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November 18, 1959


The opinion of the court was delivered by: Poos, District Judge.

This case comes to this Court by way of a petition to review a decision of Arthur S. Flemming as Administrator of the Social Security Act, which decision denied claimant, Margaret R. O'Brien, old-age insurance benefits under Title II of the Social Security Act as amended, 42 U.S.C.A. § 401 et seq. The Referee and the Appeals Council denied the allegation for benefits, thereby leaving the findings and determinations of the Referee, as agent for the Secretary, in full force and effect.

The provisions of Section 205(g) of the Act, 42 U.S.C.A. § 405, gives this Court jurisdiction to hear and determine the review, and subdivision (g), among other things, provides:

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

This requires an examination of the record to determine whether or not the findings are supported by substantial evidence, and on such examination and study of the record the Court must arrive at its ultimate judgment.

The Referee states the issue to be:

    "The general issue in this case is whether or not
  Claimant is entitled to Old Age Insurance Benefits
  and the specific issues are whether or not Claimant
  was an employee of Leo from January 1955 until
  September 7, 1956. If she was such an employee, the
  question is whether or not Claimant was paid wages as
  defined by the Act by the employer amounting to at
  least $50 in any quarter and if she thereby acquired
  at least six quarters of coverage." (Record p. 8.)
  He defines the touchstone of the case as this:
    "* * * whether `the employer retains the right to
  direct the manner in which the business shall be
  done, as well as the results to be accomplished, or,
  in other words, "not only what shall be done, but how
  it shall be done."'" (Record p. 9.)

The issue is properly and correctly stated.

The Referee makes the finding:

    "* * * that Claimant received no wages at any time
  after January 1, 1955, hence acquired no quarters of
  coverage, and does not have the required quarters of
  coverage to constitute her a fully insured
    "It is the decision of the Referee that Claimant is
  not entitled to Old Age Insurance Benefits." (Record
  p. 17.)

Under this finding the power of the Court on this review is limited by Section 205(g) of the Act as above quoted to affirm this finding "if supported by substantial evidence." Thus the Court is required, under the law, to minutely examine this record to determine if there is substantial evidence to support this finding of fact. The corollary to this is that conclusions on factual issues, which are not supported by the facts in the record or by inferences justifiably drawn therefrom, can be disregarded by the Court. Also the Court is not required to consider erroneous application of the law to the facts.

The burden is upon claimant to prove her claim.

A thorough examination of the transcript shows that on October 12, 1956, claimant, Margaret R. O'Brien, then 67 years of age, made application for old-age insurance benefits under Title II of the Social Security Act as amended. On January 8, 1957, this claim was denied, and a request for a hearing was filed April 15, 1957. Hearing on said request was conducted at Peoria, Illinois, on June 20, 1958, at which claimant, together with her representative, appeared and produced evidence in support of claimant's position. The Referee ruled, on September 25, 1958, that claimant was not entitled to old-age insurance benefits because there was no true employer-employee relationship in existence. Claimant filed a request for review of the Referee's decision by the Appeals Council on November 25, 1958, and such request was denied February 13, 1959. Pursuant to the provisions of Section 205(g) of the Social Security Act, as amended, Section 405(g), Title 42 U.S.C.A., on April 14, 1959, claimant filed with this Court a petition for review of the Administrator's decision.

Claimant lived in her home on North Sixth Street in the City of Springfield, Illinois, which she purchased in 1921 by warranty deed from William R. and Louise West. Record p. 134. Her mother, Elizabeth O'Brien, and her sister, Rose O'Brien, lived with her. Until the latter part of 1954 claimant managed and cared for the household, prepared the meals for the three of them, and generally performed the work essential to the maintenance of a home. Rose was employed, and for many years paid $120 monthly for the operation of the home, and for claimant's own maintenance in exchange for claimant's services, and for the living which she received in claimant's home.

Claimant's mother had been under the care of a physician for many years prior to 1954, and from time to time it had been necessary to take her mother to the hospital, and at other times to have nurses come to the home to care for her. Her brother, James Leo O'Brien, who lives in Jacksonville, Illinois, where he operates a shoe store, had always paid his mother's hospital bills, doctor bills, and bills for nurses who had performed nursing services in the home for the mother. The necessity for hospitalization and nursing services was sporadic, and had not been regular over the years. In November and December of 1954, claimant's mother's condition became considerably worse so that it was apparent that either she would need special nurses again or would be placed in a hospital or nursing home. She was then 93 years of age. The mother preferred to remain at home and have such nurses as were necessary.

The mother complained of the treatment she received from the nurses who were brought in, and often screamed with pain when being turned or lifted by such nurses. The brother, Leo, decided he would have to get new and better nurses and stated to claimant that he did not care how much it cost. One evening late in December 1954, claimant and Leo went to the grocery store and upon leaving they discussed their mother's situation in the car. Claimant stated that if Leo was willing to pay anybody, she would like to try the job herself, and asked that she be given a trial; that she knew she could do the job. Discussion followed and Leo said that if she could do it, it would be all right. He inquired whether claimant could lift their mother. Claimant said that she was sure she could, and asked again that she be given a trial. Leo said that he would give her the job on trial for a period of two months, and would pay her $50 per week, and that if their mother didn't get along, or that claimant was not up to the job, he would "do otherwise".

After Leo and claimant returned from the store, Leo told Rose that he and claimant had talked the situation over and that claimant would start doing the nursing work that their mother required, and would continue to do so as long as claimant could do the work in the manner Leo expected. On January 1, 1955, Leo told claimant that if she was not able to stand up under this work that he would tell her and let her go and bring in somebody else.

Rose and Leo said this discussion took place while Leo and claimant were at the store, and that Leo later informed her of it. Claimant said it took place at home with Rose present. In any event, there is no dispute that a contract was entered into between the brother, Leo, and the claimant to take care of the mother. The brother, Leo, was no part of the family except that the relationship of mother and son and brother and sister existed. He was not living in the home. It is pointed out above that the home was owned by claimant. He lived at Jacksonville, Illinois, where he was engaged in the retail shoe business. The record plainly indicates that he was willing to pay the cost of any nursing services, whether it be rendered by a nurse or any other person, and concluded to hire claimant for that purpose.

Claimant, after her employment, had her bed moved from her room upstairs to her mother's room on the first floor, and thereafter lived in that room until her mother died. Her duties consisted of fixing her mother's heating pad, giving her her medicines on their regular schedule, cooking her food and feeding her, lifting and turning her, changing her bedding several times daily, keeping a chart of her daily temperature, pulse, medicines, doctor's visits, her general condition, giving her massages and rubs day and night. The charts on the mother's condition were not offered in evidence, but as to keeping them, the medical doctor, Leon Lando, substantiated the fact that they were kept.

Prior to this time claimant's activities were confined to taking care of the house and involved little or no nursing services to her mother. When such services were necessary prior to this time, outside nurses were brought in. After undertaking the care of her mother, claimant no longer did any of the household work. Leo told her that he didn't care about the household work; that he wanted the mother taken care of and that claimant was to do anything and everything that could be done for their mother, and that claimant was to obey the doctor's orders and carry out his recommendations, and was to notify Leo immediately if there was any change in the mother's condition.

According to the doctor and her mother, claimant was giving better service and attention than had any of the nurses who had been brought in before to care for the mother. Claimant was on the job 24 hours a day, and seldom left the house. During period claimant was recovering from a broken wrist, nurses were brought in to care for her mother. This period was for seven weeks, from March 29, 1955, after which time she resumed her full duties. The record shows that she was paid her salary during this period.

Claimant stated that she felt that she was to take orders from her brother, Leo, and did take orders from him.

For many years prior to 1955, Leo gave his mother from $100 to $200 a year for personal expenses. He also paid his mother's medical and doctor bills. The money he gave to and paid for the benefit of his mother amounted to approximately $300 to $400 per year. Whenever his mother required nurses, Leo paid their wages. He never contributed money to the support of the household, nor did he ever pay any medical expenses of his sisters.

Claimant's starting salary of $50 per week, later raised to $60 per week, was paid quarterly by check from January 1, 1955, until their mother's death in September 1956. This is not disputed, nor is it disputed that the Social Security tax was paid. Prior to 1955 Rose claimed claimant as a dependent, but discontinued doing so in 1955 and thereafter.

Leo had no written contract of employment with claimant, but he did not have written contracts of employment with his employees in his shoe store either.

In a domestic service questionnaire filled out by claimant in October, 1956, claimant answered the question: "Did any one have the right to instruct the wage earner as to how to perform the services", in the negative, and stated she knew what to do. On objection to this question and answer, claimant's attorney stated that he did not believe that claimant knew the difference between receiving instructions and the right to instruct, and that claimant was apparently talking about the latter part of the employment term during which she had become thoroughly familiar with what was expected of her. Counsel also objected to the statement in the questionnaire that claimant did domestic work since she did no domestic work at all after undertaking the constant care of her mother. This objection was overruled. Irrespective of whether or not this action was proper, the fact remains that no domestic work was performed by claimant after she undertook the employment of nursing and caring for her mother, and the further fact, under this record, in reference to the answer to the question in the manner in which it was answered, is that the answer in no wise can be construed as implying that Leo ever forgave his right to instruct. This record shows that he carefully checked many times to see that claimant did the job. He did this by personal inspection of his mother's bedding, checking the charts, and verifying with the doctor and his sister, Rose, the fact that claimant at all times performed the services. See Record pages 40, 41, 42, 43, 44, 45, 50, 69, 71, 79, 80, 81, 91, 92, 96, 98, 99, 100, 102, 103, 105.

The Referee stated the following:

    "At the hearing Claimant objected to the
  introduction in evidence of Exhibit 7 `Domestic
  Service Questionnaire' signed by James Leo O'Brien,
  October 24, 1956. Said Exhibit is received in
  evidence and is considered ...

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