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April 26, 1976

I. V. PATTERSON, Individually, and on behalf of the Estate of his Deceased wife GUSSIE M. PATTERSON, as administrator thereof, and on behalf of all other persons similarly situated, Plaintiff,
DAVID MATHEWS, Individually and in his official capacity as Secretary of the Department of Health, Education and Welfare of the United States, Defendant

The opinion of the court was delivered by: SNYDER

 This is an action in which the Plaintiff, I. V. Patterson, challenges on Due Process and Equal Protection bases the constitutionality of a portion of the Social Security Act relating to disability benefits, 42 U.S.C. Section 1383(b) (Title XVI, Section 1631(b)) *fn1" and 20 C.F.R. § 416.542, *fn2" the effect of which, he claims, is to preclude the spouse and the estate of a deceased recipient from collecting or retaining the Supplemental Security Income benefits (hereinafter SSI) accrued but not paid to the decedent wife during her lifetime. He sues individually and on behalf of the estate of his wife, as the administrator thereof, and on behalf of all other persons similarly situated. Both parties have moved for Summary Judgment.


 In January of 1975, the Plaintiff, as a wage earner, and his wife filed for Title II disability benefits. On March 6, 1975, the Social Security Administration denied their respective claims because the husband did not meet the disability requirements and therefore his wife's claim was also unacceptable. Mrs. Patterson filed a timely request for reconsideration of the decision and also filed an application for Title XVI benefits. Mrs. Patterson was determined to be eligible for benefits in April of 1975 but, prior to receiving any payments, Mrs. Patterson died on June 15, 1975. On July 29, 1975, a check was issued by the Social Security Administration to Gussie M. Patterson in the amount of $1,505.70. On August 1, 1975, another check was issued to Gussie M. Patterson for $177.70. Both of these checks were received by the Plaintiff. Mr. Patterson notified the Social Security Administration of his wife's death and was orally directed to return the checks since they could not be issued to her estate, and could not be issued to the Plaintiff due to his ineligibility under 42 U.S.C. § 1382 c(b). *fn3" On October 14, 1975, Plaintiff took out Letters of Administration on his wife's estate.

 We are met at the outset with the rule of law which provides that this Court has jurisdiction only when administrative remedies have been exhausted (42 U.S.C. § 405(g)). However, in this case the Plaintiff on September 18, 1975 formally requested consideration of his entitlement to the lump sum payment by the District Office, the General Counsel of the Social Security Administration, and the Secretary of Health, Education and Welfare. On September 29, 1975, the Office of the General Counsel refused to rule on Plaintiff's request. On October 10, 1975, the Secretary, through the Commissioner of the Social Security Administration, responded to Plaintiff's request, setting forth the opinion of the Secretary to the effect that any variance from the plain meaning of 42 U.S.C. § 1383 and 20 C.F.R. § 416.542 was not within the discretion of the Secretary, and ruling that the Plaintiff would not be entitled to keep the payments. In light of this, the Stipulation of counsel that "it would be futile for named-plaintiff, I. V. Patterson, to exhaust further administrative remedies under the Social Security Act with respect to his alleged entitlement, or the alleged entitlement of his deceased wife's estate, to Supplemental Security Income benefits due his wife, Gussie M. Patterson, prior to her death," is entirely proper.

 Jurisdiction is then found under Section 1631(c)(3) and 205(g) of the Social Security Act, 42 U.S.C. § 1383(c)(3) and 405(g), to review the constitutionality of both 42 U.S.C. § 1383(b) and of Regulation No. 16, 20 C.F.R. § 416.452. Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975); Johnson v. Robison, 415 U.S. 361, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974). This proposition is manifestly reasonable since the Secretary has had the opportunity prior to constitutional issue litigation to ascertain that the particular claims involved are not valid for other reasons, or are not allowable under other provisions of the Social Security Act. Weinberger v. Salfi, supra.


 The Plaintiff's contention is that the Statute creates two classes of individuals -- eligible and ineligible -- for in the event that a recipient dies before the amount due to said recipient is paid, the amount of the payment can be made only to a surviving spouse who is eligible for SSI benefits and who is living with the recipient at the time of death.

 20 C.F.R. § 416.452 also provides (See Footnote 2):

". . . No underpayment may be paid to the estate of any underpaid recipient, the estate of the surviving spouse, or to any survivor other than the living-with eligible spouse."

 It is alleged by the Plaintiff that the effect of these provisions operates to deprive him of accrued property which rightfully belongs to the estate of his deceased wife. *fn4"

 At this point, we must look to the history of the Supplemental Security Income benefits. These supplemental benefits were established to administer Federal cash assistance payments to needy persons who were aged, blind, or disabled. SSI replaced the State administered assistance programs for those aged, blind, or disabled with a federal minimum guaranteed income program administered by the Social Security Administration.

 Those States whose level of assistance to the aged, blind, or disabled under prior programs which were higher than the Federal minimum were required by Title II, Section 12 to provide a "mandatory state supplement" to those prior recipients' monthly assistance grant, so that they would not be harmed by the advent of the SSI Program. The Commonwealth of Pennsylvania supplements SSI benefits with payments in the amount of $20 for individual recipients and $30 for couples.

 Under 42 U.S.C. § 1382a (b) the amount of benefits under SSI depends on whether the recipient is an "individual" or is an "individual with an eligible spouse". Here, the Social Security Administration determined that the husband was ineligible, but ruled that his wife was an eligible "individual". Because the husband and wife had a low level of income, the deceased was considered by the Social Security Administration to be a needy person eligible for SSI by virtue of disability.

 Plaintiff contends that the non-discretionary application of 42 U.S.C. § 1383(b) and its implementing regulation, 20 C.F.R. § 416.452, required denial of payment of the accrued benefits of the deceased recipient to the Plaintiff even though the deceased was ...

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