a hearing held on September 10, 1947, at which time the referee ruled that under the Social Security Act, plaintiff and her children, Anthony and Ruth, were not entitled to monthly insurance benefits until the filing of an application, on January 4, 1946, which therefore, could only be made retroactive to October 1945.
The issue before the court now is whether plaintiff and her two children are entitled to benefits only retroactive to October 1945, as determined by the referee, or are they entitled to benefits beginning March 1940.
Section 202(h) of the Social Security Act, 42 U.S.C.A. § 402(h) states: 'An individual who would have been entitled to a benefit under subsection (b), (c), (d), (e), or (f) for any month had he filed application therefor prior to the end of such month, shall be entitled to such benefit for such month if he files application therefor prior to the end of the third month immediately succeeding such month.'
The Congressional Committee Reports explain this section of the act as follows: 'Delayed applications.'
'Section 202(h). This subsection provides that an individual who would have been entitled to an insurance benefit under subsection (b), (c), (d), (e), or (f) of this section for any month, if he had filed his application for such benefit during such month, shall be entitled to such benefit for such month if he files application for it before the end of the third month immediately succeeding such month. The purpose of this section is to prevent the loss of benefits to individuals who might not know of their right to benefits or who, for some other reason, have delayed filing their applications. If, for example, in March a widow has fulfilled all eligibility conditions under Section 202(d) except the filing of her application, and files application in June, she will be entitled to a benefit for March, April, May, June and thereafter, as if she had filed her application in March. Similarly, if she files application in July, she will be entitled to a benefit for April, May, June, July, and thereafter, just as if she had filed her application in April.'
It is clear Congress intended that an application would be a condition precedent to the right to benefits under the act, and an applicant, until an application has been filed, would be entitled only to the retroactive period of three months given to the application by the statute on filing of the delayed application. Hence, the plaintiff and the two children entitled to insurance benefits have received all to which they were entitled. This construction is sustained by the Court of Appeals for the 10th Circuit in the recent decision of Ewing v. Risher, 176 F.2d 641.
The other two children, Stephanie and Josephine, have failed to pursue their administrative remedy, and therefore are not entitled to relief in this court.
Defendant's motion for summary judgment is granted. An order may be entered.
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