Whaley v. Harris, 79-4210
| Decision Date | 06 April 1981 |
| Docket Number | No. 79-4210,79-4210 |
| Citation | 650 F.2d 181 |
| Parties | Hugh WHALEY, Appellee, v. Patricia HARRIS, Secretary of Health, Education and Welfare, Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.
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 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 defined "income" to mean
the receipt by an individual of any property or service which he can apply either directly or by sale or conversion to meeting his basic needs for food, clothing, and shelter. 20 C.F.R. § 416.1102.
Additionally, in considering the amount of unearned income a person is considered as receiving, "the amount actually available to the individual is considered." 20 C.F.R. § 416.1120 (emphasis added).
Considering the regulations together, money is considered to be received for purposes of determining SSI eligibility if the money is "actually available" to the recipient and he can apply it "directly or by sale or conversion to meeting his basic needs for food, clothing, and shelter." In light of the statute, and the regulations promulgated pursuant to the statute, it is clear that Whaley's contention that the extra benefit paid to him is actually his childrens' income must fail. The Secretary was reasonable in concluding that the entire benefit paid to Whaley was "actually available" to him. Two major reasons support that conclusion.
First, the Veterans' Administration sends the entire $160.04 pension to Whaley in one check, payable to him. Whaley is free to spend the money in any way he chooses, and may apply it directly to meet his "basic needs for food, clothing, and shelter." 20 C.F.R. § 416.1102. While it may be assumed that some of the money would be spent to meet the needs of the children, there is nothing compelling Whaley to do so. The children cannot cash the check nor can they claim any legal entitlement to any portion of it. The single check is "actually available" to Whaley within the meaning of 20 C.F.R. § 416.1120.
By contrast, we note that under the Social Security Act, children do have a legal entitlement to money sent by the Social Security Administration under certain circumstances to the children in separate checks. See 42 U.S.C. § 402(d). The magistrate's recommendation, which the court below adopted, was based on the erroneous belief that in such cases the benefits...
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Whaley v. Schweiker
...California. Before HUG and TANG, Circuit Judges, and MURRAY, ** District Judge. HUG, Circuit Judge: The opinion of April 6, 1981, 650 F.2d 181 (9th Cir. 1981), is hereby withdrawn and the following opinion is This case concerns the computation of benefits under the Social Security Act. The ......