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HERZBERG v. FINCH

January 15, 1971

Lorraine Seitz HERZBERG, Plaintiff,
v.
Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant


Edward Weinfeld, District Judge.


The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

These are cross-motions for summary judgment in an action brought pursuant to 42 U.S.C., section 405(g) to review a final decision of the Secretary of Health, Education and Welfare. There is no factual dispute and the parties agree that the matter is ripe for summary judgment disposition. The sole issue to be decided is one of statutory construction involving child's insurance disability benefits.

 Plaintiff was born in April 1931, and since May 1943, because of muscular dystrophy, she has been hospitalized at the Goldwater Memorial Hospital, New York City. In March 1962, she married Irwin Herzberg, also a muscular dystrophy patient, who had been at the same hospital since 1942. In January 1967, nearly five years after their marriage, the plaintiff filed an application for insurance benefits as a disabled child, based on the earning records of her father, who in 1964, upon his retirement, became eligible for Social Security benefits. Plaintiff's husband does not receive Social Security benefits, as neither his father nor mother has reached retirement age. *fn1"

 Plaintiff's application for child's insurance disability benefits was denied by the Regional Representative of the Social Security Administration upon the ground that she was married to a person not receiving Social Security benefits, and hence was not qualified on her father's earnings records. Upon plaintiff's request, a de novo hearing was conducted before an Examiner of the Bureau of Hearings and Appeals, who made a similar finding. Upon appeal, the decision was upheld, following which this action was instituted.

 The applicable statute is clear. 42 U.S.C., section 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 * * *."

 The one exception to the requirement that a claimant be unmarried is in the case of an otherwise qualified claimant who marries a person, himself entitled to receive child's insurance benefits, or otherwise entitled to Social Security benefits pursuant to specified provisions of the Act. Thus, it is provided in 42 U.S.C., section 402(d)(5):

 
"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 * * *."

 Plaintiff concedes she does not qualify within any of the specified sections. However, she emphasizes that the Social Security Act has been repeatedly and consistently held to be a remedial statute which must be broadly construed and liberally applied, *fn2" and that the courts must read obvious exceptions into the statute when necessary to effectuate its purpose on the theory that to do so carries out the legislative intent. *fn3" Plaintiff urges upon the court that the statutory provisions which exclude her because she was married undoubtedly were based upon a commonly accepted fact that a married individual generally becomes the dependent of a spouse able to provide support. Here, however, plaintiff stresses an unusual situation where an otherwise eligible disabled person marries another person, also disabled, who himself is not qualified for benefits under the Act. In this circumstance, it is urged, Congress could not have intended to deny a claim of child's insurance benefits simply because one disabled spouse does not qualify for benefits. Plaintiff's argument then proceeds that Congress would have provided for payments in this unique situation, and that such intent can be gleaned from the very provision that preserves a disabled child's right to benefits when married to a person entitled to a disabled child's ...


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