SSR 80-28c: SECTION 202(c)(2) (42 U.S.C. 402(c)(2)) HUSBAND'S INSURANCE BENEFITS -- GOVERNMENT PENSION OFFSET -- CONSTITUTIONALITY

20 CFR 404.408a

SSR 80-28c

Duffy v. Harris , U.S.D.C. New Mexico, Civ. No. 79-386 (10/23/79)

PAYNE , District Judge:

Plaintiff brings this action seeking judicial review of the final

decision of the Secretary which determined that the husband's insurance

benefits plaintiff is entitled to under the Social Security Act, 42 U.S.C.

§ 401 et seq ., must be totally offset by his civil service

pension.

Plaintiff's wife, Betty Duffy, became entitled to retirement insurance

benefits under the Social Security Act effective January 1976. In July of

1977, the month in which he attained the age of sixty-two, plaintiff

called a district office of the Social Security Administration to inquire

about the filing of an application for husband's insurance benefits under

§ 202(c) of the Social Security Act (hereinafter referred to as "the

Act"), 42 U.S.C. § 402(c). At that time, plaintiff's son was entitled to

child's insurance benefits as a student on the earnings record of his

mother. Hence, plaintiff was advised that if he filed and became entitled

to husband's insurance benefits, the family would receive a smaller amount

than it would if he deferred filing until the child's entitlement

ended. [1] The child's

entitlement ended effective January of 1978 and plaintiff filed an

application for husband's insurance benefits on January 10, 1978. In

connection with his application, plaintiff informed the Social Security

Administration that he was receiving a civil service pension as a result

of his employment with the Department of Defense.

ling until the child's entitlement

ended. [1] The child's

entitlement ended effective January of 1978 and plaintiff filed an

application for husband's insurance benefits on January 10, 1978. In

connection with his application, plaintiff informed the Social Security

Administration that he was receiving a civil service pension as a result

of his employment with the Department of Defense.

On March 16, 1978, the Social Security Administration made an initial

determination that although plaintiff was entitled to a husband's

insurance benefit, the amount of his monthly benefit must be reduced by

the amount of his federal government pension. Hence, the husband's benefit

of $75.80 per month was not payable since the plaintiff's monthly Civil

Service pension (approximately $14,000 per annum) far exceeded the monthly

husband's benefits. Upon reconsideration the initial determination was

affirmed. Plaintiff then requested a hearing. At the hearing, plaintiff

testified that a claims representative advised him to file after December

of 1977 so that the benefits his son was receiving would not be reduced.

He further testified that the claims representative who rendered the

advise appeared to have acted in good faith. Plaintiff agreed with his

representative's assertion that he did not file an application for

benefits in July of 1977 because he was relying upon the Administration

for guidance.

On November 2, 1978, a hearing decision unfavorable to plaintiff was

rendered. The decision was affirmed upon review by the Appeals Council and

became the final decision of the Secretary.

Since plaintiff did not file an application for husband's insurance

benefits until January of 1978, he clearly falls within the offset

provision of 42 U.S.C. § 402(c)(2), which requires that plaintiff's

husband's insurance benefits be offset against his Civil Service pension.

The issues before this Court, therefore, are:

he Appeals Council and

became the final decision of the Secretary.

Since plaintiff did not file an application for husband's insurance

benefits until January of 1978, he clearly falls within the offset

provision of 42 U.S.C. § 402(c)(2), which requires that plaintiff's

husband's insurance benefits be offset against his Civil Service pension.

The issues before this Court, therefore, are:

Plaintiff would qualify for the exception to the offset provision

contained in § 334(g) of Public Law 95-216, only if he were to satisfy the

one-half support requirement contained in the former 42 U.S.C. § 402(c),

as it was administered in January 1977. Here, the record shows no evidence

that the one-half support requirement has been met. Accordingly, plaintiff

cannot qualify for the exception and is subject to the offset provision in

42 U.S.C. § 402(c)(2), as amended December 20, 1977.

The offset provision in 42 U.S.C. § 402(c)(2) and the exception thereto

in § 334(g) of Public Law 95-216 satisfy the Due Process and Equal

Protection requirements of the Fifth Amendment if the classifications

therein are not patently arbitrary and bear a rational relationship to a

legitimate governmental interest. Frontiero v. Richardson , 411 U.S.

677, 633 (1973); Bolling v. Sharpe , 347 U.S. 497, 499 (1964); Schneider v. Rusk , 377 U.S. 163, 168 (1964); Shapiro v.

Thompson , 394 U.S. 618, 642 (1969); see also, Dandridge v.

Williams , 397 U.S. 471, 485 (1970); Richardson v. Belcher , 404

U.S. 78, 81, 84 (1971); Weinberger v. Salfi , 422 U.S. 749, 768, 769

to a

legitimate governmental interest. Frontiero v. Richardson , 411 U.S.

677, 633 (1973); Bolling v. Sharpe , 347 U.S. 497, 499 (1964); Schneider v. Rusk , 377 U.S. 163, 168 (1964); Shapiro v.

Thompson , 394 U.S. 618, 642 (1969); see also, Dandridge v.

Williams , 397 U.S. 471, 485 (1970); Richardson v. Belcher , 404

U.S. 78, 81, 84 (1971); Weinberger v. Salfi , 422 U.S. 749, 768, 769

(1976); Jefferson v. Hackney , 406 U.S. 636, 546 (1972); McGowan

v. Maryland , 366 U.S. 420, 426 (1961). The Court has examined the

entire record, including the briefs and arguments of both counsel, and

concludes, as did the Secretary, that the provisions in question are

rationally calculated to avoid windfall benefits which would have

otherwise been payable to government pensioners because of the affect of Califano v. Goldfarb , 430 U.S. 199 (1977) upon the Social Security

Act as it existed before December 20, 1977. Moreover, the Court concludes

that this statutory effort was neither arbitrary nor capricious.

Accordingly the defendant's motion to affirm will be granted in a separate

order.

IT IS BY THE COURT ORDERED that the final decision of the

Secretary of Health, Education and Welfare in the above entitled cause be,

and it is hereby affirmed and that plaintiff's complaint be, and it is

hereby dismissed.

[1] Effective July 1977,

plaintiff's wife was entitled to $148.80 per month and his son was

entitled to $90.90 per month. If plaintiff had filed an application and

become entitled to husband's insurance benefits effective July 1977, he

would have been entitled to $34.20 per month and the benefits payable to

his son would have been reduced to $45.50 per month. The amount payable to

his wife would not have been affected. Thus, plaintiff's entitlement in

July 1977 would have caused a net loss of $11.20 per month to the family

overall and would have caused his son's benefit to be reduced from $90.90

per month to $45.50 per month. Sections 202(q) and 203 of the Act.