SSR 84-20a: SECTION 202(c) (42 U.S.C. 402(c) HUSBAND'S INSURANCE BENEFITS -- GOVERNMENT PENSION OFFSET -- ONE-HALF SUPPORT -- POOLED INCOME

20 CFR 404.408a

SSR 84-20a

Under 20 CFR 404.408a(a), the Social Security Administration determined that the claimant's husband's insurance benefits were subject to offset by the amount of his monthly Federal government pension. 20 CFR 404.408a(b) provides an exception to offset for certain spouses who meet the requirements for Social Security benefits that were applied in January 1977. One of the requirements for entitlement to husband's insurance benefits in January 1977 was that the husband's wife must have been providing at least one-half of his support when she became entitled to Social Security benefits. Held, the claimant did not qualify for the exception because he did not meet the one-half support requirement for husband's insurance benefits that was applied in January 1977. At the time of his wife's entitlement to old-age insurance benefits (OAIB), the claimant's income was $886.94 a month and his wife's income was $1,700 a month. The claimant and his wife shared equally in the total family income ($2,586.94 a month), which was used (i.e., pooled) for their living expenses. Accordingly, the cost of the claimant's support was one-half of the total family income ($1,293.47 a month). Since the claimant's own income of $886.94 a month was greater than one-half of the $1,293,47 (i.e., $646.74), the claimant was not receiving at least one-half of his support from his wife at the time she became entitled to OAIB.

The issue before the Appeals Council (AC) was whether the claimant's husband's insurance benefits were subject to reduction because of his receipt of a government pension.

In April 1980, the claimant's wife became entitled to OAIB and the claimant became entitled to husband's insurance benefits on her earnings record. When SSA determined that the claimant's husband's insurance benefits were subject to offset by the amount of his monthly Federal government pension, the claimant appealed.

Section 202(c) of the Act provides for the payment of husband's insurance benefits if certain requirements are met.

Section 404.408(a) of Regulations No. 4 provides, in pertinent part, that --

"(a) When reduction is required. Your monthly social security benefits as a . . . husband . . . will be reduced each month (to zero, if necessary) by the amount of any monthly pension you are receiving from a Federal, State, or local government agency for which you were employed in work not covered by social security on the last day of such employment. . . .

(b) Exceptions. The reduction does not apply:

(1) If you are receiving or will be eligible to receive a Government pension for one or more months in the period December 1977 through November 1982 and meet the requirements for social security benefits that were applied in January 1977, even though you don't claim benefits, and you don't actually meet the requirements for receiving benefits until a later month. You are considered eligible for a Government pension for any month in which you meet all the requirements for payment except that you are working or have not applied. . . .

(d) When effective. This reduction was put into the Social Security Act by the Social Security Amendments of 1977. It only applies to applications for benefits filed in or after December 1977 and only to benefits for December 1977 and later."

An administrative law judge (ALJ) decided that the claimant's husband's insurance benefits were not subject to offset. The ALJ noted that the claimant had received his government pension for one or more months during the period December 1977 through November 1982. The ALJ also found that the claimant met the requirements for husband's insurance benefits that were applied in January 1977, including the subsequently repealed requirement that he had been receiving at least one-half of his support from his wife when she became entitled to OAIB. As a result of these findings, the ALJ concluded that the exception to offset in § 404.408a(b) of Regulations No. 4 was applicable to the claimant.

The AC did not agree with the ALJ's decision. At the time of his wife's entitlement to OAIB, the claimant's income was $886.94 a month and his wife's income was $1,700 a month. The claimant and his wife shared equally in the total family income ($2,586.94 a month), which was used (i.e., pooled) for their living expenses. Accordingly, the cost of the claimant's support was one-half of the total family income ($1,293.47 a month). Since the claimant's own income of $886.94 a month was greater than one-half of his support from his wife at the time she became entitled to OAIB. Therefore, since the one-half support requirement was not met, the exception to offset in § 404.408a(b) of Regulations No. 4 was not applicable. Consequently, in reversing the ALJ's decision, the AC concluded that the claimant's husband's insurance benefits were subject to government pension offset.

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