Pulley for Pulley v. Bowen, 86-1647

• Decision Date: 29 April 1987
• Docket Number: No. 86-1647,86-1647
• Citation: 817 F.2d 453
• Parties: , Unempl.Ins.Rep. CCH 17,362 Lois PULLEY for Susan PULLEY, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant- Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 453

817 F.2d 453

17 Soc.Sec.Rep.Ser. 706, Unempl.Ins.Rep. CCH 17,362

Lois PULLEY for Susan PULLEY, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services Defendant- Appellee.

No. 86-1647.

United States Court of Appeals, Seventh Circuit.

Submitted March 19, 1987.

Decided April 29, 1987.

John W. Campbell, Biddinger & Johnson, Marion, Ill., for plaintiff-appellant.

James G. Richmond, U.S. Atty's. Office, Hammond, Ind., Christina McKee, Asst. U.S. Atty., Fort Wayne, Ind., Donald T. McDougall, Regional Counsel, HHS, Chicago, Ill., for defendant-appellee.

Before CUMMINGS, FLAUM, and EASTERBROOK, Circuit Judges.

PER CURIAM.

The Social Security Act provides insurance benefits to dependent minor children (both natural and adopted) if a parent who is covered under the Act dies. 42 U.S.C. Sec. 402(d). A child adopted by the surviving spouse within two years of the insured's death is entitled, with one exception, to the same benefits. 42 U.S.C. Sec. 416(e). This lawsuit involves the exception which disqualifies a child from receiving benefits if at the time of the insured's death, the child "was receiving regular contributions toward [her] support from ... any public or private welfare organization which furnishes services or assistance for children." Id. Susan Pulley, through her adoptive mother, Lois Pulley, the plaintiff-appellant, argues that the $3.00 per day which she received from the Grant County, Indiana, Department of Public Welfare, does not constitute a "regular contribution" for purposes of the statute. We disagree and therefore affirm the district court's action in upholding the Secretary's decision to deny benefits.

Appellant Pulley contends that contributions cannot be "regular" unless they are also substantial and, she argues, $3.00 per day is not substantial. Her argument, however, contradicts the plain language of the statute which contains no requirement that the payments must be substantial. Neither the legislative history nor the implementing regulations, which essentially mirror the statute, provide any support for appellant's argument. The legislative history indicates that the chief concern of the House and Senate committees appears to have been only to withhold benefits from an individual who received support from outside the adoptive family. See S.Rep. No. 2388, 85th Cong., 2d Sess. (1958); H.Rep. No. 2288, 85th Cong., 2d Sess. (1958), U.S.Code Cong. & Admin.News 1958, p. 4218. The legislative history is completely consistent with the language of the statute.

It is true that the statute may occasionally yield seemingly unfair results because an individual who received only minimal outside support will be disqualified from receiving benefits. Perhaps this is why, for a time, the Social Security Administration appeared to modify, through the Social Security Administration Program Operations Manual, the language of the statute to require an investigation into the amount rather than just the regularity of the payments. The Secretary, however, never adopted that view in implementing regulations, see 20 C.F.R. Sec. 404.362(c)(1), and therefore the view expressed in the manual is not binding and cannot be considered by this Court. See Schweiker v. Hansen, 450 U.S. 785, 789, 101 S.Ct. 1468, 1471, 67 L.Ed.2d 685 (1981) (manual has no legal force; it is not a regulation and does not bind the Secretary). To the extent that the statute might yield unfair results, it is a cost that Congress was willing to accept as part of administering a large social insurance program. It is a policy decision that the courts must enforce.

Appellant cites Stowers v. Finch, 323 F.Supp. 863 (E.D. Cal.1971), which "[read] the term 'regular contribution' to mean 'substantial contribution.' " Id. at 864. The Stowers court did so, however, only to avoid addressing the Stowers' claimant's argument that the statute was unconstitutional. The claimant there argued that the statute...