SSR 66-15c: SECTION 202(h). -- PARENT'S INSURANCE BENEFITS -- SUPPORT REQUIREMENT

20 CFR 404.350 and 404.720

SSR 66-15c

JONES v. CELEBREZZE, U.S.D.C., E.D. Ky., Civ. No. 493 (7/30/65) (CCH U.I.R. Fed. Vol. 1A, Par. 14,200)

Where the worker had been contributing $20 a month toward the support of his mother, the claimant, during the year preceding his death; where the claimant's other income consisted of wife's insurance benefits totaling $516.40 for the year, plus $25 from the sale of potatoes; and where the total income to the claimant's household was $2,566.20, which was pooled for the support of all seven members of the claimant's household, held, the Secretary's finding that the claimant had not been receiving at least one-half of her support from the worker at the time of his death is supported by substantial evidence.

H. CHURCH FORD, District Judge:

By this action, the plaintiff, Judy Jones, invokes the jurisdiction of the Court under and pursuant to § 205(g) of the Social Security Act, 42 U.S.C.A., § 405(g), seeking that the Court set aside the order of the Appeals Council of June 9, 1964, by which the decision of Hearing Examiner * * * of January 22, 1964, was reversed and plaintiff's claim to parental insurance under § 202(h) of the Act, 42 US.C.A., § 402(h) was denied.

The issues for determination are (1) Whether, at the time of and during the year preceding the death of her natural son, Ernest Jones, on March 17, 1962, plaintiff was receiving at least one-half of her support from him; * * *

Section 202(h) of the Act, 42 U.S.C.A., § 402(h), as amended, provides in relevant part as follows:

"(h)(1) Every parent (as defined in this subsection of an individual who died a fully insured individual, if such parent:

"(A) has attained age 62.

"(B)(i) was receiving at least one-half of his support from such individual at the time of such individual's death . . . . . . . . . . . . . . . . shall be entitled to a parent's insurance benefit. . . ."

It is admitted by the parties that plaintiff's son, Ernest Jones, who died on March 27, 1962, was a fully insured individual under the Social Security Act. Plaintiff filed her application for parent's insurance benefits on October 16, 1962, asserting that at the time of and during the year preceding his death she was receiving from her son at least one-half of her support.

Initially, plaintiff's claim was disallowed on the basis that she was not receiving at least one-half of her support from the wage earner at the time of his death. Plaintiff then requested a hearing before the Hearing Examiner on the question of her entitlement to the social security benefits. Upon the hearing by Hearing Examiner * * *, the Examiner entered a decision holding that plaintiff was entitled to parent's insurance benefits under § 202(h)(1) of the Social Security Act, as amended, 42 U.S.C.A., § 402(h)(1), as amended.

Upon its own motion, the Appeals Council reviewed and reversed the Hearing Examiner's decision on June 9, 1964, and the decision of the Appeals Council is the final decision of the defendant, Secretary of Health, Education and Welfare, to reverse which the plaintiff is maintaining this action.

In reversing the decision of the Hearing Examiner, the Appeals Council said:

"The record indicates that during the year prior to the death of the wage earner on March 17, 1962, he was married and was employed in Chicago, Illinois. His gross earnings from employment during those twelve months totalled $2,047.75. Of this amount, the claimant has consistently stated that the wage earner contributed approximately $20 a month or a total of $240 during the year in question, which was used by the claimant to help pay the various household expenses.

"The claimant received wife's insurance benefits, based on her husband's earnings record, in the total amount of $516.40 in the year prior to her son's death, plus income of $25 from sale of potatoes. Her own income during the year therefore totalled $541.40. At the time of the wage earner's death, the claimant's social security benefit as a wife amounted to $47 a month. "It further appears from the record that Alex Jones, husband of the claimant, and the claimant's two children, Geneva Jones and J.B. Jones, also received social security benefits on the earnings record of the claimant's husband, which amounted to a total of $1,784,80 during the one-year period material herein. The contributions, from all sources, to the support of the claimant and the members of her household during the year before the wage earner's death were as follows:

"It is therefore clear that the wage earner's total contributions constituted less than 10% of the income available for the support of the household, and were, in fact, considerably less than the claimant's own contributions which accounted for more than 20% of the total income available for support during the period involved.

"The claimant filed a parent's certificate of support on October 16, 1962, in which she indicated that the members of her household in the year before her son died were her husband, herself, and their two children. At the hearing, the claimant testified that her son-in-law and his two children also lived with them during the time material herein, but that none of these individuals made any contributions to the support of the household.

"In his decision, the hearing examiner found that the total family income was used to support all seven members of the household and, dividing the income of $2,566.20 in seven parts, the hearing examiner further found that the cost of support of each household member during the year before the wage earner's death amounted to $366.60. It appears that the hearing examiner then assumed that the wage earner's contribution of $240 was used entirely for the claimant's support and, therefore, held that the wage earner contributed more than one-half of her support during the year prior to his death.

"In the opinion of the Appeals Council, the finding of the hearing examiner that the wage earner was contributing more than one-half of the claimant's support is highly unrealistic. His finding is not supported by the evidence, inasmuch as the claimant's own income was more than sufficient to meet the cost of her own support and, moreover, was substantially in excess of the total contribution by the wage earner. Furthermore, the parent's certificate of support filed by the claimant on October 16, 1962, indicates that the wage earner's contributions were used to help defray household expenses, and consequently were not used exclusively for her own support * * *

"Accordingly, if it is considered, as the hearing examiner did, that all income to the household was 'pooled' and used equally for the support of all members of the household, only one-seventh of the wage earner's total contribution, or approximately $34, could be considered as having been contributed to the claimant's support during the year in question. Since the total cost of her own support, under this approach, amounted to $366.60, the wage earner's contribution was considerably less than one-half thereof, even if it is assumed for purposes of this calculation that the claimant's own income should not be considered as having met her entire cost of support. If the 'pooled fund' approach had been found not to be applicable, the ultimate result would be the same since the $240 allegedly contributed by the wage earner was substantially less than the claimant's own income of $541.40, and therefore could not on any reasonable basis be found to have amounted to at least one-half of the claimant's support at the time here pertinent. The wage earner's contributions were at most a small fraction of the total family income, and regardless of the method employed to determine support, constituted much less than one-half of the claimant's support.

"While the record contains a statement by the claimant's son-in-law, dated April 9, 1963, to the effect that the wage earner contributed an average of $65 a month to the claimant's support, this statement is completely inconsistent with the other evidence of record, including the oral testimony at the hearing. It is also highly unlikely that the wage earner could have made contributions in this amount in view of his earnings, and the fact that he had a household of his own to support. It is noted that the hearing examiner did not rely upon the son-in-law's statement and accepted the $20 a month figure as a basis for his finding. In the opinion of the Appeals Council, this statement is entitled to little or no weight and was properly not relied upon by the hearing examiner.

"The Appeals Council, therefore, finds that the claimant was not receiving at least one-half of her support from the wage earner at the time of his death and does not meet this requirement for entitlement to parent's insurance benefits.

* * * * * * *

"The decision of the hearing examiner is reversed." * * *.

I am of the opinion that the above decision of the Appeals Council, which became the final decision of the defendant, Secretary of Health, Education and Welfare, is supported by substantial evidence and is conclusive under the provisions of § 305(g) of the Act, 42 U.S.C.A., § 405(g), pursuant to which the action is maintained. Domanski v. Celebrezze, 323 F.2d 882, C.A.6; Adkins v. Celebrezze, 330 F.2d 704, C.A.6; Charlie Hall v. Celebrezze, 340 F.2d 608, C.A.6; Monie King v. Celebrezze, 341 F.2d 108, C.A.6. Also see Wyatt v. Ribicoff, 211 F.Supp. 928, and Baetich v. Hobby, 212 F.2d 480, certiorari denied, 348 U.S. 831.

For the reasons indicated, the decision of the Appeals Council should be affirmed and this action should be dismissed. An order will be entered in conformity herewith.

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