SSR 83-45a: SECTIONS 202(e)(1), 202(j)(4), AND 216(d)(1) (42 U.S.C. 402(e), 402(j)(4), AND 416(d)(1)) WIDOW'S INSURANCE BENEFITS -- SURVIVING DIVORCED WIFE -- RESTRICTIONS ON THE RETROACTIVITY OF AN APPLICATION -- REDUCED BENEFITS INVOLVED

20 CFR 404.336 and 404.621(a)

SSR 83-45a

On the basis of an application filed in August 1979, an administrative law judge (ALJ) determined that the claimant, born May 8, 1918, was entitled to widow's insurance benefits (WIB) as the worker's surviving divorced wife effective January 1979. under section 202(j)(4) of the Social Security Act (the Act), the retroactivity of an application for WIB is restricted, with certain exceptions, to the moth of filing if the benefit that might otherwise be payable for an earlier month would be subject to reduction for age. Because the payment of WIB to the claimant for months before August 1979 would have been subject to such a reduction and one of the exceptions was applicable, the appeals council (AC) determined that an error of law had been made and granted the request for review. In revising the ALJ's decision, the AC held that the claimant's entitlement to WIB as the worker's surviving divorced wife could begin no earlier than August 1979.

The issue before the AC was whether the claimant could become entitled to WIB as the worker's surviving divorced wife as early as January 1979.

The worker died on October 19, 1961. On August 2, 1979, and again on July 1, 1980, the claimant, born May 8, 1918, applied for WIB as the worker's surviving divorced wife. her applications were denied because she had failed to establish that her marriage to the worker had lasted for at least 10 years. When the claimant appealed the denial of her second application, an ALJ found that the claimant had been married to the worker for at least 10 years but less than 20 years. Consequently, the ALJ reopened the determination denying the claimant's first application and determined that she was entitled to WIB as the worker's surviving divorced wife effective January 1979.

Section 202(e)(1) of the Act provides, in pertinent part, that if certain requirements are met --

"The . . . surviving divorced wife (as defined in section 216 (d)) of an individual who died a fully insured individual . . . shall be entitled to a widow's insurance benefit. . . ."

Section 216(d)(1) of the Act provides that --

"The term 'divorced wife' means a woman divorced from an individual, but only if she had been married to such individual for a period of 10 years [20 years prior to January 1979] immediately before the date the divorce became effective."

Section 202(j)(4) of the Act provides, in pertinent part, that --

If the effect of the payment of benefits for a month before the month an individual files would be to reduce her benefits because of her age, the individual cannot, with certain exceptions, be entitled to widow's benefits for any month before the month in which her application is filed.

The AC concurred with the ALJ's findings that the claimant's marriage to the worker lasted at least 10 years but less than 20 years and that the claimant was entitled to WIB as the worker's surviving divorced wife. The AC, however, did not agree with the ALJ's finding that the claimant was entitled to those benefits as early as January 1979. Before January 1978, an application for WIB could be retroactive for as many as 12 months if all the requirements were met. As of January 1978, however, section 202(j)(4) of the Act provides that the retroactivity of an application for WIB is restricted, with certain exceptions, to the month of filing if the benefit that might otherwise be payable for an earlier month would be subject to reduction for age. Because the payment of WIB to the claimant for months before August 1979 would have been subject to such a reduction and none of the exceptions was applicable, the AC granted the request for review. In revising the ALJ's decision, the AC held that the claimant's entitlement to WIB as the worker's surviving divorced wife could begin no earlier than August 1979.

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