Tucker v. Celebrezze

• Decision Date: 05 August 1963
• Docket Number: Civ. No. 1204.
• Citation: 220 F. Supp. 209
• Parties: Elmer J. TUCKER and Hannah Tucker, Plaintiffs, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Northern District of Iowa

220 F. Supp. 209

Elmer J. TUCKER and Hannah Tucker, Plaintiffs, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Defendant.

Civ. No. 1204.

United States District Court N. D. Iowa, W. D.

August 5, 1963.

Warren G. Dunkle, Sioux City, Iowa, for plaintiff.

Donald E. O'Brien, U. S. Atty., Sioux City, Iowa, for defendant.

HANSON, District Judge.

This is an action under 42 U.S.C. § 405(g) to review a final decision of the Secretary. Elmer J. Tucker and Hannah Tucker are the parents of Arnold E. Tucker. Arnold E. Tucker was killed August 14, 1957. This is admitted. The said parents are claiming Social Security benefits based on the work record of their son, the said Arnold E. Tucker, deceased.

42 U.S.C. § 402(h) (1) provides that the parent of an individual who died fully insured may, upon reaching retirement age, become entitled to parent's insurance benefits on the Social Security account of the deceased child if (inter alia) such parent was receiving at least one-half of his support from the child at the time of the child's death.

The parents claim that each of them were receiving at least one-half of their support from decedent during the twelve months prior to their son's death. This is denied by the defendant.

Upon a hearing before the Hearing Examiner, Eva L. Newman, it was the decision of the said Examiner that the parents were receiving at least one-half of their support from their deceased son, and that upon reaching retirement age, they would become entitled to parents' insurance benefits upon the work record of said Arnold E. Tucker, deceased.

The Appeals Council, on its own motion, reviewed the decision and reversed the Hearing Examiner. They found that the parents were not receiving one-half of their support from their deceased son, Arnold E. Tucker.

The findings of fact made by the Secretary, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405 (g). The conclusions of law made by the Secretary are not binding. Celebrezze v. Bolas, 316 F.2d 498 (8th Cir. reversing D.C. of Neb.)

The plaintiffs, the parents, claim that the finding that the parents were not receiving at least one-half of their income from their deceased son at the time of his death is not supported by substantial evidence.

Plaintiffs also claim that the referee's finding as to credibility should be followed rather than the findings as to credibility made by the Appeals Council. Plaintiffs claim the Appeals Council made an error in law in reaching their findings of fact because they presumed that the brother had to support his sister.

The Appeals Council found:

(1) That the claimants were not receiving one-half of their support from the wage earner at the time of his death. (It is stated that the finding is based on the findings of the Hearing Examiner).

(2) That the claimants have not maintained the burden of establishing by reliable evidence that they were receiving one-half of their support from the wage earner at the time of his death. (This finding was based on the credibility of the witnesses and lack of specificity in the evidence.)

The only issue is whether there is substantial evidence to support the findings. This decision necessitates a discussion of the evidence relied upon by the Appeals Council first and then a discussion of the other evidence, if any, in the record which would support the Appeals Council.

It is clear that the Appeals Council's findings are given less weight in a case where they reject the Hearing Examiner's findings than in a case where they sustain the Hearing Examiner's findings. Heikes v. Flemming, 7 Cir., 272 F.2d 137; In Re United Corporation, 3 Cir., 249 F.2d 168; Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. In such a case in determining the substantiability of the evidence in the record, the Hearing Examiner's report must be considered. P. 178 of In re United Corporation, in 249 F.2d. This is even more important where credibility is involved. Heikes v. Flemming, 272 F.2d p. 139, approved the District Court's determination that the Referee's findings shall be followed where credibility is involved rather than the findings of the Appeals Council. (168 F.Supp. 675, 679, of the District Court opinion.)

The Examiner and the Council used income and expenses for a period of one year prior to the deceased's death to determine the issue of support. This was from August 14, 1956, to August 14, 1957. It should first be stated that the courts have never required this determination period to be an inflexible one. The idea is to determine whether at the time of death there was support amounting to more than half being given, or to state it another way, whether the death caused a loss of more than one-half of their support. It is the support at the time of death that counts but it is impossible to achieve a 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., 188 F.Supp. 517; Dowell v. Folsom, D. C., 157 F.Supp. 46; Stephens v. Federal Security Administrator, D.C., 121 F. Supp. 120; Hupp v. Celebrezze (N.D. Iowa, 1962), 220 F.Supp. 463.

The Examiner and the Council used a period of one year prior to the death of the deceased and this Court is considering that as a reasonable period of time to use. Probably the time test as to whether a sum of money should be considered support is whether it would be likely to recur in the future. See Schroeder v. Hobby, 10 Cir., 222 F.2d 713.

The Hearing Examiner concluded:

(1) That the cost of support of each individual in the family was $419.34. (The Examiner recognizes this is not completely correct because it includes an amount which should be allocated as an expense in keeping up the claimants' store (see Exhibits B and C and pgs. 146 and 147 of the record) and it does not include clothing, medical or dental expenses, and other personal items);

(2) That the deceased wage earner's net contribution was $550.00;

(3) That total other income used for the parents' support did not exceed $485.00. (This is probably an error in law in that the $50.00 earned by the claimants' daughter, should have been added in, but this would not have changed the result. This family consisted of the parents, one minor daughter, and the now deceased son. The reason for this would be that the parent is entitled to the services of the minor child and also that no part of the $485.00 or the $550.00 was allocated to the support of the daughter.) This $485.00 constitutes income from the parents' store, rent earned, and wages.

Based on this, the Examiner found that the $550.00 exceeded the $485.00 and thus concluded that the deceased contributed over half of the support of the parents. (It would also be over half if the $50.00 is added to the $485.00.) The Appeals Council also finds these to be the conclusions and findings of the Examiner. However, the Appeals Council reversed the Examiner. On page 5 of the Appeals Council's decision, it points out that the estimated expenses exceed the estimated income. It concludes from this that the excess expenses must have been paid by income received from some source other than the deceased son. It points out that when only the income received from the son and the income received from other sources are considered, the expenses shown by the Examiner exceed this income by $192.00. It concludes that the amount came from a source other than the deceased son. ($50.00 of it came from the daughter.) If this $192.00 is considered to come wholly from sources other than the deceased, then the amount received from the deceased is not more than one-half of the support of the parents. Whether this conclusion is supported by the evidence is the first issue in this case.

The other issue, which is related to the first one, is whether a part of an inheritance of Hannah Tucker was used during the relevant period as support for the parents. The Examiner found that the inheritance was not used during this period as part of the support.

Before deciding these issues, it is necessary to comment on some other parts of the Appeal Council's opinion. Starting half way down page 5 and ending with the start of the first full paragraph on page 6, the Council analyzes another supposed reason why the deceased did not contribute more than half of the support of the parents. It first sets forth the figures used by the Examiner in her decision. These figures are correct except for the figure $513.01. The Examiner did not use that figure. (Apparently, this was an error and the Council meant to use the figure $531.01 which would be correct. It is also correct in that it added in the $50.00 contributed by the daughter.) The Council states as follows: that the cost of support of the parents would be $838.68. (This is twice the figure $419.34 or one-half of the figure $1,677.36. At any rate, it is subject to that margin of error that admittedly exists in the figure $1,677.36.) This may be the right figure to use but the rest of the reasoning on the point is a legal error.

The Council then states that the amount of contribution from sources other than the deceased is $513.01 ($531.01) and is over half of the figure $838.68 and from that it follows that the deceased did not contribute over one-half of the support of the parents. The error is that part (supposedly one-third) of the $513.01 ($531.01) should be allocated to the support of the daughter. When this is done, the amount received from sources other than the deceased son does not exceed one-half of the figure $838.68.

On page 6, when the Council approaches the problem from the other standpoint, it makes the same error as it divided the figure $513.01 ($531.01) by two when it should have been divided by three. This...