SSR 80-33: SECTIONS 1612(a)(2)(A) and 1631(c) (42 U.S.C.
1382a(a)(2)(A) and 1383(c)) SUPPLEMENTAL SECURITY INCOME -- REOPENING A
DECISION -- RES JUDICATA -- UNEARNED INCOME -- SUPPORT AND MAINTENANCE
20 CFR 416.1125, 416.1405, 416.1410(a), 416.1451(a), 416.1477(b),
(This supersedes SSR 77-30)
The claimant applied for Supplemental Security Income (SSI) benefits in
October 1976. On January 18, 1977, the Social Security Administration
(SSA) determined that the claimant was not disabled and denied his
application. When the claimant filed for SSI benefits again in August
1978, SSA determined that he was disabled and eligible for SSI benefits
effective August 1978. The claimant filed an appeal contending that he
should have been granted SSI benefits based on his first application
because he was as severely impaired at that time as he was when he filed
his second application. The claimant also disagrees with SSA's
determination that his benefits from August 1978 through December 1978
should be reduced by one-third because of his receipt of in-kind support
and maintenance while living in the household of another, during which
time he contributed $60 each month toward the $285 monthly total household
operating expenses. Held, SSA's determination of January 18, 1977
cannot be reopened because the claimant failed to submit any new and
material evidence that relates to his disability on or before that date.
Further held, the claimant failed to pay a pro rata share of the
average monthly total household operating expenses; therefore, his SSI
benefits from August 1978 through December 1978 should be reduced by
one-third because of his receipt of unearned income in the form of in-kind
support and maintenance while residing in the household of another.
The first issue is whether the determination of January 18, 1977 made on
the claimant's prior application has become final and binding. If so, is
there "good cause" under § 416.1479 of Regulations No. 16 to reopen the
On October 13, 1976, the claimant filed an application for SSI benefits
which was denied on January 18, 1977, on the grounds that the claimant's
impairments at that time were slight. The claimant later filed another
application, and SSA determined that he claimant was disabled and eligible
for SSI benefits effective August 1978. The claimant now contends that he
should be given benefits based on the application he filed on October 13,
1976, because his impairments were just as severe at that time as they
were in August 1978.
The second issue is whether the claimant was receiving unearned income in
the form of support and maintenance in kind from August 1978 through
December 1978. The claimant disagrees with the determination that his
benefits for this period should be reduced by one-third due to income in
the form of in-kind support and maintenance as a result of living in the
household of another.
The claimant lives with his brother and parents who own their own home.
The monthly expenses for the household totaled $285. On May 30, 1978, the
claimant reported that he contributed $60 each month toward the household
expenses. On November 30, 1978, his parents verified this information as
being correct. After a dispute arose as to the amount of benefits that the
claimant would receive, the claimant and his parents submitted other
statements indicating that the claimant had been paying $60 each month for
rent and $75 each month for food since December 1, 1977. When questioned
about the discrepancies in his prior statements, the claimant admitted
that he had only been contributing the additional $75 since January
Section 416.1125 of SSA Regulations No. 16 provides:
"§ 416.1125 Unearned income; support and maintenance.
(a) General. Unearned income includes support maintenance
furnished in cash or in kind. . .
(b) One-third reduction for individual living in another person's
household. (1) General. The standard payment amount for an
eligible individual . . . who lives in another person's household and
receives support and maintenance in kind from such person, will be reduced
by one-third in lieu of determining the value of such support and
maintenance as unearned income to the eligible individual . . . The
one-third reduction in the standard payment amount applies regardless of
any payment the individual (or couple) may make toward the support and
maintenance unless, effective October 1976, that payment meets the
requirements of paragraph (b)(3)(iv) of this section . . . .
(3) Not another person's household. An individual is not
considered to be living in another person's household when . . .
(iv) The eligible individual is paying at least a pro rata share of the
average monthly total household operating expenses as described in
paragraph (b)(5) of this section . . . .
(5) Total household operating expense. Total household operating
expenses means the average of total monthly expenditures for food, rent or
mortgage payments, real property taxes, heating fuel, gas, electricity,
water, sewer services and garbage collection services . . . . A pro rata
share of total household operating expenses is determined by dividing the
monthly average of these expenses by the number of persons in the
household regardless of age or individual consumption of any of the items.
Payment of an amount which is within $5 of the monthly pro rata share is
considered to meet the pro rata requirement. . . ."
Section 416.1405 provides:
"§ 416.1405 Effect of initial determination.
The initial determination shall be final and binding upon the party or
parties to such determination unless it is reconsidered . . . it is
revised, or . . ."
Section 416.1410 provides:
§ 416.1410 Time and place of filing request.
(a) Time and place of filing. The request for reconsideration
shall be made in writing and filed at an office of the Social Security
Administration within 60 days from the date of receipt of notice of the
initial determination . . . For purposes of this section, the date of
receipt of notice of the initial determination shall be presumed to be 5
days after the date of such notice, unless there is a reasonable showing
to the contrary . . . ."
Section 416.1451 provides:
§ 416.1451 Dismissal for cause.
The presiding officer may, on his own motion, dismiss a hearing request,
either entirely or as to any stated issue, under any of the following
(a) Res judicata. Where there has been a previous determination or
decision by the Secretary . . . with respect to the rights of the same
party on the same facts pertinent to the same issue or issues which has
become final . . . ."
Section 416.1477 of Regulations No. 16 states:
"§ 416.1477 Reopening initial, revised, or reconsidered
determinations of the Social Security Administration, and decisions or
revised decisions of a presiding officer or the Appeals Council; finality
of determinations and decisions. An initial, revised, or reconsidered
determination of the Social Security Administration or a decision or
revised decision of a presiding officer or of the Appeals Council which is
otherwise final under § 416.1405, § 416.1423, § 416.1458, or § 416.1470
may be reopened . . .
(b) . . . within 2 years from the date of the notice of the initial
determination to the party to such determination, upon a finding of good
cause for reopening such determination or decision . . ."
Thus, a decision may be reopened upon a finding of "good cause."
Section 416.1479(b) refers to "good cause" as follows:
"§ 416.1479 Good cause for reopening a determination or decision.
`Good cause' . . . shall be deemed to exist where . . . (b) New and
material evidence is furnished after notice to the party to the initial
the claimant has not submitted any new and material evidence that relates
to his disability on or before January 18, 1977 when his initial
application for SSI benefits was denied by SSA. Accordingly, there is no
basis for reopening the determination of January 18, 1977 and the matter
is res judicata. Therefore, the claimant is not eligible for SSI benefits
based on his application filed on October 13, 1976.
This claimant's pro-rata share of the household expenses was $71.25 each
month. Since this claimant was contributing only $60 each month toward the
household expenses, he was receiving support and maintenance in kind
during that period.
Section 416.1125(b)(1) provides for a one-third reduction of benefits for
an individual living in the household of another and receiving support and
maintenance in kind. Therefore, for the months from August 1978 through
December 1978, the claimant's benefits should be reduced by one-third due
to his receipt of unearned income in the form of support and maintenance
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