SSR 66-16c: SECTION 202(i). -- LUMP-SUM DEATH PAYMENT -- "LIVING IN THE SAME HOUSEHOLD"

20 CFR 404.1112

SSR 66-16c

SILVERMAN v. CELEBREZZE , U.S.D.C., S.D. N.Y., 63 CIV. 975

(8/3/65)

CANNELIA, J., District Judge:

* * * * * * *

The plaintiff * * * instituted this action in accordance with the

provisions of 42 U.S.C.A. § 405(g). She seeks reversal of that part of the

administrative decision below disallowing her claim for the lump sum

benefit applied for as widow of a deceased wage earner under 42 U.S.C.A. §

402(i). Plaintiff had filed the § 402(i) application following the death

of her husband on October 10,

1660. [1] On December 13, 1960,

plaintiff was awarded the lump sum death benefit in the amount of

$201.00. [2]

Subsequently, * * * the deceased wage earner's son by a previous

marriage, filed a similar application for the lump sum death benefit

asserting a right as a person equitably entitled under the statute.

Following the receipt of the application with supporting evidence, the

Social Security Administration altered its original decision. It

determined that [the son] was entitled to the payment and on September 6,

1961, awarded him the amount of $160.29.

Having been notified of the decision to award the sum to her stepson and

deduct the prior payment made to her form future benefits which she would

receive, the plaintiff, on August 22, 1961 requested a hearing before the

Social Security Administration. * * *

The hearing examiner found that the plaintiff was not a widow of the wage

earner living in the same household with him at the time of his death

within the meaning of § 402(i). In addition, he held that she was not a

person equitably entitled to the benefits, either in her individual or

representative capacity as administratrix of her late husband's estate.

The examiner held that [the son] was barred from the award since he had

paid part of the funeral expenses while under a contractual obligation to

do so. 20 C.F.R. § 404.340(b)(2).

in the meaning of § 402(i). In addition, he held that she was not a

person equitably entitled to the benefits, either in her individual or

representative capacity as administratrix of her late husband's estate.

The examiner held that [the son] was barred from the award since he had

paid part of the funeral expenses while under a contractual obligation to

do so. 20 C.F.R. § 404.340(b)(2).

On review by the Appeals Council of the Social Security Administration,

the hearing examiner's decision as to both parties was reversed in part.

As far as the plaintiff was concerned, the Appeals Council affirmed that

part of the decision holding that she was not a widow entitled to an award

under § 402(i), i.e., she was not living in the same household with the

decedent at the time of his death. They held, however, that a payment of

$75.00, made toward the funeral expenses by a fraternal order, was a

payment made by the estate. The plaintiff, in her capacity as

administratrix of the estate, was thus awarded $75.00. The Council also

held that 20 C.F.R. § 404.340(b)(2) was not intended to foreclose recovery

by someone in [the son's] position and decided he too was entitled to an

award. The maximum benefit of $201.00 was thus divided between the

plaintiff, as administratrix, and her stepson. The decision of the Appeals

Council constituted a final decision of the Secretary subject to review in

this court pursuant to 42 U.S.C.A. § 405(g)

. § 404.340(b)(2) was not intended to foreclose recovery

by someone in [the son's] position and decided he too was entitled to an

award. The maximum benefit of $201.00 was thus divided between the

plaintiff, as administratrix, and her stepson. The decision of the Appeals

Council constituted a final decision of the Secretary subject to review in

this court pursuant to 42 U.S.C.A. § 405(g)

The findings of fact made by the Secretary are conclusive, if supported

by substantial evidence, and are binding on this court's review of the

administrative decision. 42 U.S.C.A. § 405(g); Shapiro v. Ribicoff, 316

F.2d 262, 264 (2d Cir. 1964); * * *. The plaintiff has challenged two

ultimate conclusions on the ground that they are not supported by

substantial evidence. The Secretary concluded that the plaintiff's claim

as a widow was not proper under § 402(i) and in addition held that the

plaintiff was not equitably entitled to payment beyond the $75.00 awarded.

This court must therefore screen the record to determine if the

conclusions reached, in light of the statutory language, are supported by

substantial evidence. The quest must of necessity begin with discovery of

the applicable rules of law.

Initially the discussion must concern the plaintiff's claim as widow, for

if the Secretary's conclusion cannot be upheld, the question of whether

anyone is "equitably entitled" to the benefits would become moot. See 42

U.S.C.A. § 402(i). Prior to the adoption of the Social Security Amendments

of 1958, Section 402(i) provided that a widow was entitled to the lump sum

death payment if she was ". . . living with the deceased at the time of

death." To implement and clarify this section, § 416(h)(3) set forth the

definition to be applied to determine if the widow was "living with" her

spouse at time of death. It presented an alternate, three-fold approach

ocial Security Amendments

of 1958, Section 402(i) provided that a widow was entitled to the lump sum

death payment if she was ". . . living with the deceased at the time of

death." To implement and clarify this section, § 416(h)(3) set forth the

definition to be applied to determine if the widow was "living with" her

spouse at time of death. It presented an alternate, three-fold approach. A

widow was "living with" her spouse if they were both members of the same

household, or if she was receiving support from him or if he had been

ordered by a court to contribute to her support. * * *.

The 1958 amendment repealed § 416(h)(3) (see Pub.L. 85-840, § 305(b);

1958 U.S. Cong. & Ad. News at pg. 1214) and later the corresponding

regulation, 20 C.F.R. § 1111, was deleted. 27 F.R. 10679 (November 2,

1962). In addition, § 402(i) was amended by the insertion of the words,

"in the same household" after "living" in line six of the section. The

question which must obviously be answered is whether the amendments to the

statute worked any substantive change in the law. In this context, the

legislative history is quite enlightening. The summary of provisions of

the 1958 bill (1958 U.S. Cong. & Ad. News at pg. 4224) states that

"[A] lump sum would be paid to the widow of a deceased worker only if she

was living in the same household with him or has paid his burial expenses"

(Emphasis supplied). An explanation of then applicable law and the changes

which would be made by the amendment can be found further on in Senate

Report at 1958 U.S. Cong. & Ad. News at pg. 4238, where the following

statement is made:

that

"[A] lump sum would be paid to the widow of a deceased worker only if she

was living in the same household with him or has paid his burial expenses"

(Emphasis supplied). An explanation of then applicable law and the changes

which would be made by the amendment can be found further on in Senate

Report at 1958 U.S. Cong. & Ad. News at pg. 4238, where the following

statement is made:

Congress obviously intended a change in the standard to be applied on

application of a widow for the lump sum death payment. The precise inquiry

must be thus directed to whether the plaintiff was "living in the same

household" with her husband at the time of his death. 20 C.F.R. §

404.1112(a) contains the regulation defining the concept of "living in the

same household." It provides that:

The evidence adduced before the Secretary is clearly substantial to

support the conclusion that the plaintiff and her husband had not

"customarily lived together as husband and wife in the same place of

abode", viewed as of the time of death. The record abounds with reference

to the various dwellings in which the plaintiff and the decedent resided,

for the most part separated from each other, prior to the summer of 1960.

It is undisputed that the husband died in a nursing home and had been

living apart from the plaintiff for a period of time before his demise.

The plaintiff places reliance on 20 C.F.R. § 404.1112(b)(2) and argues

that the confinement of the decedent in the nursing home was a temporary

absence within the meaning of the regulations. But reliance is valid only

if the separation of the couple was necessitated by decent's illness, not

if the evidence relative to this point indicates a general inharmonious

relationship manifested by a willing severance of the marital abode

. § 404.1112(b)(2) and argues

that the confinement of the decedent in the nursing home was a temporary

absence within the meaning of the regulations. But reliance is valid only

if the separation of the couple was necessitated by decent's illness, not

if the evidence relative to this point indicates a general inharmonious

relationship manifested by a willing severance of the marital abode. The

evidence before the administrative agency, viewed in light of the

substantial evidence test, is perfectly adequate to support a conclusion

that the decedent's convalescence in the nursing home was not the prime

reason for the divided marital abode. It is clear, in addition, that the

Secretary chose to disregard the plaintiff's claim that when the decedent

recovered, he would return to the marital abode, a conclusion the

Secretary was entitled to make. * * *. Insofar as this first point is

concerned, there is substantial evidence in the record to support the

conclusion that the plaintiff was not a widow "living in the same

household" at the time of the decedent's death.

The court now reaches the plaintiff's alternate contention that even if

she is held not to occupy the status of an entitled widow, she is

equitably entitled to the benefit within the meaning of § 402(i). The

initial point to reference must concern the payor of the expenses and the

plaintiff's capacity in bringing the § 405(g) action. Considering the

latter, plaintiff has brought suit in this court in her individual

capacity and cannot be heard to assert claims she could allege as

administratrix of the estate. In addition, the expenses were paid by [the

son] out of the proceeds of the bank account awarded to him by the

stipulation made in the Surrogate's Court. The account appears clearly to

have been a Totten Trust, the proceeds of which vested in [the son] upon

the death of his father. See Matter of Totten, 179 N.Y. (1904)

rd to assert claims she could allege as

administratrix of the estate. In addition, the expenses were paid by [the

son] out of the proceeds of the bank account awarded to him by the

stipulation made in the Surrogate's Court. The account appears clearly to

have been a Totten Trust, the proceeds of which vested in [the son] upon

the death of his father. See Matter of Totten, 179 N.Y. (1904). The

expenses were thus not paid out of estate funds and the plaintiff is not

entitled to the lump sum benefit even could she claim as

administratrix.

Plaintiff's motion for summary judgment is denied. The defendant's motion

for judgment on the pleadings, treated as one for summary judgement, is

granted.

[1] The application was filed on

November 11, 1960.

[2] The maximum amount of the

benefit is determined by taking an amount equal to three times the

decedent's primary insurance amount or $255 whichever is smaller. 42

U.S.C.A. § 402(i).

[3] 20 C.F.R. § 404.1112(b)

delineates the events constituting temporary absence and (c) notes the

effect of any other absence on fulfillment of the statutory condition.