The opinion of the court was delivered by: Mercer, Chief Judge.
This is an action to review a decision of the Appeals Council
of the Social Security Administration disallowing plaintiff's
claim for child benefits under the provisions of Section 202(d)
Social Security Act, 42 U.S.C.A. § 402(d).
Plaintiff, Shirley L. Heikes, married Edwin Hodges, the
deceased wage earner, on March 12, 1952. A son, Michael K.
Hodges, was born of this union on January 15, 1953. In the
meantime, plaintiff and Hodges were separated and the child never
lived with his father. The plaintiff obtained a divorce from
Hodges on February 8, 1955 and, thereafter, on April 2, 1955, was
married to George Heikes. Hodges died on October 17, 1955. On
January 13, 1956, plaintiff, on behalf of Michael, filed an
application under Section 202(d) of the Act for child's insurance
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 followed.
Plaintiff prays a summary judgment reversing that decision of
the Appeals Council and reinstating the decision of the Referee.
The cause is an appropriate one for summary decision, there being
no questions of fact before the court for decision. Rule 56,
F.R.Civ.P., 28 U.S.C.A.
The Social Security Act provides that upon judicial review of
administrative agency decisions, the findings of the agency are
conclusive if supported by substantial evidence. 42 U.S.C.A. §
405(g). That conclusive restriction upon the courts extends as
well to the inferences drawn by the agency if they have a
substantial basis upon the record evidence. Rosewall v. Folsom, 7
Cir., 239 F.2d 724.
Unfortunately, that guiding principle of judicial review of
administrative decisions is much more easily stated than applied.
"Support by substantial evidence" is not a term of art admitting
of precise definition. As the Court of Appeals for the Eighth
Circuit so aptly said in Osceola County Co-Op Creamery Ass'n v.
N.L.R.B., 251 F.2d 62, 64, "no definite formula for judicial
review" of administrative decisions can be devised and "much must
be left to the sound judicial discretion of the reviewing court."
In the sense here used however, "sound discretion" must be read
in the light of existing judicial pronouncements which point the
way to a happy balance between the seemingly irreconcilable
concepts of finality of administrative decision and the exercise
of judicial discretion on review thereof.
Any review of judicial decisions pertinent to this question
must begin with the decision in Universal Camera Corp. v.
N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, the first
definitive ruling as to the permissible scope of judicial review
under the "substantial evidence" principle. In that case, a trial
examiner assigned to hear a petition for reinstatement of certain
discharged employees recommended that the petition be dismissed.
The Board overruled the examiner and ordered reinstatement. On
review the Court of Appeals for the Second Circuit held that
substantial evidence supported the Board's order and that the
court, under the substantial evidence
principle could attach no significance to the Board's rejection
of the findings of its trial examiner. National Labor Relations
Board v. Universal Camera Corp., 179 F.2d 749. The decision of
the Court of Appeals was reversed and the cause remanded, the
Court holding that the findings of the examiner were relevant to
a determination whether the administrative order was supported by
substantial evidence. In pertinent part, the Court said, 340 U.S.
at pages 496-497, 71 S.Ct. at page 169:
"We do not require that the examiner's findings be
given more weight than in reason and in the light of
judicial experience they deserve. The `substantial
evidence' standard is not modified in any way when
the Board and its examiner disagree. We intend only
to recognize 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. To
give it this significance does not seem to us
materially more difficult than to heed the other
factors which in sum determine whether evidence is
"The direction in which the law moves is often a
guide for decision of particular cases, and here it
serves to confirm our conclusion. However halting its
progress, the trend in litigation is toward a
rational inquiry into truth, in which the tribunal
considers everything `logically probative of some
matter requiring to be proved.' * * * It would
reverse this process for courts to deny examiners'
findings the probative force they would have in the
conduct of affairs outside a courtroom.
"We therefore remand the cause to the Court of
Appeals. On reconsideration of the record it should
accord the findings of the trial examiner the
relevance that they reasonably command in answering
the comprehensive question whether the evidence
supporting the Board's order is substantial."
While a court, within the scope of the principle announced in
the Universal case, may not circumscribe the power of an
administrative agency to reverse the findings of its referee or
examiner within the narrow confines of the "clearly erroneous"
concept established by the Federal Rules of Civil Procedure,
F.C.C. v. Allentown Broadcasting Co., 349 U.S. 358, 75 S.Ct. 855,
99 L.Ed. 1147, it is the duty of a court in reviewing an
administrative decision to consider both the evidence supporting
and the evidence opposed to that decision. Universal Camera Co.
v. N.L.R.B., supra, 340 U.S. at page 497, 71 S.Ct. at page 169;
Local No. 3, etc. v. N.L.R.B., 8 Cir., 210 F.2d 325, certiorari
denied Local No. 3 etc. v. Wilson & Co., 348 U.S. 822, 75 S.Ct.
36, 99 L.Ed. 648. In the latter case the court said that the
Universal Camera decision requires "this court in cases here on
petition for review of an order of the National Labor Relations
Board to consider the conflicting evidence and if it is our duty
to consider it then we must pass upon its weight." 210 F.2d at
page 330. In Southern Stevedoring Co. v. Voris, 5 Cir.,
218 F.2d 250, 254, the court interpreted the Universal Camera principle as
imposing upon a court reviewing an administrative decision "the
duty * * * to determine, on the basis of the entire record,
whether there is substantial, reliable and probative evidence to
support the findings of the administrative agency." In National
Labor Relations Board v. Pacific Intermountain Express Co., 8
Cir., 228 F.2d
170, 171, the court said, inter alia, interpreting the Universal
"The court is justified in setting aside the
Board's decision when it cannot conscientiously find
that the evidence supporting the Board's decision is
substantial when viewed in the light of the record in
its entirety including the evidence opposed to the
Finally, in In re United Corporation, 3 Cir., 249 F.2d 168, the
court reviewed an order of the Securities and Exchange Commission
which was based upon the agency's rejection of its trial
examiner's findings on certain questions as to compensation
allowable for services rendered in the ...