20 CFR 404.408a
The issue before the Appeals Council is whether the Wife's Insurance Benefits payable to the claimant as a divorced wife are subject to reduction because of her receipt of a State government pension.
The claimant, who was born on September 4, 1909, filed an application for Wife's Insurance Benefits as the divorced wife of the wage earner on November 2, 1979. She was married to the wage earner on June 18, 1931 and was divorced from him on January 10, 1950. Because the claimant was married to the wage earner for less than 20 years, she did not meet the duration of marriage requirement under section 216(d)(1) of the Act until that section was amended by section 337(a) of Public Law 95-216 to require only a 10-year duration of marriage to meet the definition of a "divorced wife." The claimant was therefore found entitled beginning January 1979, the first month in which the amendment became effective.
The claimant receives a monthly State government pension of $127.53. On the last day of her employment for the State, her services did not constitute "employment" as defined in section 210 of the Act. This means that her services for the State were not covered for Social Security purposes.
It was determined initially and upon reconsideration that the claimant's State pension caused a dollar for dollar reduction in the amount of the Wife's Insurance Benefit payable to her as a divorced wife. The administrative law judge found, however, that the claimant's benefits were not subject to government pension offset because she was receiving her State pension in 1978.
Section 202(b)(1) of the Act provides, as pertinent herein, that a divorced wife, as defined in section 216(d)(1), of an individual entitled to Old-Age Insurance Benefits is entitled to Wife's Insurance Benefits if certain requirements are met.
Section 202(b)(4) of the Act, added by section 334(a)(2) of Public Law 95-216, provides that "the amount of a wife's insurance benefit for each month . . . shall be reduced . . . by an amount equal to the amount of any monthly periodic benefit payable to such wife (or divorced wife) for such month which is based upon her earnings while in the service of the Federal government or any State (or political subdivision thereof) . . . if, on the last day she was employed by such entity, such service did not constitute 'employment' as defined in section 210."
Section 216(d)(1) of the Act, as in effect prior to January 1979, provided that "the term 'divorced wife' means a woman divorced from an individual, but only if she had been married to such individual for a period of 20 years immediately before the date the divorce became effective."
Section 337(a) of Public Law 95-216 amended section 216(d)(1) by reducing the duration of marriage requirement from 20 years to 10 years effective with respect to benefit payments beginning January 1979.
Section 334(g) of Public Law 95-216 provides that:
In accordance with section 334(g) of Public Law 95-216, the government pension reduction provision of section 202(b)(4) of the Act would not apply to the claimant's Wife's Insurance Benefits if two conditions were met. First, she must become entitled to a government pension within the 5-year period beginning with the month of enactment of Public Law 95-216 (December 1977). Second, at the time of her application, she must have met the requirements of entitlement to Wife's Insurance Benefits under subsection 202(b) of the Act as it was in effect and being administered in January 1977. The claimant meets the first requirement in that a government pension was payable to her within 60 months of December 1977. However, she does not meet the second requirement because she was not married for 20 years, which was required for divorced wife entitlement under section 216(d)(1) of the Act as it was in effect and being administered in January 1977. Consequently, the claimant does not qualify for the exception to the offset provision contained in section 334(g) of Public Law 95-216. Therefore, the Appeals Council found that the Wife's Insurance Benefits payable to her as a divorced wife are subject to government pension reduction.
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