20 CFR 416.542(b)

SSR 76-10

The supplemental security income recipient lived in a nursing home more than three years prior to her death. Her husband filed as her representative payee and also received a supplemental security income payment as an eligible individual. The claimant died before receiving any payments. Her husband claimed that all due monies should be paid to him Held, the law is quite definite in listing when and to whom an underpayment may be made. Although the husband is an eligible individual, he was not living with the claimant at the time of her death and does not meet the requirements of Regulations No. 16, § 416.542(b).

The general issue to be determined is whether the husband is an eligible recipient of supplemental security income underpayments due his deceased wife.

The specific issue on which findings will be made and conclusions will be reached, is whether the surviving husband is an eligible member of a couple to receive the benefits due his deceased wife who, at the time of her death, was a resident of a nursing home in which he did not reside.

On November 26, 1974, the husband filed an application for himself and as a representative for his aged and disabled wife. She had been confined to a nursing home since June 2, 1971. According to the husband's testimony, his and his wife's savings were used to maintain her in the nursing home, and there was no assistance from Federal or State funds. He and his wife, prior to her need for care in the nursing home, had maintained a home together since their marriage on December 18, 1910.

His claim for benefits was processed expeditiously, and he commenced receiving payments with a monthly check about January 1, 1975, and a retroactive benefit check thereafter on January 6, 1975. On January 7, 1975, he inquired regarding his wife's supplemental security benefits which had not yet been received. On January 19, 1975, she passed away. On January 21, 1975, the surviving spouse filed a claim for the amounts due in the case of his deceased wife.

On January 22, 1975, he was advised by letter from the Social Security Administration that:

Section 1631(b) of the Social Security Act provides that money due a supplemental security income recipient who dies may be paid only to the deceased individual's surviving husband or wife who was also a supplemental security income recipient in the month the deceased individual died and was receiving benefits as a spouse. If there is no such surviving husband or wife, the payment due the deceased recipient cannot be made to anyone.

On January 28, 1975, he was sent a further letter from the Social Security Office, stating that his wife was eligible to receive the supplemental security income payment.

On his request for reconsideration, the reason for reconsideration was:

"According to your notice of January 22, 1975, this indicates I'm to receive my wife's ""SSI checks for November '74 through January '75. Yet when I went to Soc. Sec. office they told me I couldn't get her back pay."

A Notice of Decision letter was sent advising him that:

"As you requested, your claim for the supplemental security income underpayment has been thoroughly examined.
A supplemental security income underpayment due on behalf of a deceased individual by law is generally payable only to the surviving eligible spouse. To receive a supplemental security income payment due a deceased member of a couple, the surviving member must meet requirements for eligibility as a member of a couple for the month of death.
For the month of death, you met requirements for eligibility as an individual but did not meet the requirements for eligibility as a member of a couple. Therefore, the payment due your wife cannot be made to anyone."

The first letter to the husband, dated January 22, 1975, was incomplete in that it did not specify that the surviving spouse had to be living in the same household with the deceased spouse at the time of death in order to qualify for the unpaid benefits. This omission was covered in the Notice of Decision letter of February 24, 1975.

On February 25, 1975, the spouse signed a request for hearing which stated:

I don't feel that this is an underpayment, I feel it was a back payment. Her application and my application were filed on the same day in 11/74. I rec'd my initial payment 1/1/75 and on 1/6/75, I received my back payment for 11/74 and 12/74.

The deceased wife was not receiving Title XIX Medicaid and was not in a public institution. She was entitled to supplemental security income benefits to supplement her Title II social security payments.

After careful consideration of the evidence in this case, it is clear that because of the care she required, the deceased wife was in a private nursing home from June 2, 1971, until the date of her death on January 19, 1975. Although their separation was not due to marital difficulties, they were, in fact, living in separate households from each other at the time of her death. The social security office correctly took two applications from the husband when he filed applications on November 26, 1974. The benefits payable to each eligible individual living in a separate household is greater than the benefits paid to the two as a couple. Had the wife lived, she and her husband would have received more benefits over a period of time as eligible individuals than they would have as an eligible couple. This may well be the legislative reason that the surviving spouse of an eligible couple is entitled to receive the unpaid benefits of his deceased spouse.

The supplemental security income program is a creature of statute, and the administrative law judge must be guided by the legislation and regulations pertaining to the creation of the program. As inequitable or unfair as it may appear to the surviving spouse that his wife's application was not as promptly processed and paid as his, nonetheless, delay did occur, and because they were living separately when she died on January 19, 1975, he is not eligible to receive her unpaid benefits.

It is the decision of the administrative law judge that the underpayment due the deceased individual cannot be legally paid to her surviving spouse because they were living in separate accommodations at the time of her death, and he did not meet the requirements of Section 416.542(b) of Regulations No. 16.

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