Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.
Was there substantial evidence to support the finding of a Social Security Administration referee that a claimant for Old Age Insurance benefits had not been employed as claimed?
That issue is presented on this appeal from the Order of the District Court for the Eastern District of Pennsylvania granting the motion of the defendant Secretary of Health, Education and Welfare ("Secretary") for summary judgment. In granting the Secretary's motion, the District Court affirmed the final decision of the Social Security Administration that Mrs. Esther Goldman*fn1 ("claimant") was not an employee of certain corporations owned by her son and did not receive the wages from those corporations which were required to make her eligible for old-age insurance benefits under the Social Security Act.*fn2
The facts may be summarized as follows:
On June 18, 1953, claimant, then aged seventy, filed an application for old-age insurance benefits with the Bureau of Old-Age and Survivors Insurance of the Social Security Administration ("Bureau"). In that application she stated that she had been employed by Charles Murray, Inc., Sandro, Inc., and Regency Clothes, Inc. from October, 1951 until March, 1953. Subsequently, on July 2, 1953, claimant was awarded old-age insurance benefits of $65.00 monthly which were paid to her for the period beginning April, 1953, and continuing through January, 1954.
Payments to claimant were terminated effective February, 1954. The Bureau made its determination that she had acquired no quarters of coverage by reason of the fact that she had not been employed nor had she received wages as she had claimed in her application. The Bureau's determination was based on a report made by its field representative, F. W. Brobyn that claimant had advised him when he called on her on February 18, 1954 that she had not been employed since the 1930's. Thereafter claimant requested and received a hearing before a referee of the Social Security Administration on July 25, 1955, and an adjourned hearing on August 5, 1955. She did not appear personally at these hearings because of her physical condition but was represented by her attorney.
At the July 25th hearing, Dr. Morris Elkin, claimant's physician, Herbert L. Goldman, her son and an officer of the corporations which employed her, Ronald Berman, her former fellow-employee and Jesse Ianni, her long-time friend, testified in claimant's behalf. Affidavit of a certified public accountant and four one-time fellow employees of claimant, as to her employment, were also adduced.
Brobyn testified with respect to his investigation and a satement of June 25, 1954, which he had obtained from the claimant.
At the further hearing on August 5, 1955, Florence Polk, one of the two attesting witnesses to the June 25, 1954, statement, appeared and testified, pursuant to the referee's subpoena. The second attesting witness, Ida Lessner, could not be found.
On September 29, 1955, the referee rendered his decision affirming the Bureau's determination as to the claimant's non-eligibility to benefits on the specific finding that "* * * claimant was not an employee of the three corporations, and did not receive a wage or salary from these corporations. Claimant had no quarters of coverage and was not entitled to old-age insurance benefits."
The request of the claimant for review of the referee's decision was denied on December 28, 1955, by the Appeals Council of the Social Security Administration and it then became a final decision within the meaning of the Social Security Act. Suit for review was then instituted in the District Court which, as earlier stated, granted the Secretary's motion for summary judgment, resulting in the instant appeal.
Section 205(g) of the Social Security Act, as amended*fn3 provides:
"* * * The findings of the Administrator*fn4 as to any fact, if supported by substantial evidence, ...