20 CFR 404.1004(c)

SSR 63-51c

ANDERSON v. CELEBREZZE, U.S.D.C., N.D. of Ind., Lafayette Area, Hammond Div., Civ. No. 147, (11/15/62) (CCH UIR-1, Fed. Par. 14,733)

Where a State extended social security coverage under an agreement pursuant to section 218 of the Social Security Act to employees of a county but not to employees of a township within such county, and where pursuant to State law officials of the township appointed a deputy tax assessor who was compensated by the county but whose services were performed under the direct supervision and control of the township officials, held the deputy tax assessor was an employee of the township and not an employee of the county and, since coverage was not extended to employees of the township, his services were not covered for social security benefit purposes.

ESCHBACH, District Judge:

The captioned matter is now before the Court on defendant's Motion for Summary Judgment. Preliminary to a disposition of the instant motion, a brief statement of the pertinent facts herein is appropriate.

Plaintiffs seek in the instant action a review of a decision of the hearing examiner of the Office of Hearings and Appeals, Social Security Administration, denying their claims for old-age insurance benefits * * *. Jurisdiction of the Court to entertain the captioned matter is founded upon 42 U.S.C.A. § 405(g).

The pertinent facts are not in dispute and are as follows:

Plaintiff Samuel O. Anderson applied for old-age benefits on February 21, 1955. * * * [T]he Bureau of Old-Age and Survivors Insurance determined that the services performed by plaintiff as Deputy Tax Assessor in Union Township, White County, Indiana, did not constitute "employment" as defined in the Act; that the remuneration received by him for such services were, therefore, not "wages" creditable to his earnings record, and, therefore, that no benefits [are payable] to plaintiffs. Upon reconsideration, the Bureau of Old-Age and Survivors Insurance affirmed its determination, whereupon plaintiff, on July 8, 1959, requested a hearing before a hearing examiner of the Office of Hearings and Appeals. Such hearing was held, and the hearing examiner having heard testimony and examined the documentary evidence submitted the decision of the Bureau * * *.

The sole [finding of the hearing examiner which is assailed by plaintiff is] that plaintiff as a Deputy Union Township Assessor was not an employee of White County and, therefore, not entitled to old-age benefits, as Union Township employees at the time material herein were not covered by an agreement for coverage with the defendant * * *. The Court's sole concern in these regards is whether the findings of the hearing examiner are supported by substantial evidence. 42 U.S.C.A. § 405(g), Rosewall v. Folsom, C.A. 7, 239 F.2d 724, 728 (1957), Carqueville v. Flemming, C.A. 7, 263 F.2d 875, 877 (1959), Brunenkant v. Celebrezze, C.A. 7, No. 13715, October 31, 1962.

It is manifest from the opinion written by the hearing examiner indicating exhaustive research of the legal principles governing plaintiff's status * * * that his determination is supported by substantial evidence and is, therefore, conclusive. It was correctly perceived by the hearing examiner that although the officials of White County were under the impression that plaintiff as a Deputy Union Township Assessor was covered under the agreement providing coverage for employees of White County, and although the Attorney General of Indiana had submitted an opinion that deputy Union Township assessors were offices of Union Township, and not of White County, neither of those determinations could be binding upon the defendant. Rather, the hearing examiner considered all of the factors relevant to the question of plaintiff's status, such as, by whom his salary was paid, the degree of control which could be exercised over him and by whom in the discharge of his duties, etc. There was substantial evidence to support the conclusion that although the township officials were paid from the county treasury, this was merely a matter of administrative convenience and economy and that the county could not legally control the exercise by the township officials and their employees of their respective duties, whatever degree of cooperation there may have been between the two political subdivisions.

Such being the case, there can be no question but that the hearing examiner's decision that plaintiff was an employee of Union Township, and not White County, was supported by substantial evidence and, therefore, is conclusive.

* * * * * * *

Defendant's Motion for Summary Judgement is, therefore, now granted and judgment is now entered for the defendant.

Cost to be taxed in favor of the defendant. Entered: November 15, 1962.

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