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KOSNOSKY v. RICHARDSON

July 16, 1971

Andrew J. KOSNOSKY, Plaintiff,
v.
Elliott L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant


Marsh, Chief Judge.


The opinion of the court was delivered by: MARSH

MARSH, Chief Judge.

 On September 18, 1964, plaintiff, Andrew J. Kosnosky, filed with the Social Security Administration, Bureau of Old-Age and Survivors Insurance, an "Application for Insurance Benefits for Child of Living Wage Earner * * *" (Tr., pp. 74-77) under § 202(d) of the Social Security Act, as amended, 42 U.S.C.A. § 402(d), alleging that he was under a disability, as defined in § 223(c) of the Act, as amended, 42 U.S.C.A. § 423(c), which began before he attained the age of eighteen. Plaintiff qualified under § 202(d) as a child dependent on his father, Steve Kvanosky, a wage earner entitled to disability insurance benefits under the Act. *fn1" Plaintiff's claim was denied by the Bureau, and at plaintiff's request a hearing was had before a hearing examiner of the Social Security Administration who also denied plaintiff's claim. On January 6, 1966, the Appeals Council of the Social Security Administration advised plaintiff that his request for review by it of the hearing examiner's decision was denied and that the hearing examiner's decision stood as the final decision of the Secretary of Health, Education and Welfare. Pursuant to § 205(g) of the Act, 42 U.S.C.A. § 405(g), plaintiff then commenced this action, pro se, to obtain a judicial review of the decision of the Secretary, proceeding in forma pauperis by leave of the court. The defendant filed a certified copy of the transcript of the record of the proceedings before the Social Security authorities in compliance with § 205(g) of the Act, supra, and subsequently moved for summary judgment. At oral argument, the plaintiff and his father appeared without counsel.

 After argument and upon due consideration of the record submitted, this court concluded that the Secretary's final decision denying plaintiff benefits was not supported by substantial evidence and that plaintiff had met his burden of proving that he was disabled before he attained the age of 18. Accordingly, on February 28, 1967, it was ordered that the decision of the Secretary be reversed and the cause remanded with directions to grant plaintiff disability benefits in accordance with his application of September 18, 1964.

 On April 28, 1967, the Secretary filed a notice of appeal from the judgment of this court. After the docketing of his appeal the Secretary moved to vacate the judgment of the District Court and to order the case remanded to him for further consideration. On June 5, 1969, the Court of Appeals granted the Secretary's motion. *fn2"

 On November 19, 1969, a supplemental hearing was held before a hearing examiner of the Social Security Administration. Plaintiff and his father, unrepresented by counsel, appeared at this hearing and testified. Dr. Owen D. Benton, a psychiatrist, and Dr. George Stouffer, a vocational expert, testified as impartial expert witnesses at the request of the hearing examiner, and supplemental exhibits were received into evidence at the hearing. *fn3" After considering the additional evidence presented the hearing examiner filed a recommended decision holding that plaintiff was entitled to child's insurance benefits.

 The case then came before the Appeals Council for final administrative decision. The Council did not receive additional evidence, but reviewed the paper record "De Novo" and filed a written decision which concluded that plaintiff was not entitled to benefits. Accordingly, the final decision of the Secretary holds that plaintiff is not entitled to child's insurance benefits.

 Plaintiff has again commenced an action, pro se, to obtain a judicial review of the Secretary's final decision. The Secretary has moved that summary judgment be entered against the plaintiff because his final decision is supported by substantial evidence. On December 24, 1970, James B. Yelovich, Esquire, entered his appearance for the plaintiff, and on April 19, 1971, the case was submitted to this court on briefs without oral argument.

 Our jurisdiction and the scope of our review of administrative findings such as were made in this case are clear. Section 205(g) of the Act, supra, provides in pertinent part that:

 
"The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * *."

 Under § 205(g) and under the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., we are limited to "ascertaining whether on the record as a whole there is substantial evidence to support the Secretary's findings of fact." Goldman v. Folsom, 246 F.2d 776, 778 (3d Cir. 1957). But where, as in our present case, the hearing examiner and the Appeals Council disagree, the Supreme Court has instructed in Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 496, 71 S. Ct. 456, 469, 95 L. Ed. 456 (1951) that:

 
"* * * [Evidence] supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board's than when he has reached the same conclusion. The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case." (Emphasis supplied.)

 We must not abdicate our required function to scrutinize the record as a whole to determine if the Appeals Council's conclusions have a reasonable basis in law and that proper legal significance has been afforded to the primary evidentiary facts. Boyd v. Folsom, 257 F.2d 778 (3d Cir. 1958).

 Plaintiff was born on October 20, 1939 and claims to be the disabled child of Steve Kvanosky an individual entitled to disability insurance benefits. As such, under § 202(d) of the Act, supra, plaintiff is entitled to child's insurance benefits if he was under a disability which began before he attained the age of 18. ...


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