Howard W. Heard v. Secretary of Health, Education and Welfare

Fifth Circuit

Howard W. Heard v. Secretary of Health, Education and Welfare

439 F.2d 697, 1971 U.S. App. LEXIS 11513

CourtCourt of Appeals for the Fifth Circuit

DecidedMarch 5, 1971

Docket30212

StatusPublished

This text of 439 F.2d 697 (Howard W. Heard v. Secretary of Health, Education and Welfare) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Howard W. Heard v. Secretary of Health, Education and Welfare, 439 F.2d 697, 1971 U.S. App. LEXIS 11513 (5th Cir. 1971).

Pincite

Opinion

PER CURIAM:

This case involves the standard of review by a district court of a determination of fact by the Secretary bearing on the entitlement of a covered person of 65 years of age to old age social security benefits. It is plain on the record here that there was substantial evidence to support the Secretary’s findings that the retiree’s income from salary and self employment equalled the salary paid to him by his corporation, set up to take over his sole proprietorship at age 65, the salary paid to his wife who did no substantial work, plus the profits remaining in the corporation at the end of the accounting period.

The trial court erred in making findings of fact 1 in conflict with findings by the Secretary thus substantially supported on the record as a whole. See Brown v. Finch, 5 Cir., dec. July 2, 1970, 429 F.2d 80; Knox v. Finch, 5 Cir., dec. June 12, 1970, 427 F.2d 919.

The judgment is reversed and the ease is remanded to the trial court for entry of judgment for the Secretary.

1

. The trial court found that the retiree, after incorporation, performed “markedly restricted services,” whereas the Secretary found as a fact that “claimant’s work activities in the store are substantially the same since incorporation as they were prior thereto. * * * ”

It is not disputed that the volume of business and sales were also substantially the same after incorporation.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM:

This case involves the standard of review by a district court of a determination of fact by the Secretary bearing on the entitlement of a covered person of 65 years of age to old age social security benefits. It is plain on the record here that there was substantial evidence to support the Secretary’s findings that the retiree’s income from salary and self employment equalled the salary paid to him by his corporation, set up to take over his sole proprietorship at age 65, the salary paid to his wife who did no substantial work, plus the profits remaining in the corporation at the end of the accounting period.

The trial court erred in making findings of fact 1 in conflict with findings by the Secretary thus substantially supported on the record as a whole. See Brown v. Finch, 5 Cir., dec. July 2, 1970, 429 F.2d 80; Knox v. Finch, 5 Cir., dec. June 12, 1970, 427 F.2d 919.

The judgment is reversed and the ease is remanded to the trial court for entry of judgment for the Secretary.

1

. The trial court found that the retiree, after incorporation, performed “markedly restricted services,” whereas the Secretary found as a fact that “claimant’s work activities in the store are substantially the same since incorporation as they were prior thereto. * * * ”

It is not disputed that the volume of business and sales were also substantially the same after incorporation.

Cite This Page — Counsel Stack

Bluebook (online)

439 F.2d 697, 1971 U.S. App. LEXIS 11513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-w-heard-v-secretary-of-health-education-and-welfare-ca5-1971.

Opinion

Related

Cite This Page — Counsel Stack