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MILLER v. RICHARDSON

October 28, 1971

Jerome J. MILLER, Plaintiff,
v.
Elliott L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant


Gurfein, District Judge.


The opinion of the court was delivered by: GURFEIN

GURFEIN, District Judge.

This action was brought to recover old age insurance benefit payments under § 202(a) of the Social Security Act, 42 U.S.C. § 402(a) (1970). The plaintiff applied for benefits under the Act, and although he was found qualified to receive such benefits, deductions were taken for those months in which the plaintiff's hours of work exceeded limits prescribed by the regulations. The plaintiff's request for reconsideration of that determination resulted in further deductions based upon plaintiff's hours of work.

 At the plaintiff's request a hearing was held at which the hearing examiner heard testimony and examined documentary evidence pertaining to the plaintiff's claim. The hearing examiner decided that deductions were properly imposed against the plaintiff's old age insurance benefits for the months in question and that recovery of overpayments to the plaintiff could not be waived. The plaintiff's request for review to the Appeals Council of the Social Security Administration was denied on February 4, 1969. Thus having exhausted his administrative remedies, the plaintiff properly brought an action in this Court. *fn1" 42 U.S.C. § 405(g). Both the defendant and the plaintiff move for judgment on the pleadings and on the transcript of the record.

 The Act provides for deductions to be made from old age benefit payments on the basis of an individual's self-employment income, 42 U.S.C. § 403(b), except for any month "in which such individual did not engage in self-employment" 42 U.S.C. § 403(f)(1) (Supp. II, 1965-66) as amended, 42 U.S.C. § 403(f)(1) (1970). An individual is presumed to be engaged in self-employment until he shows that he rendered no "substantial services" in the months in question § 403(f)(4)(A). Regulations issued pursuant to 42 U.S.C. § 403(f)(4) define "substantial services" 20 C.F.R. §§ 404.446, 404.447.

 The hearing examiner found that the plaintiff rendered substantial services during the months in question and that he was, therefore, liable for certain deductions. There is no dispute over the facts. The central issue is whether certain of the plaintiff's activities were related to his dental practice for purposes of determining whether the plaintiff rendered substantial services in those months.

 The amount of time devoted to the trade or business is the first factor to be considered. 20 C.F.R. § 404.447(a). When an individual devotes more than 45 hours per month to his trade or business,

 
"the individual's services are substantial unless it is established that the individual could reasonably be considered retired in the month and, therefore, that such services were not, in fact, substantial." 20 C.F.R. § 404.447(a)(2).

 The following facts were developed by the hearing testimony and the documents:

 1. The plaintiff's office, which is located at his home, was open two and one-half days per week during the contested months for a total of 17 1/2 hours per week.

 2. The plaintiff employed a dental assistant during those hours who received telephone calls and made appointments, assisted the plaintiff at the chair, maintained patients' records and was responsible for billing in addition to duties such as pouring molds or models.

 3. Between appointments the plaintiff could not leave his home for any extended period because he had to be available for other scheduled appointments.

 4. The plaintiff was a member of a Dental Study Club which met nine months out of the year, each session lasting from three to three and one-half hours including travel time.

 5. On his tax returns the plaintiff listed as expenditures incurred in connection with "good will and entertainment" certain cocktail parties and dinners attended by patients and others.

 These facts were cited by the hearing examiner as support for his conclusion that the plaintiff devoted himself to his practice in excess of 45 hours per month. Such a conclusion is based on substantial evidence. 42 U.S.C. § 405(g); Isham v. U.S. and ...


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