Whaley v. Harris, 79-4210

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 650 F.2d 181
• Docket Number: No. 79-4210,79-4210
• Parties: Hugh WHALEY, Appellee, v. Patricia HARRIS, Secretary of Health, Education and Welfare, Appellant.
• Decision Date: 06 April 1981

Page 181

650 F.2d 181 Hugh WHALEY, Appellee,
v.
Patricia HARRIS, Secretary of Health, Education and Welfare,
Appellant. No. 79-4210. United States Court of Appeals,
Ninth Circuit. April 6, 1981.

Page 182

Dennis J. Mulshine, San Francisco, argued, Robert Varnum, Atty., Stuart E. Schiffer, Asst. Atty. Gen., Washington, D.C., on brief, for appellant.

Darci Reid, Fresno, Cal., for appellee.

Appeal from the United States District Court for the Eastern District of California.

Before HUG and TANG, Circuit Judges, and MURRAY ^*, Senior District Judge.

WILLIAM D. MURRAY, Senior District Judge:

The Secretary of the Department of Health, Education and Welfare (Secretary) appeals the district court's order setting aside the Secretary's decision to disallow Supplemental Security Income (SSI) benefits to the plaintiff, Hugh Whaley. The Secretary contends that Whaley was ineligible for SSI benefits because the additional veterans' benefits that he receives as a father with minor dependent children must be included as income available to him in computing his eligibility for SSI benefits. At issue on this appeal is the Secretary's interpretation of the term "income" as that term is used in 42 U.S.C. § 1382a of the Social Security Act and as defined in regulations adopted pursuant to that Act.

The Secretary determined that Whaley was ineligible for SSI benefits because of excess income. Whaley exhausted his administrative remedies and sought judicial review of the Secretary's decision. The district court, relying on a magistrate's recommendation, reversed the Secretary's decision without opinion. We hold that the Secretary's interpretation was reasonable and reverse the decision of the district court.

Whaley is a veteran receiving benefits under the Veterans' Act, 38 U.S.C. § 521, for a non-service disability, as well as SSI benefits because he is over sixty-five years old. At the time of the complaint, three of Whaley's children lived with him. Because of this, Whaley received more veterans' benefits than he would have received had he been living alone. In August, 1976, the Social Security Administration notified Whaley that he was no longer eligible for SSI benefits because his entire income, including the veterans' benefits, had been considered in computing his SSI eligibility.

The crux of Whaley's argument is that any additional veterans' benefits he received because the children were living with him should not be included as part of his

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income for SSI purposes. Had Whaley lived alone he would have been eligible for $103.93 per month in veterans' benefits. The custody of the three dependent children entitled him to an additional $56.11 per month, making him ineligible for SSI benefits. Whaley argues that only the $103.93 should be counted as his income in determining SSI eligibility.

The Secretary's interpretation of the Social Security Act and regulations under that Act are entitled to deference if that interpretation is reasonable. Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801-802, 13 L.Ed.2d 616 (1965). Although Whaley receives a greater veterans' benefit because of the children in his custody, it is nonetheless reasonable under the Social Security Act and regulations to count the entire veterans' pension as income.

In computing a recipient's eligibility for SSI benefits all income, earned and unearned, is taken into account. Under 42 U.S.C. § 1382a(a)(2)(B), unearned income specifically includes veterans' compensation and benefits. ¹

Pursuant to her rulemaking powers, 42 U.S.C. § 1383(d)(1) and 405(c), the Secretary has...