20 CFR 404.335(a)(2) and (6)
A question has been raised concerning the proper interpretation of section 202(g)(1)(F)(ii) of the Social Security Act. Reference is made to the following set of facts: A "surviving divorced mother" is a claimant for mother's insurance benefits, beginning November 1973. She has in her care a child who from November 1973 to September 1974 was simultaneously entitled to benefits on the earnings records of his stepfather and his natural father. The deceased natural father was the divorced spouse of the claimant and is the worker on whose earnings record she is filing her application. The child in question was first entitled to child's insurance benefits on the earnings of his stepfather in February 1970 and did not become entitled on his natural father's earnings until November 1973. Although the child was entitled to child's insurance benefits on two earnings records during the period in question, he was limited by section 202(k)(2)(A) of the Act to payment of only one benefit for such period.
Section 202(k)(2)(A) provides, in pertinent part:
The use of the word "entitled" in this has been interpreted to mean that a child may be entitled on the earnings record of more than one individual but may be actually paid on only one of such earnings records for a particular month.
In accordance with section 202(k)(2)(A), that benefit payment was based on the earnings of his stepfather since those earnings enabled him to receive what would generally be the larger benefit. However, during his period of simultaneous entitlement, the child has received the advantage of a combined family maximum whenever reductions prescribed by section 203(a) of the Act would be applicable to his benefit payments.
Section 203(a)(1) provides an exception in family maximum reductions for individuals who, but for the provisions of section 202(k)(2)(A), would be paid child's insurance benefits on the earnings records of more than one individual. Under such circumstances, the maximum amounts of benefits payable on the basis of the earnings records of all such individuals may be combined although the total may not be higher than a prescribed limit.
Thus, while the child's benefit amount is based on the earnings of his stepfather under section 202(k)(2)(A), reductions under section 203(a) have been based on a combined maximum which is the sum of the maximums applicable to the earnings records of both the stepfather and the natural father. In this limited respect, the earnings of the child's deceased natural father have affected the amount of his benefit payment.
The specific issue raised is whether the increased amount payable to the child through the application of a combined family maximum may be considered to be "benefits . . . payable on the basis of . . . [the insured] individual's wages and self- employment income" for purposes of section 202(g)(1)(F)(ii). To resolve this issue it is concluded, for the reasons below, that the surviving divorced mother may qualify for benefits on the basis of her son's entitlement to benefits on the earnings record of her former spouse regardless of whether the son is actually being paid on that earnings record, pursuant to section 202(k)(2)(A), or whether a combined family maximum, determined in part on the basis of such spouse's "maximum," is applicable under section 203(a)(1).
Section 202(g)(1)(E) provides, in pertinent part, that in order to be entitled to mother's insurance benefits, it is enough that the claimant have in her care a child of the worker "entitled to a child's insurance benefit." Section 202(g)(1)(F) prescribes that the child in the care of a "surviving divorced mother" must be her "son, daughter, or legally adopted child" and the benefits to which that child is entitled must be "payable" on the basis of her divorced spouse's earnings.
While section 202(g)(1)(F) requires that the benefits of the child of the surviving divorced mother by "payable" on the basis of the earnings of the former spouse, "payable" in this context may be interpreted to mean "entitled to benefits" on the basis of such spouse's earnings record. The literal meaning of the word "payable" in this context is that benefits "may" or "can" be paid and not that they are actually being paid. This definition of "payable" corresponds to the meaning of the word "entitled" as the latter word is ordinarily used in the Social Security Act. Neither the word "payable" nor any other language in section 202(g)(1)(F) clearly evidences an intent by Congress to require the child of a surviving divorced mother to actually be paid benefits on the earnings of the former spouse under e.g. section 202(k)(2)(A).
An interpretation of "payable" which would entitle only those claimants whose children are actually being paid benefits on the basis of the claimant's deceased former spouse's earnings, would tend to weaken the protection afforded by section 202(k)(2)(A) for those simultaneously entitled children whose mothers are "surviving divorced mothers." Section 202(k)(2)(A) generally permits simultaneously entitled children to receive the most advantageous benefit amount of two or more possible amounts. If a restrictive interpretation of "payable" were applied, a child who could be entitled to benefits on two earnings records might have to limit his application for benefits to the earnings record which would provide him with a lower benefit amount solely to enable his mother to become entitled to mother's insurance benefits. Under the facts here, the mother could not become entitled to benefits unless the child withdrew the application for benefits on his stepfather's earnings record and limited his second application solely to his natural father's earnings record. Nothing in the legislative history of section 202(g)(1) suggests that Congress intended that result.
Accordingly, a "surviving divorced mother" may qualify for mother's benefits if her child is entitled to benefits on the earnings record of the claimant's former husband regardless of whether the child is actually being paid benefits based on that individual's earnings, under section 202(k)(2)(A).
Back to Table of Contents