Tsosie v. Califano, 79-1142

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before DOYLE, BREITENSTEIN and SEYMOUR; SEYMOUR
• Citation: 651 F.2d 719
• Parties: Venita TSOSIE, Plaintiff-Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant-Appellee.
• Docket Number: No. 79-1142,79-1142
• Decision Date: 19 June 1981

Page 719

651 F.2d 719 Venita TSOSIE, Plaintiff-Appellant,
v.
Joseph A. CALIFANO, Jr., Secretary of Health, Education and
Welfare, Defendant-Appellee. No. 79-1142. United States Court of Appeals,
Tenth Circuit. Argued Nov. 21, 1980.
Decided June 19, 1981.

Page 720

Timothy V. Flynn-O'Brien, Shiprock, N. M. (Judy A. Flynn-O'Brien, Shiprock, N. M., with him, on brief), for plaintiff-appellant.

Robert Varnum, Atty., Dept. of Justice, Washington, D. C. (Barbara Allen Babcock, Asst. Atty. Gen., R. E. Thompson, U. S. Atty., Albuquerque, N. M., and William Kanter, Atty., Dept. of Justice, Washington, D. C., with him, on brief), for defendant-appellee.

Before DOYLE, BREITENSTEIN and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Plaintiff Venita Tsosie has appealed the decision of the Secretary of Health, Education and Welfare that she is ineligible for Supplemental Security Income (SSI) pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), as incorporated by section 1631(c)(3) of the Act, 42 U.S.C. § 1383(c) (3). The district court affirmed the Secretary's decision without opinion. We reverse.

I.

Mrs. Tsosie is the disabled widow of a veteran, living with five of her nine children. She received a surviving spouse pension from the Veterans' Administration (VA) of $227 a month, which includes $118 per month because of the five children in her custody. If Tsosie had lived alone, without her children, she would have been eligible for a total of $109 a month. It is undisputed that Tsosie uses the additional funds to meet the needs of her children.

Prior to 1977, Tsosie also received SSI benefits because of her disability. SSI is a federal income maintenance program administered by the Social Security Administration (SSA). See 42 U.S.C. § 1381 et seq. Persons are eligible for SSI benefits if they are aged, blind, or disabled and if their income and resources fall below certain specified levels. See Id. § 1382(a), (b), (c).

In January 1977, the SSA terminated Tsosie's SSI benefits on the ground that she had income in excess of the then existing statutory limit of $167.80 per month. The SSA calculated Tsosie's monthly income to be $254, ¹ a figure which included the entire

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VA surviving spouse pension received by Tsosie.

Tsosie requested and received reconsideration by the SSA of its decision to terminate her SSI benefits, ² but her claim was denied. At her hearing before an Administrative Law Judge, she argued that the $118 in VA pension benefits she received because she has children in her custody should be counted as her children's income, rather than her own. If the $118 had not been treated as hers, her income would have been below the statutory limit and she would have remained eligible for SSI benefits. ³ The Administrative Law Judge held that the entire VA pension was countable as her income and that Tsosie was not eligible for further SSI benefits due to excessive income. This decision became the final decision of the Secretary, affirmed by the district court.

II.

The sole issue in this case is whether the SSA may properly count the portion of the VA surviving spouse pension Tsosie receives on account of her children as income to her in determining her eligibility for SSI benefits. ⁴ Tsosie claims that to attribute the portion of the VA pension paid to her because of her children violates both the letter and the spirit of the Veterans' Benefits Act, 38 U.S.C. § 101 et seq., defeats the purpose of the Social Security Act, and constitutes a denial of equal protection. ⁵

The Secretary responds that the language of the Veterans' Benefits Act and accompanying regulations indicates that money paid to a surviving spouse on account of children is intended to be the spouse's income, not the children's. The Secretary notes that 38 U.S.C. § 541 refers to a pension "to the surviving spouse," not to the child; that although the VA does provide for apportionment or direct payment to the child, it does so only when the child is not in the surviving spouse's custody, see 38 C.F.R. § 3.450(a)(2), or when there is no surviving spouse, see 38 U.S.C. § 542; and that there is no sanction or penalty requiring a surviving spouse to use any part of the pension on behalf of the spouse's children. Accordingly, the Secretary asserts that the entire pension is to be treated as Tsosie's "income" under the Social Security Act, because it is

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money "actually available" to her. See 20 C.F.R. §§ 416.1102, .1120. ⁶ Moreover, the Secretary asserts that we must give his interpretation a strong presumption of validity because great deference is to be accorded an administrative agency's interpretation of its own regulations.

We agree with the principle that a court should accord substantial weight to the interpretation given a statute or regulation by the agency charged with administering it. See Miller v. Youakim, 440 U.S. 125, 144, 99 S.Ct. 957, 969, 59 L.Ed.2d 194 (1979); Board of Directors & Officers, Forbes Federal Credit Union v. National Credit Union Administration, 477 F.2d 777, 784 (10th Cir. 1973). But this principle has limited application here. The Secretary's determination that Tsosie's entire VA pension is to be treated as her income under the Social Security Act turns almost completely on his reading of the Veterans' Benefits Act and VA regulations. The Secretary's construction is not entitled to special deference to the extent it rests on the...