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WIDERMANN v. RICHARDSON

May 21, 1971

Persis S. WIDERMANN, Plaintiff,
v.
Elliott L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant


Travia, District Judge.


The opinion of the court was delivered by: TRAVIA

MEMORANDUM-DECISION AND ORDER

TRAVIA, District Judge.

 This action comes on before the Court on plaintiff's motion for summary judgment and defendant's cross motion for summary judgment under Rule 56, Fed. R. Civ. P.

 In this case, plaintiff seeks judgment directing the defendant to pay Child's insurance benefits under 42 U.S.C. § 402(d) for a period in 1965 and Widow's insurance benefits under 42 U.S.C. § 402(e) for a period in 1964 and 1965.

 The Social Security Administration (hereinafter the "Administration") did not award plaintiff the benefits claimed, apparently since they related to months prior to March 1966, the first month for which plaintiff's March 1967 application was effective. On reconsideration, the Administration adhered to its previous determination. At plaintiff's request, a hearing was held on March 20, 1970 at which plaintiff was present. After reviewing the evidence, the hearing examiner ruled that plaintiff was not entitled to benefits prior to March 1966. (A copy of the examiner's decision, rendered on March 31, 1970, is contained at pp. 6-9 of the Record). The Appeals Council declined to review the examiner's decision and that decision became the "final decision" of the Secretary. 42 U.S.C. § 405(g).

 This Court has thoroughly reviewed the complaint in this action filed on June 11, 1970, the answer of the defendant filed in this Court on October 7, 1970, the entire transcript of the record of proceedings relating to the claims of the plaintiff held by the Administration, the motion papers and lengthy memoranda in support of plaintiff's application for summary judgment, and the defendant's cross motion and supporting memorandum for summary judgment.

 After hearing oral argument, researching all cited cases and independently reviewing the relevant sections of the Social Security Act (hereinafter "the Act"), the Court finds for the defendant on his motion for summary judgment on the ground that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Thus, plaintiff's motion for summary judgment is denied and her complaint is dismissed.

 The issue is whether the Secretary's decision conforms to the applicable law and is supported by substantial evidence. (Government's Memo of Law, p. 9). The issue is not, as plaintiff contends, whether she is entitled to certain benefits prior to March 1966. (Plaintiff's Memo, p. 7).

 It is undisputed that plaintiff did not file an application as defined in § 404.601(c) of the Regulations until March 1967, since she did not file an application on a form prescribed in Reg. § 404.602. Thus, under 42 U.S.C. § 402(j)(1) limiting the retroactive effect of an application to twelve months, plaintiff's claim for benefits prior to March 1966 appears to be without merit. Plaintiff, however, makes several arguments to overcome this seemingly obvious result.

 Plaintiff maintains that numerous letters and statements from her and her husband to the Administration, which letters and statements were written or made prior to March 1967, constitute proper applications. (Plaintiff's Memo, pp. 8-18 details such correspondence). To overcome the effect of the Regulations (§§ 404.601(c) and 404.602) requiring a "formal" application, plaintiff relies on § 404.601(d) of the Regulations which makes exception to the "formal" application requirements of § 404.602. The exception, contained in § 404.613 provides that certain written statements *fn1" may constitute the filing of an application, provided, inter alia, a "formal" application (Reg. § 404.602) is filed within 6 months. This 6 month period begins to run after the Administration notifies the applicant that a determination will be made if the applicant files a "formal" application within 6 months. Reg. § 404.613(c).

 Since the Regulations clearly provide that only written statements will be considered as "informal" applications, plaintiff's reliance on oral statements is misplaced. As to plaintiff's written "informal" statements, her claim also fails. Even assuming them to be applications for purposes of § 404.613, no "formal" statement was filed until March 1967, more than 6 months after the "informal" applications.

 Although the Administration did not notify the plaintiff as prescribed in § 404.613(c), so as to commence the running of the 6 month period within which "formal" applications must be filed, such failure is excusable here in light of plaintiff's signed statement of April 20, 1965 and the other circumstances set forth in this decision.1a

 In the statement of April 20, 1965, the plaintiff wrote:

 
"I do not wish to file any claim at this time * * *. I will defer doing this until such time as the court matter is finally settled." ...

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