Baetich v. Hobby, 173
| Decision Date | 23 April 1954 |
| Docket Number | Docket 22939.,No. 173,173 |
| Citation | 212 F.2d 480 |
| Parties | BAETICH v. HOBBY. |
| Court | U.S. Court of Appeals — Second Circuit |
Gainsburg, Gottlieb, Levitan & Cole, Samuel Gottlieb, New York City (Emanuel Baetich and Harry Giesow, New York City, of counsel), for plaintiff-appellee.
Warren E. Burger, Asst. Atty. Gen., Leonard P. Moore, U. S. Atty., Brooklyn, N. Y., Samuel D. Slade, and John G. Roberts, Washington, D. C., Attys., Dept. of Justice, for defendant-appellant.
Before CHASE, Chief Judge, and FRANK and HINCKS, Circuit Judges.
The uncontroverted facts in this case and its history can be stated briefly. The plaintiff's daughter became stricken by cancer in July, 1949 and died approximately 27 months later in September 1951. Up to the time of her illness, the daughter had long contributed more than one-half of the plaintiff's support and thereafter the plaintiff has been supported by his son. In July, 1949, it was believed that the daughter because of her illness had only four months to live but by subjecting herself to what was then unorthodox treatment, her life was prolonged until September, 1951 — some 27 months later.
Thereafter plaintiff applied for the benefits flowing to him as a parent who had received at least one-half of his support from the deceased daughter as a fully insured individual under the Social Security Act, 42 U.S.C.A. § 301 et seq., and specifically Sec. 402(h) thereof. The portion of the section just cited, which is relevant here reads as follows:
"Every parent * * * of an individual who died a fully insured individual * * * (who) * * 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 * * *."
This application was denied by the Federal Security Agency (the predecessor agency of the Department of Health, Education and Welfare) and on appeal to a referee of the Social Security Administration was also denied on the ground that the daughter was not contributing to the support of the plaintiff "at the time of" her death. A request for a review by the Appeals Council of the Social Security Administration, Federal Security Agency, was refused, whereupon plaintiff instituted this action in the District Court, agreeable to 42 U. S.C.A. § 405(c)(8) and (g). The District Court granted the plaintiff's motion for judgment on the pleadings and entered judgment accordingly, thereby sustaining the plaintiff's application.
There was no administrative regulation in force at the time of the daughter's death, and so far as we are aware none has since been promulgated, which purported to define the statutory condition "at the time of such individual's death" imposed by 42 U.S.C.A. § 402(h). However there was a regulation, 20 C.F. R. 404, 720, which, under the caption "Evidence of receipt of support by parent," required the parental applicant to list, for a period of at least one year preceding death of the wage-earner, all the items of contributions to the parent's support by the wage-earner together with all detail as to the parent's income from other sources. Its obvious purpose was to obtain a factual background from which to determine whether the statutory condition had been satisfied in the...
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Collins v. Secretary of Health, Education and Welfare
...where plaintiffs did not establish that they were receiving one-half of their support from a wage-earner are as follows: Baetich v. Hobby, 2 Cir.1954, 212 F.2d 480, cert. den. 348 U.S. 831, 75 S.Ct. 54, 99 L.Ed. 656; Clark v. Celebrezze, 1 Cir.1965, 344 F.2d 479; Valuri v. Ribicoff, supra; ......
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Tucker v. Celebrezze
...mathematical determination without going back for some period before death and adding up the contributions and expenses. See Baetich v. Hobby, 2 Cir., 212 F.2d 480; Zugg v. Folsom, D.C., 140 F.Supp. 806; Mocogni on Behalf of Lyons v. Hobby, D.C., 126 F.Supp. 472; Spencer v. Flemming, D.C., ......
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Runge v. Fleming
...as to the Act's extensiveness referred to in Stephens v. Federal Security Administrator, D.C.E. D.Ill., 121 F.Supp. 120 and Baetich v. Hobby, 2 Cir., 212 F.2d 480, certiorari denied 348 U.S. 831, 75 S.Ct. 54, 99 L. Ed. 656, which cases, while not exactly in point on the facts, nevertheless,......
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Hupp v. Celebrezze
...courts use a time of death test to determine if the child was being supported at the time of the death of the wage earner. Baetrich v. Hobby, 212 F.2d 480 (2nd Cir.); Zugg v. Folsom, D.C., 140 F.Supp. 806; Mocogni on Behalf of Lyons v. Hobby, D.C., 126 F.Supp. 472; Spencer v. Flemming, D.C.......