SSR 79-13c: Section 202(d)(1) and (7) (42 U.S.C. 402(d)(1) and (7)) -- CHILD'S INSURANCE BENEFITS -- FULL-TIME STUDENT -- ENROLLMENT IN CORRESPONDENCE COURSE -- ESTOPPEL

20 CFR 404.320(a)(4)(ii) and (c)(2)

SSR 79-13c

MASON v. CALIFANO, USDC, S.D.FL., Civ. No. 77-196 (4/28/78)

ATKINS, District Judge:

This is a review of a final decision of the Secretary of Health,

Education and Welfare of the United States of America who has denied the

application of Plaintiff, Angela Brummer Mason, for Social Security

benefits as a child of the entitled retired worker, Philip H. Brummer,

under the provisions of Section 202(d)(1) of the Social Security Act.

Plaintiff Brummer (Mason) seeks child's insurance benefits under section

202(d)(1) of the Social Security Act as a child of an individual entitled

to old-age insurance benefits who at the time of application is unmarried,

is a "full time student" who has not attained the age of 22, and is

dependent upon the insured individual.

Plaintiff received Social Security benefits as a child of the entitled

retired worker, Philip H. Brummer, from October 1974, until she reached

age 18 in February , 1975. Her benefits were terminated in February 1975,

based on a determination that she did not meet the qualifications for

entitlement of a full- time student. On November 12, 1975, she requested

reconsideration contending that her correspondence courses from the

American School in Chicago, Illinois, qualified her for benefits as a

student. She was notified on February 9, 1976, that it was determined upon

reconsideration that she was not eligible to receive monthly child

insurance benefits because she was not a minor child, a disable adult

child, or a full-time student as recognized in the Social Security Act and

Regulations. On March 13, 1976, she requested a hearing. The hearing was

held on June 22, 1976, at Miami, Florida. A request for review of the

decision resulted in the affirmance of the decision by the Appeals Council

on December 1, 1976. Plaintiff then sought judicial review pursuant to 42

U.S.C. Section 405(g) by filing the Complaint in this case.

ognized in the Social Security Act and

Regulations. On March 13, 1976, she requested a hearing. The hearing was

held on June 22, 1976, at Miami, Florida. A request for review of the

decision resulted in the affirmance of the decision by the Appeals Council

on December 1, 1976. Plaintiff then sought judicial review pursuant to 42

U.S.C. Section 405(g) by filing the Complaint in this case.

The function of this Court is not to determine the claim of Plaintiff

Brummer (Mason) de novo, but rather to determine whether the

findings of the Secretary as to any fact are supported by substantial

evidence. 42 U.S.C. Section 405(g); Malveaux v. Mathews, 542 F.2d

647 (5th Cir. 1976); Gautney v. Weinberger, 505 F.2d 943 (5th Cir.

1974).

The Administrative Law Judge stated in his decision, after holding an

evidentiary hearing, that the sole issue to be determined is whether the

claimant is entitled to child's insurance benefits on the account of the

retired wage earner, Philip H. Brummer, as a full-time student beneficiary

and that this is dependent upon whether or not correspondence schools are

covered by the Social Security Act. The Administrative Law Judge found

that section 404.320(c)(2) of Social Security Regulation No. 4 (20 C.F.R.

404.320(c)(2) 1975) is dispositive of this issue. Section 404.320(c)(2)

provides in pertinent part: "Ordinarily, a student is in 'full-time

attendance' at an educational institution if he is enrolled in a

non-correspondence course and is carrying a subject load which is

considered full- time for day students under the institution's standards

and practices". Based on this express exclusion of correspondence schools

the Administrative Law Judge found that the Plaintiff was not a "full-time

student" within the meaning of the Act and therefore was not entitled to

child's insurance benefits after February 1975.

course and is carrying a subject load which is

considered full- time for day students under the institution's standards

and practices". Based on this express exclusion of correspondence schools

the Administrative Law Judge found that the Plaintiff was not a "full-time

student" within the meaning of the Act and therefore was not entitled to

child's insurance benefits after February 1975.

Prior to rendering his decision, the Administrative Law Judge held an

evidentiary hearing at which time the Plaintiff (represented by her

mother, Sylvia Brummer) offered testimony. The Plaintiff testified that

she attended high school through the 10th grade, but did not pass the 10th

grade, and therefore had the equivalent of a 9th grade education. She

decided to take the American School correspondence course the summer after

the 10th grade to avoid having to repeat the 10th grade. She stated that

she started the correspondence school about the school year of 1974 and

was still living at home with her family at that time and was not working.

She also stated that she spent about 20 hours a week on the correspondence

course.

Mrs. Brummer testified that, according to a publication of the United

States Government, which she claims she and Plaintiff relied on, a person

is entitled to social security benefits as a full-time student if he or

she attends a high school, trade, or vocational school and is considered

in full-time attendance by the school, is enrolled in a course of study

lasting at least 13 weeks and is enrolled for at least 20 hours a week.

The publication states that "a private school or college approved by a

State or accredited by a State-recognized or nationally recognized

accrediting agency" is a school that qualifies, but does not mention

correspondence schools at all.

idered

in full-time attendance by the school, is enrolled in a course of study

lasting at least 13 weeks and is enrolled for at least 20 hours a week.

The publication states that "a private school or college approved by a

State or accredited by a State-recognized or nationally recognized

accrediting agency" is a school that qualifies, but does not mention

correspondence schools at all.

The Administrative Law Judge did not address in his decision the question

raised by Mrs. Brummer that Plaintiff should have been able to rely on the

government's publication and that therefore the government should allow

Plaintiff benefits even though the regulations provide otherwise. The

Administrative Law Judge made the following statement during the hearing,

however:

The Administrative Law Judge apparently decided as a matter of law that

Plaintiff's estoppel argument had no merit. Although there are exceptions

to the general rule that estoppel may not be asserted against an agency of

the United States government the exceptions do not apply in a case such as

this where the alleged representation which Plaintiff relied on is

contrary to the law. See Brown v. Richardson, 395 F.Supp. (W.D. Pa.

1975); U.S. v. State of Florida, 482 F.2d 205 (5th Cir. 1973), U.S. v. Sexton Cove Estates, Inc., 389 F.Supp. 602 (S.D. Fla.

1975).

In Brown v. Richardson, supra, the factual situation was very

similar to the instant case. Plaintiff contended that the government

should be estopped to deny payment of medicare benefits because of a

statement in a handbook put out by the Social Security Administration that

notices of benefits remaining would be sent, whereas no notices were sent.

The Secretary of Health, Education and Welfare initially denied benefits

without considering the estoppel question and the District Court remanded

the case for factual determinations as to whether the factual

prerequisites for an estoppel claim were present

ndbook put out by the Social Security Administration that

notices of benefits remaining would be sent, whereas no notices were sent.

The Secretary of Health, Education and Welfare initially denied benefits

without considering the estoppel question and the District Court remanded

the case for factual determinations as to whether the factual

prerequisites for an estoppel claim were present. On reconsideration the

District Court decided that as a matter of law that the Secretary could

not be estopped because the application of the estoppel doctrine would

have worked a result inconsistent with the provisions of the Social

Security Act.

In the instant case there was no express finding by the Secretary on the

estoppel issues either. Although the Administrative Law Judge considered

the estoppel issue, he did not ascertain the factual basis for a showing

of estoppel: whether there was a false representation of fact which the

other party reasonably relied on and prejudice as a result of the

reliance. See Brown v. Richardson, supra.

Plaintiff's position is that she should be given a benefit which the

lawfully promulgated regulations expressly do not allow. Even assuming,

arguendo, the Plaintiff could prove the factual basis for estoppel against

the government, she would not recover because the case law clearly

precludes the application of the estoppel doctrine if it would result in a

granting of a benefit in direct contravention of the provisions of the

law. See U.S. v. State of Florida, supra; U.S. v. Sexton Cove Estates,

Inc., supra. Therefore, it would be fruitless to remand the case to

the agency for additional factual determinations.