AR 86-2R(2): Rosenberg v. Richardson , 538 F.2d 487 (2d Cir. 1976); Capitano v. Secretary of HHS , 732 F.2d 1066 (2d Cir. 1984) -- Entitlement of a Deemed Widow When a Legal Widow is Entitled on the Same Earnings Record -- Title II of the Social Security Act.

AR 86-2R(2)

EFFECTIVE/PUBLICATION DATE: 06/25/92

ACQUIESCENCE RULING

86-2R(2) [1]

ISSUE:

Whether a "deemed widow" may be found entitled to Title II survivor Social

Security benefits when a legal widow is entitled to Title II benefits on

the same deceased person's Social Security earnings record and, if so,

what is the appropriate amount of the "deemed widow's"

benefits? [2]

STATUTE/REGULATION/RULING CITATION:

Section 216(h)(1)(B) of the Social Security Act (42 U.S.C. 416(h)(1)(B)),

as in effect prior to enactment of Public Law 101-508; 20 CFR 404.346(b); SSR 80-9c

CIRCUIT:

Second (Connecticut, New York, Vermont)

Rosenberg v. Richardson , 538 F.2d 487 (2d Cir. 1976); Capitano

v. Secretary of HHS , 732 F.2d 1066 (2d Cir. 1984).

APPLICABILITY OF RULING:

This ruling applies only to eligibility for benefits payable for months

prior to January 1991 for determinations or decisions at all

administrative levels (i.e., initial, reconsideration, administrative law

judge hearing and Appeals

Council). [3] To the extent

inconsistent therewith, this Ruling supersedes SSR 80-9c in cases in

which the deemed widow resides in the Second Circuit only.

DESCRIPTION OF CASE:

ROSENBERG

Max Rosenberg, an insured worker, married Celia in 1920 in New York City.

Thirteen years later he obtained a Mexican divorce by mail. Two years

after obtaining this divorce, Max and Frieda were ceremonially married in

Connecticut. The parties believed they were validly married and lived

together until Mr. Rosenberg's death in April 1971. Frieda was awarded

benefits as the wife of Max Rosenberg, and as his widow beginning with the

month of his death.

rk City.

Thirteen years later he obtained a Mexican divorce by mail. Two years

after obtaining this divorce, Max and Frieda were ceremonially married in

Connecticut. The parties believed they were validly married and lived

together until Mr. Rosenberg's death in April 1971. Frieda was awarded

benefits as the wife of Max Rosenberg, and as his widow beginning with the

month of his death.

Celia later applied for benefits as the widow of Max Rosenberg. In

December 1971, the Social Security Administration (SSA) decided that the

Mexican divorce obtained by Max Rosenberg was invalid and had not

terminated his first marriage. Thus, Celia was determined to be Max's

legal widow. Widow's benefits were therefore entitled to Celia in December

1971. However, pursuant to section 202(k)(3)(A) of the Social Security

Act, 42 U.S.C. 402(k)(3)(A), Celia's widow's benefits were reduced by the

amount of the old age benefit to which she was simultaneously entitled.

SSA determined that, due to Celia's entitlement as the legal widow, Frieda

Rosenberg was not entitled to widow's benefits after November 1, 1971. The

decision that Frieda Rosenberg's benefits were to be terminated was

appealed. The Secretary's decision was sustained by the United States

District Court for the Eastern District of New York and Frieda appealed to

the Court of Appeals for the Second Circuit. The United States Court of

Appeals for the Second Circuit heard the appeal and reversed the District

Court.

CAPITANO

Sam Capitano, an insured worker, married Betty in 1931. Although Sam

filed for divorce in 1945, no legal divorce decree was issued. In 1951,

Sam married Sarah, with whom he lived until his death in 1970. Sarah

applied for and received (deemed) widow's benefits as the widow of Sam

Capitano. Her benefits began in July 1975. In 1977, Betty applied for

retirement benefits on her own Social Security earnings record and for

widow's benefits on Sam's earnings record.

for divorce in 1945, no legal divorce decree was issued. In 1951,

Sam married Sarah, with whom he lived until his death in 1970. Sarah

applied for and received (deemed) widow's benefits as the widow of Sam

Capitano. Her benefits began in July 1975. In 1977, Betty applied for

retirement benefits on her own Social Security earnings record and for

widow's benefits on Sam's earnings record.

When Betty was awarded widow's benefits on Sam's earnings record, Sarah's

benefits were stopped due to Betty's entitlement as the legal widow. Sarah

exhausted her administrative remedies and then filed a civil action. The

United States District Court for the Eastern District of New York upheld

the Secretary's decision and Sarah appealed to the Court of Appeals for

the Second Circuit. The United States Court of Appeals for the Second

Circuit heard the appeal and reversed the District Court.

HOLDING:

ROSENBERG

The court held that the provision of section 216(h)(1)(B) which requires

terminating the benefits of a deemed widow if a legal widow is entitled,

applied only where the legal widow could receive a "full" widow's benefit.

In the instant case, the court ruled that since the legal widow was

entitled to a Social Security benefit based upon her own earnings and

would receive a widow's benefit of only $1.40 (the excess of her widow's

benefit over her own benefit), the widow's benefit to Frieda should not

have been terminated. Instead the court ordered the payment of a benefit

to Frieda, the deemed widow, in an amount equal to the difference between

the "full" widow's benefit and the additional amount to which Celia became

entitled by virtue of being found to be the legal widow.

CAPITANO

40 (the excess of her widow's

benefit over her own benefit), the widow's benefit to Frieda should not

have been terminated. Instead the court ordered the payment of a benefit

to Frieda, the deemed widow, in an amount equal to the difference between

the "full" widow's benefit and the additional amount to which Celia became

entitled by virtue of being found to be the legal widow.

CAPITANO

Reaffirming its prior decision in Rosenberg , the court held that

termination of the deemed widow's benefit is appropriate only when the

legal widow is or has been entitled to a "full benefit." In the instant

case, the excess of Betty's widow's benefit over her own old age benefit

was estimated to be $17.40; the "full" widow's benefit was $362.00. Thus

Sarah, the deemed widow, was found entitled to the difference between the

$17.40 and $362.40.

STATEMENT AS TO HOW ROSENBERG/CAPITANO DIFFER FROM SOCIAL

SECURITY POLICY:

Prior to enactment of section 5119 of Public Law 101-508, section

216(h)(1)(B) of the Social Security Act (42 U.S.C. 416(h)(1)(B)), 20 CFR

404.346(b), and SSR

80-9c had been interpreted by SSA to mean that an applicant's

entitlement to title II survivor benefits as the "deemed" widow (based

upon a "good faith marriage") of a deceased wage earner will end the month

before the month another person is determined to be the legal widow, if

such legal widow is entitled to title II widow's benefits based upon the

earnings record of the deceased wage earner.

ad been interpreted by SSA to mean that an applicant's

entitlement to title II survivor benefits as the "deemed" widow (based

upon a "good faith marriage") of a deceased wage earner will end the month

before the month another person is determined to be the legal widow, if

such legal widow is entitled to title II widow's benefits based upon the

earnings record of the deceased wage earner.

The decisions by the U.S. Court of Appeals for the Second Circuit in Rosenberg and Capitano hold that a deemed widow (based upon

a good faith marriage to a deceased wage earner) can continue to receive a

title II widow's benefit even if another individual is determined to be

entitled to receive a widow's benefit as the legal widow of the same wage

earner, provided that the legal widow receives less than the full widow's

benefit based upon the given wage record. The deemed widow would be

entitled to a benefit equal to the difference between the full widow's

benefit and the amount actually received by the legal widow.

EXPLANATION OF HOW SSA WILL APPLY THE DECISION WITHIN THE CIRCUIT:

This ruling applies only to entitlement to benefits payable for months

prior to January 1991 in cases where the deemed widow resides in

Connecticut, New York, or Vermont at the time of the determination or

decision at any administrative level, i.e., initial, reconsideration,

administrative law judge hearing or Appeals Council.

When a case involves a legal widow and a deemed widow as defined in 20

CFR 404.345 and 404.346(a), both have filed widow's claims on the same

worker's earnings record, and the legal widow is found entitled to receive

less than a "full" widow's benefit, for whatever reason, the difference

between the benefit amount the legal widow is entitled to receive and the

amount of the full benefit will be paid to the deemed widow, subject to

any reductions applicable to the deemed

widow. [4]

, both have filed widow's claims on the same

worker's earnings record, and the legal widow is found entitled to receive

less than a "full" widow's benefit, for whatever reason, the difference

between the benefit amount the legal widow is entitled to receive and the

amount of the full benefit will be paid to the deemed widow, subject to

any reductions applicable to the deemed

widow. [4]

[1] The original Acquiescence

Ruling for the Second Circuit Court of Appeals' holdings in Rosenberg and Capitano , issued January 23, 1986, is

rescinded and replaced by this revised Acquiescence Ruling to reflect the

enactment of section 5119 of Public Law 101-508. Section 5119 of Public

Law 101-508 authorizes the payment of benefits to both a legal "spouse"

and a deemed "spouse," where "spouse" is defined as a wife, divorced wife,

widow, surviving divorced wife, husband, divorced husband, widower, or

surviving divorced husband. This change is effective with respect to

benefits payable for months after December 1990.

[2] This ruling also applies to

widowers.

[3] If a person is already

entitled to benefits in December 1990 as a spouse, divorced spouse,

widow(er), or surviving divorced spouse, he or she does not have to file

another application in order to establish entitlement under the amended

statute.

[4] As in any case involving

auxiliary benefits the time period applicable to this ruling, the family

maximum cannot be exceeded.