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GOLDBERG v. WEINBERGER

April 1, 1976

LILLIAN GOLDBERG, Plaintiff,
v.
CASPAR WEINBERGER, Secretary of Health, Education and Welfare, Defendant



The opinion of the court was delivered by: PLATT

OPINION AND ORDER

 PLATT, D.J.

 PRELIMINARY STATEMENT

 Plaintiff sues for Social Security widow's insurance benefits and both parties have moved for summary judgment, the defendant seeking dismissal of plaintiff's complaint, and plaintiff seeking benefits in whole or in part, or, in the alternative, injunctive relief and a declaration that 42 U.S.C. § 402(e)(1)(A) and (B) and § 402(e)(4) are unconstitutional on the grounds that they arbitrarily discriminate on the basis of marital status and/or age.

 The dispute arises because the plaintiff, when she was a 59 year old widow receiving widow's disability insurance benefits, married her present husband about two months before she became 60 years of age. As a result of her remarriage before age 60, plaintiff became ineligible to receive (i) any more widow's disability insurance benefits, and (ii) any widow's insurance benefits under the Social Security Act. In fact, although she was not eligible therefor since she had remarried some two months prior to age 60, plaintiff did receive all of her widow's disability insurance payments up to the date when she attained that age, cf. 42 U.S.C. § 402(e)(1).

 The facts are not in dispute. Plaintiff was born on July 15, 1912 and attained the age of 60 years on July 15, 1972.

 Plaintiff was once married to a Mr. Murray Kaufman, who died. Thereafter plaintiff filed an application for widow's disability insurance benefits and received them beginning in 1969.

 Shortly before her remarriage, plaintiff, at the urging of her son, talked on the telephone with a representative in the local Social Security Office about the possible effects of her forthcoming marriage upon her disability benefits. She was informed that the marriage might reduce her benefits but would not terminate them. The Administrative Law Judge, in the proceeding below, gave "full credence to her testimony that she did consult the local Social Security Office prior to her marriage and that she was misinformed as to the effect of her contemplated nuptial arrangements upon the benefits she was receiving."

 Relying upon this information, plaintiff married her present husband, Mr. Goldberg, on May 21, 1972. In July 1972 plaintiff's Social Security benefits were terminated because she had remarried before attaining the age of 60.

 As indicated, plaintiff's 60th birthday was on July 15, 1972, 55 days after she remarried.

 The Administrative Law Judge made the following findings and conclusions:

 
"1. The plaintiff filed an application for widow's insurance benefits on March 10, 1969, alleging disability from February, 1969 at age 53.
 
"2. The claimant remarried in May, 1972, and attained age 60 on July 15, 1972.
 
"3. By remarrying prior to the attainment of age 60, the claimant lost her right to obtain widow's benefits on the earnings record of ...

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