Heikes v. Flemming

• Decision Date: 02 December 1959
• Docket Number: No. 12670.,12670.
• Citation: 272 F.2d 137
• Parties: Shirley L. HEIKES, next friend of Michael K. Hodges, a minor, Plaintiff-Appellee, v. Arthur S. FLEMMING, Secretary of Health, Education and Welfare, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

272 F.2d 137 (1959)

Shirley L. HEIKES, next friend of Michael K. Hodges, a minor, Plaintiff-Appellee, v. Arthur S. FLEMMING, Secretary of Health, Education and Welfare, Defendant-Appellant.

No. 12670.

United States Court of Appeals Seventh Circuit.

December 2, 1959.

Alan S. Rosenthal, Atty., U. S. Dept. of Justice, Washington, D. C., Harlington Wood, Jr., U. S. Atty., Springfield, Ill., George Cochran Doub, Asst. Atty. Gen., Bernard Cedarbaum, Atty., Dept. of Justice, Washington, D. C., Marks Alexander, Asst. U. S. Atty., Springfield, Ill., and John M. Daugherty, Asst. U. S. Atty., Peoria, Ill., for appellant.

Leonard C. Berry, Macomb, Ill., for appellee.

Before SCHNACKENBERG, PARKINSON¹ and KNOCH, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Arthur S. Flemming, Secretary of Health, Education and Welfare, defendant, has appealed from a summary judgment entered by the district court, reversing the decision of defendant, embodied in an appeals council decision. The court reinstated the decision of a referee awarding a child's social security insurance benefits to Michael K. Hodges, a minor.

It appears from defendant's brief that Edwin Hodges, father of Michael K. Hodges, was killed in a vehicular accident on October 17, 1955, and that Michael's child's benefits claim was filed by plaintiff on his behalf shortly thereafter.

The efforts to procure for this minor child benefits under the Social Security Act, 42 U.S.C.A. § 402 et seq., have already proceeded through the following levels: Bureau of Old-Age and Survivors Insurance of the Social Security Administration, Referee, Appeals Council, and United States District Court. Only the traditional loyalty and persistence of members of the bar can explain the extensive services which plaintiff's attorney has rendered in his matter, with little likelihood of adequate compensation being realized from the granting of the benefits sought.

The evidentiary facts are largely undisputed. Michael was born to plaintiff on January 15, 1953. In October, 1953 plaintiff moved with Michael to the home of her mother, Mrs. Susie Zimmerman, Colchester, Illinois. On February 8, 1955, plaintiff was divorced from Hodges and the court awarded her custody of the child and required Hodges to pay $7.50 a week for the child's support. On April 2, 1955, plaintiff was married to George Heikes. The district court, 168 F.Supp. 675, 676, said:

"Section 202(d) (3) of the Act provides in pertinent part, that a child who has not attained the age of eighteen is deemed dependent upon his natural father, and, therefore, entitled to insurance benefits upon the death of the natural father, (Section 202(d) (1) (C), unless at such time the father was not living with or contributing to the support of the child, and such child was living with and was receiving more than one-half of his support from his stepfather. Other exclusionary conditions of that subsection have no application to this case.

"On April 30, 1956, the Bureau of Old-Age and Survivors Insurance of the Social Security Administration denied plaintiff\'s application for child\'s benefits on the ground that the child, Michael, was, at the time of the death of Hodges, the natural father, living with and receiving more than one-half of his support from his stepfather, Heikes. Thereafter, upon plaintiff\'s request, a hearing was had before a Referee, who, on October 23, 1957, reversed the Bureau\'s determination and allowed plaintiff\'s claim. The Appeals Council on its own motion then reviewed the Referee\'s decision and on January 21, 1958 reversed the decision and disallowed the claim. This proceeding

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