20 CFR 404.334(a) and 404.350(b)
Where a disability insurance beneficiary received public welfare funds, beginning prior to her entitlement to disability and continuing until death, and, without any imposed restrictions, used these funds to support herself and her husband, who had no separate income, held, (1) when no restrictions are imposed, public assistance funds are the income of the qualified recipient even though the needs of others are taken into account in determining the amount paid the recipient; and (2) since husband was receiving at least one-half his support from recipient at time of her death and was otherwise eligible for benefits, he is entitled to widower's insurance benefits.
R, the worker, became entitled to disability insurance benefits beginning May 1960 based on a period of disability beginning September 30, 1951. After R's death on June 20, 1970, her husband, W, born October 16, 1908, filed applications for widower's insurance benefits, for the lump-sum death payment, and for retirement insurance benefits, the latter under his own social security number.
R had suffered from multiple sclerosis and in 1957 W stopped working to remain at home to care for her and did not work thereafter. According to his certificate of support, the only family income in the year before R's death was her disability insurance benefit of $1,295.70 (total) and her monthly welfare check of $80.
In a letter of September 25, 1070, the State Department of Public Welfare reported that:
. . . the above named man has been taking care of his disabled wife . . . since 1957. They applied for assistance under the Disability Assistance program [title XIV] 8/19/58 and she was approved for this assistance. His needs totaling $50.60 were added to her needs of $57.52 and she was granted this amount under our Disability Assistance program . . . and his needs were always included in her grant.
Again in a letter of March 29, 1971, the Department of Public Welfare stated:
Mrs. [R] received Disability Assistance from this department from 8/19/58 to the time of her death 6/20/70. Her grant at the time of her death was $91.80 per month from this department and $116.90 per month from Social Security. Mr. [W] never at any time received direct assistance from this department, but included in his wife's check was an amount for her to supply his needs in the home.
In determining whether W is entitled to widower's insurance benefits, the specific issue is whether he was receiving at least one-half of his support from his wife at any of the times designated in section 202(f)(1)(D) of the Social Security Act. The resolution of this issue depends upon whether public welfare funds received by the worker, R, each month and used to support herself and W were her own property or whether they were, in part, W's property.
Section 202(f)(1) of the Act provides, in pertinent part (in addition to requirements not in issue here), as follows:
The widower (as defined in section 216(g)) of an individual who died a fully insured individual, if such widower—
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(D)(i) was receiving at least one-half of his support, as determined in accordance with regulations prescribed by the Secretary, from such individual at the time of her death or, if such individual has a period of disability which did not end prior to the month in which she died, at the time such period began or at the time of her death, and filed proof of such support within two years after the date of such death . . . or (ii) was receiving at least one-half of such support . . . from such individual at the time she became entitled to old-age or disability insurance benefits . . . (E) . . . shall be entitled to a widower's insurance benefit . . . * *.
Section 404.334(a) of Regulations No. 4 of the Social Security Administration provides, as pertinent here, that where the deceased woman on whose earnings widower's insurance benefits are claimed had a period of disability established and such period of disability did not end before the month in which she became entitled to disability insurance benefits, or died, the support requirement may be met either:
(1) at the beginning of such period of disability; or
(2) at the time she became entitled to disability insurance benefits, providing that the deceased was then currently insured; or
(3) at the time of her death.
Section 404.350(b) of the regulations provides, as pertinent here, that a person is receiving at least one-half of his support from the insured individual at a specified time if such individual, for a reasonable period (ordinarily 12 months) before the specified time, made regular contributions, in cash or kind, to such person's support and the amount of such contributions, equalled or exceeded one-half of such person's support during this period. Section 404.350(d) of the regulations defines "contributions" as meaning contributions actually provided by the contributor from his own property, or the use thereof, or by the use of his own credit.
The policy of the Social Security Administration in regard to contributions from a worker's welfare payments has been to consider payments related to one of the public assistance titles of the Social Security Act (e.g., old-age assistance under title I and aid to the permanently and totally disabled under title XIV) as the funds of the recipient because such assistance is paid without any restrictions whatever upon its use by the recipient, even though another person's "needs" may have been ascertained to compute the monetary amount to pay the recipient each month. This policy dates from the Commissioner's Action Minutes of July 11, 1960, and reads as follows:
The Commissioner concurred in the Bureau's recommendation and directed that public assistance in the form of money payments shall upon receipt be considered the funds of the recipient for purposes of the dependency provisions of the OASI in the same manner as his wages or other income. Under this approach, such assistance to a recipient . . . which is used for the support of another person will be considered a contribution by such recipient toward the support of such other person for OASI purposes. The same approach is also to be applied to other public welfare payments if such payments are made without any restriction as to their use. The term 'recipient' means the individual who qualified for an award of assistance . . . This rule will be applied to all future cases involving assistance payment . . .
It is clear from the preceding facts that the worker was the recipient of State payments involving federal financial participation under title XIV of the Social Security Act which provides grants to States for Aid to the Permanently and Totally Disabled. It follows, pursuant to Administration policy, that all payments made to the worker by the State Department of Public Welfare from 1958 until her death were income to her, and that no part thereof was income to W. In view of this, it is evident that in the year before R's death her total income was $2,504.40, all of which was used to support herself and W. W had no income during this period.
Accordingly, the Appeals Council held that W was receiving at least one-half of his support from the worker at the time of her death and is entitled to widower's insurance benefits inasmuch as the amount of such benefit exceeds the amount of his own retirement insurance benefit.
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