Conklin v. Celebrezze, 13868.

Decision Date20 June 1963
Docket NumberNo. 13868.,13868.
Citation319 F.2d 569
PartiesAnna CONKLIN, Plaintiff-Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education & Welfare, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Cleland P. Fisher and Willard P. McDermott, Janesville, Wis., for appellant.

N. S. Heffernan, U. S. Atty., Bronson C. La Follette, Asst. U. S. Atty., Madison, Wis., for appellee.

Before HASTINGS, Chief Judge, and KNOCH, and KILEY, Circuit Judges.

KILEY, Circuit Judge.

The District Court entered summary judgment for defendant Secretary and dismissed plaintiff's suit to review an order denying her benefits under the Social Security Act. Plaintiff has appealed.

Upon her husband's death, plaintiff now eighty-four years old, became sole owner of an eight room house in Janesville, Wisconsin. The second floor of the house had been made into two apartments before her husband died. One of the apartments was rented for $32.50 a month, the other for $7.00 a week. Downstairs, a room was rented for $6.00 a week. She lived in two rooms downstairs.

In February, 1960, plaintiff filed an application for old age insurance benefits1 based on earnings from self-employment for the years 1956 through 1959.2 After a hearing in February, 1961, the Hearing Examiner denied her application and the Appeals Council denied review.3 This suit4 and the summary judgment appealed from followed.

In order for plaintiff to qualify for old age insurance benefits as "self-employed" her annual net earnings from self-employment had to be at least $400.00. 42 U.S.C. § 411(b) (2). And "net earnings" means gross income from a trade or business less trade or business deductions. 42 U.S.C. § 411(a). But in computing the gross income and deductions, "there shall be excluded rentals from real estate * * * together with the deductions attributable thereto, unless such rentals are received in the course of a trade or business as a real estate dealer * * *." 42 U.S.C. § 411(a) (1).

A pertinent regulation of the Social Security Administration provides: "Payments for the use or occupancy of rooms or other space where services are also rendered to the occupant, such as for the use or occupancy of rooms or other quarters in hotels, boarding houses, or apartment houses furnishing hotel service, * * * do not constitute rentals from real estate * * *." 20 C.F.R. § 404.1052(a) (3).

There is no conflict in the evidence. The question of law presented is whether there is substantial evidence on the record as a whole to support the finding of the Hearing Examiner, confirmed by the Appeals Council, that plaintiff's income from the two second floor apartments was "rentals from real estate," not received in the course of a trade or business as a real estate dealer; and that plaintiff rendered insufficient service to the upstairs tenants to sustain her application. The Examiner decided that that income had to be excluded in computing plaintiff's net earnings from self-employment, with the result that she did not qualify for the old age insurance benefits she sought. The decision rested on the conclusion that Anna Conklin had less than $400.00 per year in payments for use or occupancy of rooms "where services are also rendered to the occupant."

It is not disputed that plaintiff performed more than adequate services for the downstairs tenant. Daily, she made the bed, dusted and cleaned the room; she supplied fresh linen weekly, cleaned the bathroom regularly and supplied soap. For the room and all services, she received $6.00 per week, which, without more, made her yearly income from self-employment $88.00 short of the $400.00 minimum.

Plaintiff received packages for the upstairs tenants; placed them where they would be found by the tenants; answered the door and directed callers to the right apartments; rendered a constant telephone message service; stoked the furnace; carried ashes from the basement to the street; occasionally cleaned the stairs leading to the second floor, and the small upper hall floor; cleaned the common hall downstairs; maintained a workshop and storeroom on the premises for tools and supplies; and cleaned and repainted the apartments on the second floor when tenants changed.

In Thorbus v. Hobby, 124 F.Supp. 868 (S....

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18 cases
  • Berryhill v. Shalala
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • September 16, 1993
    ...a minimal level of income for the elderly and disabled. See Whaley v. Schweiker, 663 F.2d 871, 873 (9th Cir.1981); Conklin v. Celebrezze, 319 F.2d 569, 571 (7th Cir.1963). The Secretary counters, arguing that Berryhill did not engage in a trade or business. 20 C.F.R. Sec. 404.1066 (1993) pr......
  • Vogel v. Sullivan
    • United States
    • U.S. District Court — Northern District of Illinois
    • February 22, 1990
    ...customarily perform. (A.R. 7). We recognize that the Social Security Act is intended to be interpreted liberally, Conklin v. Celebrezze, 319 F.2d 569, 571 (7th Cir.1963), and that, in keeping with this intention, the 20 C.F.R. § 404.1082(d)(2) provision that a claimant must render services ......
  • Gresham v. Califano
    • United States
    • U.S. District Court — Southern District of Texas
    • April 13, 1981
    ...Cir. 1967); Hoffman v. Gardner, 369 F.2d 837 (8th Cir. 1966); Rodriguez v. Celebrezze, 349 F.2d 494 (1st Cir. 1965); Conklin v. Celebrezze, 319 F.2d 569 (7th Cir. 1963); Campbell v. Califano, 483 F.Supp. 1306 (E.D.Pa.1980); White v. Califano, 473 F.Supp. 503 (S.D.W.Va. 1979); Hernandez v. C......
  • Becker v. Harris
    • United States
    • U.S. District Court — Eastern District of California
    • July 17, 1980
    ...when the facts and circumstances of the case are reviewed in the legal context of the applicable statutes. See, e. g., Conklin v. Celebrezze, 319 F.2d 569 (7th Cir., 1963); Hudson v. Celebrezze, 220 F.Supp. 738 (E.D.N.C. 1963). If the facts and circumstances indicate that a claimant is enti......
  • Request a trial to view additional results
2 books & journal articles
  • Introduction
    • United States
    • James Publishing Practical Law Books Social Security Disability Advocate's Handbook Content
    • May 4, 2020
    ...intended to be inclusive rather than exclusive. See , Carroll v. Social Sec. Bd. , 128 F.2d 876 (7th Cir. 1942); Conklin v. Celebrezze , 319 F.2d 569 (7th Cir. 1963); Floyd v. Finch, 441 F.2d 73, 76-78, 104-05 (6th Cir. 1971); Marcus v. Califano , 615 F.2d 23 (2nd Cir. 1979); Doran v. Schwe......
  • Introduction
    • United States
    • James Publishing Practical Law Books Archive Social Security Disability Advocate's Handbook. Volume 1 - 2014 Contents
    • August 18, 2014
    ...intended to be inclusive rather than exclusive. See , Carroll v. Social Sec. Bd. , 128 F.2d 876 (7th Cir. 1942); Conklin v. Celebrezze , 319 F.2d 569 (7th Cir. 1963); Wyatt v. Barnhart , 349 F.3d 983, 986 (7th Cir. 2003); Floyd v. Finch, 441 F.2d 73, 76-78, 104-05 (6th Cir. 1971); Marcus v.......

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