Paxton v. Bowen, Civ. No. S-85-1367 MLS.

• Decision Date: 26 January 1987
• Docket Number: Civ. No. S-85-1367 MLS.
• Citation: 657 F. Supp. 93
• Court: U.S. District Court — Eastern District of California
• Parties: Florence PAXTON, Plaintiff, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant.

657 F. Supp. 93

Florence PAXTON, Plaintiff, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant.

Civ. No. S-85-1367 MLS.

United States District Court, E.D. California.

January 26, 1987.

Jane L. Patterson, Law Offices of Phillip N. Bruce, Sacramento, Cal., for plaintiff.

Peter A. Nowinski, U.S. Atty., R. Steven Lapham, Asst. U.S. Atty., Sacramento, Cal., for defendant.

ORDER

MILTON L. SCHWARTZ, District Judge.

Plaintiff seeks judicial review of a final decision of the Secretary of Health and Human Services denying Social Security benefits.

Plaintiff filed a petition for judicial review on September 24, 1985, following which this matter was referred to United States Magistrate Esther Mix pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(b)(13). Plaintiff thereafter moved for summary judgment or, alternatively, for remand. Defendant responded by filing a cross-motion for summary judgment. These motions were duly considered by Magistrate Mix and on September 10, 1986, in accordance with 28 U.S.C. § 636(b)(1)(C) and Local Rule 305, she filed Proposed Findings and Recommendations.

The magistrate found that the extra pension benefits paid to a veteran for his spouse's support must be counted in the spouse's income when determining her eligibility for supplemental security income (SSI) benefits. The magistrate further found that the extra benefits paid are presumed to have been applied for the spouse's support; the actual amount spent for the spouse's support is immaterial. The magistrate therefore concluded that the Secretary had applied correct legal principles in determining plaintiff's SSI eligibility and that the Secretary's decision is supported by substantial evidence. She therefore recommended that defendant's motion for summary judgment be granted.

On September 22, 1986, plaintiff filed timely objections to the Proposed Findings and Recommendations. Plaintiff argues that veteran's pensions are based on need and hence should not have been included in her income for SSI purposes, citing 20 C.F.R. § 416.1161(a)(2). Plaintiff alternatively maintains that if these veteran's benefits are considered in determining SSI eligibility, the Secretary should have determined what proportion of the benefits was actually being spent for plaintiff's support. Finally, plaintiff objected to the magistrate's application of Whaley v. Schweiker, 663 F.2d 871 (9th Cir.1981), and Social Security Ruling (SSR) 82-31 to this case.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 305, this court has conducted a de novo review of the magistrate's findings and recommendations. Having carefully reviewed the entire file, including the administrative record, the court finds the magistrate's findings and recommendations to be supported by the record and by the magistrate's analysis, for the following reasons.

In Whaley, the Ninth Circuit held that the increased portion of pension benefits paid to a veteran for the support of his dependents is not income to the veteran for the purposes of determining his SSI eligibility. 663 F.2d at 875. The issue in the case before this court is whether this increased portion of veteran's benefits must be counted as income to the dependent for purposes of determining her eligibility for SSI benefits. The magistrate's conclusion that the extra benefits should be counted as income to the dependent logically follows from the reasoning in Whaley, and plaintiff has suggested no principled basis for excluding the extra income when evaluating the dependent's SSI eligibility.

As for the interpretation of SSR 82-31 and 20 C.F.R. § 416.1161(a)(2), the court notes that the Secretary's...