The opinion of the court was delivered by: BRUCHHAUSEN
Both the plaintiff and defendant move for summary judgment. The facts are not in dispute. The sole issue is one of law.
This action was instituted for review of a final decision of the Secretary of Health, Education and Welfare, pursuant to 42 U.S.C. 405(g).
On February 3, 1956, the plaintiff, Alice J. Kurz, filed with the Social Security Administration, hereinafter called the Administration, and application, hereinafter called the first application, for Survivor's Insurance Benefits. In the application, she stated that her husband, Paul H. Kurz, the deceased wage earner, died on January 2, 1956; that they were divorced; that two children were born of the union; that she was not living with him at the time of his death and that he was neither contributing to her support nor under any court order to do so. On May 18, 1956 the Administration informed the plaintiff in writing that her application was denied. The pertinent portion of the determination as stated therein is as follows:
'The Social Security Act provides that a widow must have been living with her spouse at the time of death in order to qualify for monthly benefits. A person is considered to be living with her spouse if they were living together as members of the same household, or the spouse was making regular contributions towards the person's support or had been ordered by a court of competent jurisdiction to contribute to the person's support and such order was in full force and effect at the prescribed time. Our records show that you do not meet any of these requirements. Therefore, you are not entitled to monthly benefits.'
The plaintiff did not contest this determination. She made no request for reconsideration nor did she appeal.
At the time of filing the said first application, the Social Security Statute, particularly Section 402(b)(1)(C) of Title 42 U.S.C. provided that a wife was not entitled to insurance benefits unless she 'was living with such individual (her husband) at the time such application was filed.'
The said provision was repealed by an amendment, effective August 30, 1957.
The Administration under date of July 21, 1961 wrote the plaintiff, as follows:
'The Social Security Act has been amended permitting payment of monthly benefits to a widow with a child in her care even though she was not living with her husband at the time of his death. 'As you may qualify for monthly benefits, complete and return, promptly, the enclosed application.'
On September 11, 1961, the plaintiff filed a second application, similar in form to the first application filed by her in February 1956.
On October 6, 1961, the Administration ruled on the second application and awarded the plaintiff a monthly benefit of $ 83.30, retroactive to September 1, 1960 and paid to her at that time the sum of $ 1,082.90, covering the period from September 1, 1960 to October 1, 1961.
The plaintiff applied to the Administration for reconsideration of said determination. In its affirmance thereof, dated November 30, 1961, were contained the following statement:
'Benefits may * * * be paid for as many as twelve months before the application is actually filed. * * * Authority: ...