is whether Plaintiff qualifies as a dependent of the deceased coal miner within the provisions of the Act.

Plaintiff testified that she lived with her deceased brother for her entire life in a home they owned jointly since 1920. Plaintiff's mother also lived with her and her deceased brother until 1943, when she died. Plaintiff testified that she first worked in 1941 and that she worked consistently after 1947 when the deceased coal miner's health required him to quit all employment; that subsequent to 1947 her deceased brother received no compensation from any source whatsoever; that from 1947 until her brother's death in 1952 she alone sustained the financial requirements of her and the decedent's support; that she estimated her income in the year prior to the decedent's death at approximately $3,000; and that from this money she paid all expenses of support for both her and her brother, which included the expenses of food, clothing, heat and other regular household expenses.

Plaintiff, as an alleged dependent sister of the deceased miner, is required under Social Security Regulation § 410.380, 20 C.F.R., to show that she was totally dependent upon her brother during the year preceding his death. § 410.380 defines dependency as follows:

"An individual who is the miner's . . . sister will be deemed to have been dependent on the miner if, during the 1-year period immediately prior to such miner's death:
(a) such individual and the miner were living in the same household; and
(b) such individual was totally dependent on the miner for support . . ."

"Support" is defined by Regulation § 410.395 to include "food, shelter, clothing, ordinary medical expenses and other ordinary and customary items for the maintenance of the person supported", and the term "totally dependent" is stated at subsection (h) of § 410.395 to mean that the miner "made regular contributions to the support of his . . . sister . . . and that the amount of such contributions at least equaled the total cost of such individual's support."

Based upon this record and the legal criteria set forth above the administrative law judge found that Plaintiff was not entitled to benefits under the Act because she was not totally dependent on the miner for support in the one year period immediately prior to the miner's death.

The function of this court on review is not to try this matter de novo, but rather is to determine whether the Secretary's decision is in accordance with the law and supported by substantial evidence. Ginsburg v. Richardson, 436 F.2d 1146 (3d Cir. 1971), cert. denied, 402 U.S. 976 (1971), reh. denied, 403 U.S. 912 (1971). It is clear from Plaintiff's own testimony, which related that she wholly supported the deceased miner in the year prior to his death, that the decision of the administrative law judge is based upon substantial evidence and must be affirmed by the court.

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