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BARRY v. SHALALA

December 23, 1993

KEVIN BARRY, SS# 156-46-2830, Plaintiff,
v.
DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: SHIRLEY WOHL KRAM

 SHIRLEY WOHL KRAM, U.S.D.J.

 This is an action to review a decision of the Secretary of Health and Human Services (the "Secretary") denying plaintiff's claim that the money he received from panhandling be excluded in calculating the amount of his disability benefits. Both parties moved for judgment on the pleadings and, on February 8, 1993, the matter was referred to Magistrate Judge Kathleen A. Roberts for Report and Recommendation.

 BACKGROUND2

 Plaintiff Kevin Barry ("Barry") is a disabled individual who suffers from paralysis of his dominant right arm, a personality disorder and organic brain syndrome resulting from a history of drug abuse. In March 1990, Barry applied for Supplemental Security Income ("SSI") based on disability. From the time of his application and through August 1990, Barry supported himself by walking down a line of cars stopped at a traffic light at Triangle Park in the Bowery on a daily basis and asking people for money. As a result of these panhandling activities, Barry earned $ 250 per month.

 Although his application for disability benefits initially was denied, upon reconsideration the Secretary determined that Barry had been disabled since March 1, 1990, and granted his application for benefits. In calculating the amount of plaintiff's retroactive SSI benefits, however, the Secretary treated plaintiff's income from panhandling as "unearned" income, and therefore reduced the amount of monthly benefits by $ 230 dollars, reflecting plaintiff's monthly panhandling income minus the $ 20 general income disregard set forth in the Social Security Act (the "Act") and Regulations. See 42 U.S.C. § 1382a (b)(2)(A). This calculation was affirmed on reconsideration on January 18, 1991. Subsequently, on September 10, 1992, the Administrative Law Judge ("ALJ") upheld the Secretary's calculation, finding that the money plaintiff collected from panhandling was unearned income. *fn3" This decision became the final decision of the Secretary on August 13, 1992, when the Appeals Council denied plaintiff's request for review.

 DISCUSSION

 I. Standard of Review

 The Report accurately sets forth the standard of review of the Secretary's decision. See Report at 8. Section 205(g) of the Social Security Act provides that: "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). *fn4" "This deferential standard of review is inapplicable, however, to the Secretary's conclusions of law. 'Where an error of law has been made that might have affected the disposition of the case, this Court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ.'" Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (quoting Wiggins v. Schweiker, 679 F.2d 1387, 1389 n.3 (11th Cir. 1982)).

 II. The Social Security Act and 1972 Amendments

 
1. An income source for the aged, blind, and disabled whose income and resources are below a specified level; 2. Incentives and opportunities for those able to work or to be rehabilitated that will enable them to escape from their dependent situations; and 3. An efficient and economical method of providing this assistance.

 H.R. Rep. No. 231, 92d Cong., 2d Sess., reprinted in 1972 U.S.C.C.A.N. 4989, 5133. The amount of benefits provided to eligible individuals is determined on the basis of the individual's current income, and is calculated by subtracting the individual's ...


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