20 CFR 410.380 and 410.395

SSR 77-19c

Backiel v. Sec'y, Health, Education and Welfare, USDC, M.D.PA., Civ. No. 74-837 (6/23/76)

The plaintiff, an applicant for Black Lung Survivor's Benefits, alleged she was dependent upon the miner for her support in the year prior to his death. During that period, she owned the home in which they lived and had earnings of $1,700. The miner had income of $2,250, which he turned over to his sister for household expenses. Held, the plaintiff does not qualify for benefits since she was not totally dependent upon the miner for her support in accordance with Regulations No. 10, § 410.380 of the Social Security Administration.

MUIR, District Judge:

Mary Backiel filed this action under 42 U.S.C. § 405(g) following the decision of an Administrative Law Judge acting for the Secretary of the United States Department of Health, Education, and Welfare, which denied her claim for "Black Lung" benefits to which she claims entitlement as the dependent sister of a miner pursuant to the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §§ 901 et seq.

On August 4, 1975, the Secretary filed a motion for summary judgment accompanied by a brief. On August 6, 1975, the matter was referred to United States Magistrate Durkin to consider the Secretary's motion and to make his recommendation to the Court. On August 22, 1975, Bakiel filed a brief in response to the Secretary's motion. On April 7, 1976, the case was reassigned to United States Magistrate Havas who filed his report on May 28, 1976.

John Backiel was, at the time of his death on May 25, 1971, receiving Black Lung benefits. The only issue in this case is whether his sister, Mary, was "dependent" upon him for her support. Social Security Regulations 20 C.F.R. § 410.380 discusses dependency:

"An individual who is the miner's . . . sister will be deemed to have been dependent on the miner if, during the one-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 . . ."

Under 20 C.F.R. § 410.395, "support" includes "food, shelter, clothing, ordinary medical expenses, and other ordinary and customary items for the maintenance of the person supported", while the term "totally dependent" means that the miner "made regular contributions to the support of his . . . sister . . . and . . . the amount of such contributions at least equalled the total cost of such individual's support."

John and Mary Backiel lived in one half of a duplex home owned solely by Mary who inherited it from her mother. The other half of the house was let for $75.00 per month. In the year preceding John's death, Mary earned $1700.00 as a part-time employee in a dress factory. Two other brothers, Raymond and Joe, lived in the same house but apparently made no contribution to the support of either Mary or John. John received approximately $1,050 in Black Lung benefits in the year prior to his death as well as $1200.00 in Pennsylvania State Occupational Disease Benefits. John turned all of this money over to Mary who used it to support the members of the household.

There is no question that Mary was not "totally dependent" o John's benefits for her support. She clearly contributed a large sum to the support of the family in the form of wages, rental income, and fair rental value of the half-house which she owned but provided rent-free to her three brothers. Backiel's counsel (who inexplicably argues as if only three individuals were living in the Backiel household) maintains that Mary was dependent on John because her pro rata portion of the funds used to support the household was equal to John's contribution. Thus, he argues, that since Mary's support cost approximately $2,000 and John contributed roughly that amount, Mary was totally dependent on John. This argument is specious. It completely ignores the fact that Mary contributed a like or greater amount to the household support fund as well as the fact that a portion of John's contribution went to support the other two members of the household. Although Mary's generosity vis-a-vis her brothers is commendable, her situation simply does not qualify her as a totally dependent sister of a deceased miner. Consequently, the Secretary's motion for summary judgment will be granted.

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