20 CFR 404.321(d)

SSR 73-18c

Judkins v. Richardson, Civ. No. 72-62, U.S.D.C., D. Ore. (9/21/72) (CCH U.I.R. Fed. Par. 16,903)

Where plaintiff, disabled daughter of deceased worker, was married at age 20 to an old-age insurance beneficiary prior to establishing her entitlement to child's insurance benefits, held, while such a marriage would not terminate benefits to an already entitled child under section 202(d)(5) of Social Security Act, such a marriage does preclude initial entitlement since under section 202(d)(1)(B) child must be unmarried at time of filing of application.

BELLONI, District Judge:

Plaintiff, Dixie L. Judkins, filed this action to review, the final decision of the Secretary of Health, Education and Welfare, who denied her claim for child's disability insurance benefits under the Social Security Act, 42 U.S.C. 405(g).

Plaintiff is the daughter of a deceased wage earner. In August, 1966, at age 20, she married Earl E. Judkins, a social security beneficiary, who is now 63 years old. On June 4, 1969, an application was deemed filed on her behalf for child's insurance benefits based upon disability. The finding that plaintiff is disabled is not in dispute. She is mentally retarded.

The issue is whether the plaintiff, who was married at the time of her application may qualify for child's insurance benefits under 42 U.S.C. § 402(d).

The hearing examiner found that the plaintiff, who is otherwise entitled to these benefits, is not entitled to receive them because of her failure to meet the eligibility requirement of being unmarried at the time her claim was filed.

The applicable statute is clear. 42 U.S.C. § 402(d) provides for the payment of child's insurance benefits to:

(1) Every child . . . of an individual entitled to old-age or disability benefits . . . if such child --
(A) has filed application for child's insurance benefits,
(B) at the time such application was filed was unmarried and . . . (ii) is under a disability . . .which began before he attained the age of 18. . . .

Plaintiff contends that the fact that she is married does not disqualify her for benefits because she falls within an exception provided in 42 U.S.C. § 402(d)(5) as follows:

In the case of a child who has attained the age of eighteen and who marries
(A) an individual entitled to benefits under subsection (a), (b), (e), (f), (g), or (h) of this section or under section 423(a) of this title, or
(B) another individual who has attained the age of eighteen and is entitled to benefits under this subsection,
such child's entitlement to benefits under this subsection shall, notwithstanding the provisions of paragraph (1) of this subsection . . . not be terminated by reason of such marriage. . . .

Unfortunately, she is not included within that exception because it applies only to termination of benefits rather than initial entitlement.

I would be pleased to find that the plaintiff is entitled to the benefits she seeks. The law, however, does not permit me to do so. To rule for the plaintiff would require me to legislate and not interpret statutes which are clear and unambiguous. If plaintiff's disqualification is the result of congressional oversight, this must be remedied by Congress and not the court.

I find no merit to plaintiff's contention that this result denies her due process and equal protection of the law.

The Secretary's decision must be affirmed.

This opinion shall constitute findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a).

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