Pirone v. Flemming

• Decision Date: 15 May 1959
• Citation: 183 F. Supp. 739
• Parties: Nicola PIRONE, Plaintiff, v. Arthur S. FLEMMING, Department of Health, Education and Welfare of the Social Security Administration, Defendant.
• Court: U.S. District Court — Southern District of New York

183 F. Supp. 739

Nicola PIRONE, Plaintiff, v. Arthur S. FLEMMING, Department of Health, Education and Welfare of the Social Security Administration, Defendant.

United States District Court S. D. New York.

May 15, 1959.

Dante S. Alberi, Mt. Vernon, N. Y., Gioffre & Gioffre, White Plains, N. Y., for plaintiff.

Arthur H. Christy, U. S. Atty., New York City, John W. Hasson, Asst. U. S. Atty., Woodside, N. Y., for defendant.

CASHIN, District Judge.

This is a motion by defendant pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., for summary judgment.

On February 16, 1955, plaintiff filed an application for old-age insurance benefits, and also filed an application for insurance benefits for his two children on the plaintiff's wage record. Plaintiff's wife also filed an application for insurance benefits on the plaintiff's wage record. On September 14, 1956, plaintiff and his wife were awarded the sought-after benefits, effective February 1955. These benefits were subsequently revoked by the Bureau of Old-Age & Survivors Insurance of the Social Security Administration upon the ground that the claimant was the owner of a business and was rendering services as a self-employed person, and that his earnings were in excess of the statutory limitation. Plaintiff had a rehearing and the Bureau affirmed its determination. All of the above was before the Bureau. Plaintiff then requested a hearing before a Referee of the Social Security Administration to review the determination of the Bureau. This was had and the Referee affirmed the Bureau of Old-Age & Survivors Insurance. An appeal by plaintiff, from the affirmance, was taken for review and his request for review was denied by the Appeals Council of the Department of Health, Education & Welfare. Thereafter, this action was started.

The action was properly instituted. 42 U.S.C.A. § 405(g). The Secretary filed, as part of its answer, a certified copy of the transcript of the record, including the evidence upon which the findings and decision, sought to be reviewed, was based. This is also pursuant to Section 405(g) supra. Section 405(g) states, in part, as follows:

"As part of its answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing."

The court will treat this motion as one made under the above provision, for judgment on the pleadings.

"The findings of the Secretary of Health, Education & Welfare as to any fact, if supported by substantial evidence, shall be conclusive, * * *". 42 U.S.C.A. § 405(g). The court is not authorized to substitute its judgment for the judgment of the administrative agency, nor may it set aside a determination of the Appeals Council of the Social Security Administration if there is a legal basis therefor. See Crooks v. Folsom, D.C., 156 F.Supp. 631. The decision of the Appeals Council is the final decision of...