20 CFR 404.350 and 404.720

SSR 68-4c

SANDLIN v. CELEBREZZE, U.S.D.C., E.D. Ky., Civ. Action No. 539 (2-3-67)

Where a claimant applying for parent's insurance benefits based on the earnings of a deceased son is required to submit evidence that she received at least one-half support from her son, pursuant to section 404.720 of the Social Security Administration regulations No. 4, and where it was shown that she had income from social security and public welfare sources for the three members of her household, lived in her own home and used her own livestock and garden produce toward her support, and where others believed her son supported her but there was no tangible evidence that he provided one-half her support, held, uncorroborated statements of the belief and opinion of others that she received support from her son do not by themselves establish that he provided the required support; therefore, since the claimant "did not show by any probative evidence" her dependency on her son, the Secretary's finding that the claimant was not receiving one-half support from her son at the time of his death is supported by substantial evidence and the claimant is not entitled to parent's insurance benefits.

[In this case, in a hearing before a hearing examiner of the Social Security Administration, the claimant presented certain evidence as to contributions she received toward her support by her deceased son. It was also established that during the 12-month period preceding her son's death she lived in her own home, that her household consisted of three members and that her son lived elsewhere, and that she had cash income of $1,452 from social security and public welfare sources, and used toward her support her own garden produce and livestock. Because the claimant failed to present tangible evidence of one-half support by her son, the hearing examiner affirmed the denial of her application for parent's insurance benefits.]

H. CHURCH FORD, District Judge:

The plaintiff, Della Sandlin, of Ricetown, Kentucky, filed her "Parents Certificate of Support" with the Social Security Administration on January 18, 1962, and again on October 24, 1962, on account of her deceased son, Harlan H. Burns, who died June 31, 1961, seeking that she be determined entitled to a parent's monthly benefit under the Social Security Act.

The plaintiff exhausted appropriate administrative procedure without success. The Appeals Council on February 2, 1965, denied review of the Hearing Examiner's decision of October 22, 1964, and thereby the decision * * * of October 22, 1964, [by the Hearing Examiner] became the final decision of the defendant, Secretary of Health, Education and Welfare.

On March 30, 1965, plaintiff filed his civil action pursuant to § 205(g) of the Social Security Act, 42 U.S.C.A., § 405(g), for Court review and reversal of the defendant's final decision.

A certified copy of the transcript of record, including the evidence upon which the findings and decision complained of are based, has been duly filed.

It appears that there is no dispute as to whether, at the time of his death, the deceased Harlan H. Burns was an insured individual under the Social Security Act.

Pursuant to plaintiff's request, a hearing was held at Hazard, Ky., on August 31, 1964, before [a] Hearing Examiner, * * * at which time plaintiff, Della Sandlin, and her daughter, Wilma Amis, were present and testified in her behalf.

On October 22, 1964, the Hearing Examiner rendered his decision and summarized the testimony of the plaintiff and other evidence presented in the case with his findings and conclusions as follows:

"Medical expenses ranging from $15 to $25 monthly, with some months as much as $50, would not permit a conclusion that the average would amount to more than $40 per month, and the Hearing Examiner so finds. It is possible that the medical expenses would equal all of the other expenses of the claimant's support, but not very probable. If the claimant were able to prove payment by her son, Harlan, of all of the medical expenses, it would not clearly prove that one-half of the claimant's support was provided by the wage-earner. The only proof that Mrs. Sandlin received any amounts for her support during the last year of Harlan's lifetime is contained in statements of belief and opinions from her children and others interested in helping the claimant establish a claim for a monthly social security benefit in excess of what she has been receiving from the account of a deceased husband.

"* * * [T]he statement by Wilma Amis, is typical of the 'proof' that is in the record. Mrs. Amos [sic.] testified that she was no longer at home with her mother after she became married and that she could not, therefore, say that the mother's testimony of having received 'checks' was not correct. The child of the claimant who was actually living with the wage-earner during his last year was Rosa Lee Sandlin, later Rosalie English. Rosalie English. Rosalie English's written statement dated May 14, 1964 * * * was that the wage-earner did send hie mother amounts ranging from $10 to $25 on three or four occasions in a year. The Hearing Examiner finds that Mrs. English was in a more advantageous position to know and that statements by her mother and her mother's physician, Dr. J.R. Aker, to the contrary, that hers is the more credible testimony.

"It is obvious that for years prior to the wage-earner's death, the claimant and her family were supported by a combination of monthly benefits and their own efforts. The finding, therefore, is that the wage-earner was not providing the claimant one-half of her support at the time of his death. At the time of the wage-earners' [sic.] death, the economic relationship was one between the claimant and her children living at home with her. The record shows that rather than being a dependent of any individual, the claimant actually provided for her own support and with help from her children and Public Assistance, for the support of her children.

"The Hearing Examiner accordingly finds that the claimant was not receiving one-half of her support from the wage-earner at the time of his death. It is, therefore, the decision of the Hearing Examiner that the claimant is not entitled to the Parent's Insurance Benefits for which she filed application."* * *

Under § 205(g) of the Social Security Act, 42 U.S.C.A., § 405(g), it is provided: "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." Beshears v. Celebrezze, 338 F.2d 998, C.A.5 (1964); Domanski v. Celebrezze, 323 F.2d 882, C.A. 6, certiorari denied 376 U.S. 958 (1964). [SSR 64-61c, C.B. 1064, p. 44.]

As the Court has pointed out in Domanski v. Celebrezze, supra, (p. 885), it is clear that "in an action to review the decision of the Secretary the case is not tried de novo in the District Court. The review is limited to the record of the proceedings before the Secretary. In reviewing this record the Court is not authorized to adopt findings of fact of his own, but must accept the Secretary's findings of fact if they are supported by substantial evidence. When so supported, they are conclusive. 42 U.S.C. § 405; Hobby v. Hodges, 215 F.2d 754, (C.A.4).

We are not at liberty to consider the factual issue de novo, but we inquire only whether the Secretary's finding was supported by substantial evidence. King v. Celebrezze, 341 F.2d 108, 109 (CA.6); Thomas v. Celebrezze, 341 F.2d 541, 543 (C.A.4).

Thus the Secretary, and not the Court is charged with the duty to weigh the evidence, to resolve material conflicts in the testimony and to determine the case accordingly.

The plaintiff did not show by any probative evidence that in fact, within the immediately preceding year of the death of her deceased son, Harlan H. Burns, she received at least one-half of her support from him.

Upon consideration of all the evidence in the case, I am of the opinion that the final decision of the Hearing Examiner is supported by substantial evidence and is, therefore, conclusive upon the Court and must be affirmed.

For the reasons indicated, an order will be entered affirming the actio of the Appeals Council of February 2, 1965, approving the Hearing Examiner's decision of October 22, 1964 which stands as the final decision of the defendant, Secretary of Health, Education and Welfare, and ordering that this action be dismissed.

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