20 CFR 416.1121(a) and 416.1124
The issue is whether that portion of the claimant's Old-Age Insurance Benefits which is allocated for satisfaction of a garnishment order is excludable from unearned income in determining his eligibility for SSI benefits.
The claimant, who was born August 24, 1914, applied for SSI benefits on August 15, 1980. When SSA determined that the claimant was ineligible for SSI benefits because he had excess countable income, the claimant appealed contending that he was no longer able to meet his living expenses without additional help.
The claimant testified that when he and his wife were divorced in 1970, she was granted custody of his daughter, Under the provisions of the property settlement agreement, the claimant's ex-wife was given their home, their $10,000 bank account, and large sums of personal property, including an automobile. In addition, the claimant was ordered to pay $80 per month for the support of his daughter. He began making those payments in 1970 but ceased making them in 1971 when his ex-wife disappeared and he learned that she had changed his daughter's surname to that of her new husband. The claimant later became entitled to both Old-Age Insurance Benefits and a VA pension, and his daughter became entitled to Child's Insurance Benefits on his earnings record.
The claimant had neither spoken to his ex-wife since their divorce nor received any communication regarding the nonpayment of child support until April 1980. At that time, a money judgment, dated April 22, 1980, in the amount of $12,859.50 was entered against the claimant for retroactive child support payments, interest, and costs. On July 23, 1980, the claimant was informed by SSA that it had been served with a garnishment order on June 2, 1980 in execution of the money judgment against him and that it would begin withholding 50% of his Social Security benefits to satisfy the order.
The claimant does not challenge the existence or amount of the debt, and he does not question his legal obligation to repay it. He does dispute, however, the inclusion of his Social Security benefits before garnishment, rather than the amount after garnishment, as income for purposes of determining his eligibility for SSI benefits. If the amount of the reduction of the claimant's Social Security benefits due to garnishment was excluded in determining his countable income, he would be eligible for SSI benefits. The claimant also contends that he should be relieved of his ongoing child support obligation because the $80 to be paid each month for his daughter's support is more than offset by the Child's Insurance Benefits she receives on his earnings record.
Section 459 of the Act provides, in pertinent part, that Social Security benefits may be garnished to enforce an individual's legal obligation to provide child support or alimony.
Section 1612(a)(2)(B) of the Act and § 416.1121(a) of Regulations No. 16 provide that Social Security benefits and veteran's pensions constitute unearned income. The various exclusions from unearned income are contained in section 1612(b) of the Act and § 416.1124 of Regulations No. 16.
Neither the law nor the regulations provide for the reduction of income because of garnishment. Since the amount of the claimant's Social Security benefits before garnishment constitutes unearned income, he is ineligible for SSI benefits because of his excess income.
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