SSR 70-23c: SECTION 228(c). -- SPECIAL AGE 72 PAYMENTS -- EFFECT ON CLAIMANT'S ELIGIBILITY WHERE APPLICATION NOT FILED BY SPOUSE WHO IS ELIGIBLE FOR PERIODIC BENEFIT UNDER GOVERNMENTAL PENSION SYSTEM

20 CFR 404.377

SSR 70-23c

Sterner v. Finch, U.S.D.C., E.D. Pa., Civ. No. 69-403 (11/5/69) (CCH U.I.R. Fed. Par. 15,628)

The claimant and her husband had been separated for 45 years. During this period, neither spouse had obtained a divorce, there were no contributions toward support and no contact between them. The claimant filed application for special age 72 payments under section 228 of the Social Security Act (42 U.S.C. 428).
Under the Act, any monthly amounts thus payable must be reduced to the extent that the claimant, or the spouse of the claimant, is actually receiving, or is eligible to receive, periodic benefits under any governmental pension system. The husband, although eligible for monthly benefits under section 202 of the Act in an amount in excess of the special age 72 payments, had not yet made application for such benefits. Held, the continued existence of the claimant's marriage, and the husband's eligibility for benefits, combine to bar the payments sought by the claimant.

FULLAM, District Judge: The 1966 amendments to the Social Security Laws made special provision for persons over 72 years of age, enabling them to obtain a monthly benefit of $35.00 (now $40.00) * * *[1] 42 U.S.C. § 428. However, the monthly benefits thus payable must be reduced to the extent that the applicant, or the spouse of the applicant, is actually receiving, or is eligible to receive, benefits under any other provision of the law. 42 U.S.C. § 428(c). The plaintiff who is otherwise eligible for the special benefits provided for 72-year olds, was denied payment because her husband is eligible to receive Social Security benefits under section 402. The decision of the examiner to that effect was upheld by the Appeals Council, and plaintiff has brought this action to review that decision. 42 U.S.C. § 405(g).

Plaintiff's situation is admittedly unusual: She was married in 1924, but never lived with her husband and has never been supported by him. She has not seen her husband since 1924. However, the husband is alive, a resident of California. He is eligible for benefits under section 402, and will soon be eligible for benefits under section 428, although he has not yet made any application for benefits.

* * * * * * *

The record as a whole amply justifies the tacit finding by the Examiner, affirmed by the Appeals Council, that the plaintiff is still married to Mr. Sterner. This question is to be decided by reference to the law of the domicile of the insured party, here Mr. Sterner. 42 U.S.C. §§ 428(h)(4), 416(h)(1)(A). Plaintiff testified that she had never received any divorce papers from her husband. Indeed, in her application for benefits, she states that she is married. And there is other evidence in the record to the same effect * * * It has not been suggested that California would refuse to recognize the plaintiff as Mr. Sterner's legal wife. Cf. Whealton v. Whealton, 63 Cal. Rptr. 291 (1967); Sohnlein v. Winchell, 41 Cal. Rptr. 145 (1964). The continued existence of this marriage, and the husband's eligibility for benefits, combine to bar the payments plaintiff now seeks.

It is argued by the plaintiff that such interpretation of the statute does violence to the long-standing policy of both Federal and State governments that the preservation of a family unit is to be encouraged, rather than discouraged. While it may be doubted that there is any strong public policy for the preservation of a marriage in which the parties never lived together and have not been in communication with each other for 45 years, I shall assume the basic validity of plaintiff's premise. But I am not persuaded that the statute, as here applied, would tend to promote disruption of the family unit. * * *

Plaintiff's further argument that she should be permitted to elect to receive section 428 benefits, in lieu of her possible benefits under sections 402(b) or 402(e) is an appealing one, but should be addressed to the legislative branch. Unfortunately for the plaintiff, there is no such provision in the statute.

AND NOW, this 5th day of November, 1969, it is ORDERED that the defendant's motion for summary judgment is GRANTED and the plaintiff's motion for summary judgment is DENIED.


[1] Section 1003(b) and (c) of the Social Security Amendments of 1969 increased the monthly amount to $46 for payments for and after January 1970. [Ed.]


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