The issue is the continued entitlement of a deemed widow(er) residing in the second circuit when the legal widow(er) is entitled on the same earnings record.

The Court of Appeals held that Section 216(h)(1)(B) of the Social Security Act, which requires terminating the benefits of a deemed widow(er) if a legal widow(er) becomes entitled, applies only when the legal widow(er) could receive the full widow(er)'s benefit. Under Rosenberg and Capitano, a deemed widow(er) will receive the difference between the full widow(er)'s benefit (after reduction for age but before the reduction for a benefit based on his or her own earnings) and the widow(er)'s benefit actually payable to the legal widow(er) after subtracting the legal widow(er)'s own Retirement Insurance Benefit (RIB)/Disability Insurance Benefit (DIB).

The procedures in this section apply to benefits payable prior to January 1991 to any entitled deemed widow(er) residing in:

• •

  States of Connecticut, New York, or Vermont at the time the determination is made on the legal widow(er)'s claim for widow(er)'s benefits; OR

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  Any other State at the time the legal widow(er) files a claim and the deemed widow(er) becomes a resident of Connecticut, New York, or Vermont before a final decision is reached on the legal widow(er)'s claim.

AND

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  The legal widow(er) files a claim for benefits on or after January 23, 1986; OR

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  The legal widow(er) files a claim for benefits before January 23, 1986 and did not exhaust his or her appeal rights before January 23, 1986.

1. a. 

   If the deemed widow(er) no longer lives in the Second Circuit, we will not suspend or terminate benefits paid based on applying this ruling.

2. b. 

   All deductions, nonpayment and terminating events apply to the deemed widow(er)s entitled under this ruling as listed in RS 00207.002.

AR 86-2R(2): Rosenberg v. Richardson, 538 F.2d 487 (2d Cir. 1976); Capitano v. Secretary of HHS, 732 F.2d 1066 (2d Cir. 1984) — Entitlement of a Deemed Widow When a Legal Widow is Entitled on the Same Earnings Record — Title II of the Social Security Act, Rosenberg v. Richardson, 538 F.2d 487 (2d Cir. 1976)

Take the following actions:

1. a. 

   Request an MBR if:

   • •

     a claimant entitled to an RIB/DIB files for widow(er)'s benefits; or

   • •

     a claimant files concurrently for RIB/DIB and widow(er)'s benefits.

2. b. 

   Process the widow(er)'s claim according to current dual entitlement instructions if the MBR shows no other individual is entitled as a widow(er).

3. c. 

   Forward to the PC unadjudicated, a claim for widow(er)'s benefits if the MBR shows a widow(er) is currently entitled. Include the relationship development and a copy of the claimant's own MBR.

4. d. 

   Forward to the PC completely adjudicated, concurrent claims for deemed and legal widow(er)'s benefits after undertaking full development, including the relationship determination. Treat the claims as adverse adjustments. Include a disallowance, if appropriate. Show:

   • •

     non-DOFA, code RV-19;

   • •

     deemed widow(er) on form A-101 or EF-101, (Determination of Award) entitling the legal widow(er); and

   • •

     the remark, “Rosenberg Acquiescence Ruling.”

NOTE: For benefits payable 1/91, see Widow(er)’s Benefits Definitions and Requirements RS 00207.001A.3.

Take the following action:

Claims Authorizer:

• •

  Review or make the determination as appropriate;

• •

  Apply the benefit rate formula in this instruction; and

• •

  List cases adjudicated according to these procedures under code “534 Rosenberg Acquiescence Ruling.”

Benefit Authorizer:

• •

  Summarize the legal widow(er)'s and the deemed widow(er)'s award where necessary;

• •

  Adjust the deemed widow(er)'s rate as instructed on the A-101 or EF-101 if the deemed widow(er) is currently entitled; and

• •

  Flag the legal widow(er)'s “A” and “D” (or “W”) folders “2nd Circuit Rosenberg Acquiescence Case, any change in the benefit rate of the legal widow(er) requires an adjustment to the deemed widow(er)'s rate.” Annotate the related claim number.

When a legal widow(er) files a claim that will require an adverse adjustment in the benefits of the deemed widow(er), follow the procedures in Delayed Claims and Field Office (FO) Actions GN 01010.140.

1. a. 

   When the deemed widow(er)'s benefit is reduced to zero, request an MADCAP category D notice. Use the following language for the suspension reason: “This is because another person is now entitled to the benefits you were receiving. If you are due payments later, we will tell you then.”

2. b. 

   In all other cases, request an MADCAP category A notice and MADCAP paragraph ADJ027.

Suspend the deemed widow(er)'s benefit pending the receipt of the legal widow(er)'s disability determination.

Reinstate the deemed widow(er)'s benefits computing the benefit rate as described in section E.

Terminate the deemed widow(er)'s benefits effective with the month before the month the legal widow(er)'s award on the deceased number holder’s (DNH) record received approval.