it, too, is a "nonliquid resource" under the Secretary's regulation.
Additionally, in full conformity with Cannuni, it is beyond doubt that due to plaintiff's powers under the C & P partnership agreement, and unlike the claimant in Cannuni, she both owns her partnership interest and has the current right to its beneficial use, including dissolution of the partnership or sale of the interest. Thus, even if the Secretary's definition of "resources" is ignored, and the focus is instead placed upon plaintiff's rights (the existence of which plaintiff has not disputed under North Carolina law, which governs the partnership, R. 113) under the partnership agreement, this Court would still conclude that the interest in C & P is a countable resource. It should be noted, however, that it is this Court's opinion that the Secretary's definition of "resources" applies to the facts of this case, and that the Secretary has properly applied this legal standard.
Finally, Navarro by Navarro v. Sullivan, 751 F. Supp. 349 (E.D.N.Y. 1990), also referenced in plaintiff's brief, lends no support to plaintiff's argument. In Navarro, claimant was the beneficiary of a medical malpractice settlement order which imposed specific limitations on the use of the settlement funds. Id. at 350. The Secretary had argued that because the admitted purpose of the use limitations specified in the settlement order was to prevent discontinuance of claimant's SSI benefits, the order could not bind the government, and hence the funds should have been considered resources. Id. The court simply found that the settlement order was binding on the Secretary, notwithstanding the purpose of its drafting, and that the limitations specified within it were such that the funds were not available for the claimant's support and maintenance. Id.
Navarro demonstrates a straightforward application of 20 C.F.R. § 416.1201(a), and is therefore consistent with this Court's determination that plaintiff's partnership interest is a countable resource. In Navarro the claimant had no legal right, authority or power, in terms of the Secretary's regulation, to utilize the settlement funds for support and maintenance. In contrast, the record in this action demonstrates unequivocally that plaintiff has the legal right to convert her partnership interest to cash, which could be used without restriction for her support and maintenance.
In summary, based on substantial evidence in the record as a whole, this Court cannot agree with plaintiff's first argument, that her one-fourth interest in the C & P partnership is not a resource, as the term is used within the Social Security Act. Accordingly, plaintiff has resources in excess of the statutory limitation of $ 2,000, as provided in 42 U.S.C. § 1382 (a), and is thus ineligible for SSI benefits.
B. The issue of Whether the Secretary Improperly Reopened the Initial Determination of Plaintiff's Eligibility
Plaintiff also contends that, notwithstanding any outcome adverse to her with regard to the countability of her partnership interest as a resource, the Secretary reopened its prior determination of her eligibility for continued SSI benefits in violation of his own regulations. This contention is based on the fact that while plaintiff's father died in 1980 and his estate was settled in 1981, the secretary did not determine plaintiff to be financially ineligible until 1989, despite the Secretary's apparent awareness of at least her one-fourth interest in the North Carolina real property, as early as 1983. Plaintiff's Brief at 16; R. 8 (opinion of Appeals Council). In other words, plaintiff claims that the Secretary's 1989 redetermination of her eligibility status, which is the origin of her present denial of benefits, was really a reopening of her initial grant of SSI benefits, which occurred in 1978. Plaintiff asserts that such a reopening violates 20 C.F.R. § 416.1488(b) because it was not done within the prescribed two year period.
A reopening and revision of a prior determination or redetermination of eligibility for SSI benefits is permitted, among other instances, "within two years of the date of the notice of the initial determination if . . . [the Secretary] finds good cause, as defined in § 416.1489, to reopen the case . . ." 20 C.F.R. § 416.1488(b). The apparent purpose of such a reopening is to allow the claimant to furnish the Secretary with new and material evidence or correct a clerical error, before an initial determination becomes final and binding. 20 C.F.R. § 416.1489(a); see also Singer v. Secretary of Health & Human Services, 566 F. Supp. 204, 210 (S.D.N.Y. 1983).
On the other hand, a redetermination, as defined in 20 C.F.R. § 416.204(a), is "a review of [a claimant's] eligibility to make sure that . . . [claimant is] still eligible[.] . . . This review deals with the requirements for eligibility other than whether . . . [claimant is] still disabled or blind." The Secretary conducts such redeterminations "on a scheduled basis at periodic intervals", id. at § 416.204(b)(1), and when the claimant informs, or the Secretary otherwise learns of, a change in the claimant's eligibility status, id. at § 416.204(b)(2).
The Secretary maintains, and it is obvious from the record, that what occurred in the present matter was a redetermination of plaintiff's eligibility status under 20 C.F.R. § 416.204, and not a reopening of a previous determination or decision. The record indicates that the Secretary's 1989 action was the third redetermination conducted since the original grant of benefits in 1978, the others occurring in 1983 and 1986. R. 7; Defendant's Brief at 6. This redetermination did not involve a review of plaintiff's disability, as provided in 20 C.F.R. § 416.204(a). This review was not undertaken because new and material evidence had come to the attention of the Secretary, as would be the case if the Secretary's action were a reopening pursuant to 20 C.F.R. § 416.1488(b). Finally, the Appeals Council specifically limited its finding of excess resources to the period beginning in April of 1989, the month of the current redetermination, in accordance with 20 C.F.R. § 416.204(c)(2) (defining the period to which a redetermination applies). In short, all of the evidence of record indicates that the Secretary undertook a redetermination of plaintiff's eligibility for SSI benefits in 1989, as permitted under 20 C.F.R. § 416.204. Accordingly, plaintiff's claim otherwise is without merit, and her reliance on Singer v. Secretary of Health & Human Services, 566 F. Supp. 204 (1983), which dealt with the reopening of a decision under 20 C.F.R. § 416.1488(b), is misplaced.
For the reasons stated, this Court affirms the Secretary's decision terminating plaintiff's SSI benefits as of April 1989. An appropriate order follows.
Dated: April 14, 1993
WILLIAM G. BASSLER, U.S.D.J.