20 CFR 410.214, 410.380, and 410.395(h)

SSR 76-38c

Emelett v. Weinberger, U.S.D.C., M.D.Pa., No. 74-801 (2/27/76)

At the time of his death due to pneumoconiosis, a miner was survived by a parent who was living in a household with him for one year preceding his death. He was not survived by a widow or children. Although the parent received most of her support from the miner, she was not totally dependent upon him. Held, the surviving parent is not entitled to benefits because she must have been wholly dependent on the miner for her support in accordance with section 412(a)(5) of the Federal Coal Mine Health and Safety Act of 1969, as amended.

NEALON, U.S. District Judge:

The record in this action has been reviewed, pursuant to 42 U.S.C.A. § 405(g), to determine whether there is substantial evidence to support the Secretary's decision denying plaintiff's claim as the dependent mother 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.A. § 901, et seq.

The miner, Bernard Emelett, died in 1968, at age 55. (TR. 20, 51). The Secretary does not dispute that plaintiff was the mother of the insured, that she was living in a household with him for one year immediately preceding his death, that the miner was not survived by a widow or children, and that his death was due to pneumoconiosis (Def. Br., p. 7). The only issue is whether the plaintiff was totally dependent on the miner for her support during the one year period preceding his death.

The record indicates that in the 12 month period prior to the miner's death, the plaintiff and the deceased miner lived in a home owned by plaintiff; that the miner had Social Security, State Workmen's Compensation and bank account interest income totalling $2,550.60 during that period; that plaintiff had Social Security and bank account interest income of $708.00 during that same period; and that these funds, totalling $3,258.60, were pooled for their mutual support. (TR. 87).

Plaintiff testified that the miner always turned over his entire pay, and later his entire benefits, to plaintiff and she would disburse these funds for their support. (TR. 21-22, 31-32). Plaintiff does not dispute that she used her own income for their mutual support. Indeed, the record indicates that plaintiff owned the house in which she and the miner resided during the 12 months prior to the miner's death (TR. 27, 81); that of the income she and her son received during that period, none was saved (TR. 81-82); and in her application, plaintiff admitted that she was "receiving over one half of my support from him but not all." (TR. 39). Instead, plaintiff argues that the "black lung" act should be liberally construed in favor of including under its coverage someone like plaintiff whose own income would be insufficient to maintain her. Plaintiff argues that the Secretary's interpretation of the Act, i.e., requiring a showing of "total dependency," would preclude one from receiving benefits where one received even an insignificant contribution of support from a person other than the miner. Plaintiff admits that she has no authority to support her contentions. (Pl. Br., pp. 4-5).

The provision permitting parents to qualify for benefits was added to the Act by the 1972 amendments. The Senate bill leading to the amendments permitted dependent parents, if there was no surviving widow or child, or dependent brothers and sisters, if there was no surviving dependent parent, to succeed to a miner's benefits provided that the parent, brothers or sisters, received at least one half of their support from the miner for at least a one year period prior to his death. The House bill contained no eligibility provisions for such persons. The House receded "with an amendment that provided that in order to qualify for benefits, parents, brothers and sisters must have been wholly dependent on the miner, and must have resided in the miner's household for one year prior to the miner's death." (Emphasis supplied). Conference Report 92-1048, U.S.Code Cong. & Adm. News, 92nd Cong., 2nd Session, 1972, p. 2338. The amendment, as enacted, defined "dependency" as meaning a total dependency of the parent, brother or sister. 30 U.S.C.A. § 922(a)(5)(2). The regulations follow this mandate. Social Security Regulations §§ 410.214, 410.380 and 410.395(h), 20 CFR. Since the record establishes that plaintiff was not "wholly" or "totally" dependent on the miner during the period in question, the Secretary's decision is supported by substantial evidence.

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