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VARGO v. SECRETARY OF HHS

July 24, 1995

GEORGE M. VARGO, Plaintiff,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.



The opinion of the court was delivered by: LARIMER

 Plaintiff, George M. Vargo, pro se, commenced this action pursuant to § 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 405(g), to review a final determination of the Secretary of Health and Human Services ("the Secretary") denying his application for retroactive widower's insurance benefits from the period between September 9, 1989 and July 1991. Pending before the Court is the Secretary's motion pursuant to Fed. R. Civ. P. 12(c) for judgment on the pleadings. For the reasons that follow, the Secretary's motion is granted, the final determination of the Secretary is affirmed and the complaint is dismissed.

 BACKGROUND

 The following facts are undisputed. On July 16, 1991, plaintiff filed an application for retirement insurance benefits under the Act based on his earnings record. On August 16, 1991, plaintiff filed an application for widower's insurance benefits, based on the earnings record of his first wife, who died on October 15, 1962. The widower's insurance benefits application was given a protective filing date of July 16, 1991, the date that plaintiff had applied for retirement benefits.

 Plaintiff was granted widower's benefits from July 1991 through September 1991, at which time he began to receive his retirement benefits, since he turned 62 years of age that month and the amount of his retirement benefits was greater than the amount of his widower's benefits.

 In August 1986 plaintiff had requested and received a "Social Security Estimate of Benefits" ("the estimate") which showed the monthly amount of benefits plaintiff could expect to receive if he retired at age 62 or age 65. (AR *fn1" 51). The estimate did not reflect the possibility that plaintiff would be entitled to widower's benefits.

 On August 16, 1991, plaintiff claims that he was alerted by an unsolicited telephone call from the Social Security office that he could have been receiving widower's benefits since he turned 60 on September 9, 1989. (AR 15-16).

 On August 16, plaintiff filed a claim for those widower's benefits. The claim was granted in part and denied in part. Benefits were granted from July 1991 but were denied from September 9, 1989 until July 1991. Plaintiff's request for reconsideration was denied.

 Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") on July 9, 1992. That request was granted and a hearing was set for November 25, 1992, before ALJ John R. Tarrant. Plaintiff appeared at the hearing pro se and testified. ALJ Tarrant issued a written decision denying plaintiff's request for widower's benefits from September 9, 1989 through June 1991.

 ALJ Tarrant determined that because plaintiff "did not receive or rely on information which was incorrect, incomplete or misleading," from an employee of the Social Services Administration and because plaintiff was not age 65 and entitled to unreduced widower's benefits on July 16,1991, the protective filing date of his widower's benefits claim, plaintiff's application could not be considered retroactively. See 42 U.S.C. § 402(j)(4-5). Therefore, plaintiff was only entitled to benefits prospectively commencing July 1991. (AR 15).

 That decision became the final decision of the Secretary when the Appeals Council declined to review Vargo's appeal on March 18, 1994.

 Plaintiff commenced this action pro se on ...


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