Louise Metter, Appellant, v. Secretary of Health, Education and Welfare et al., Appellees, 434 F.2d 641 (8th Cir. 1970)

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U.S. Court of Appeals for the Eighth Circuit - 434 F.2d 641 (8th Cir. 1970) November 12, 1970

Louise Metter, pro se.

Daniel Bartlett, Jr., U. S. Atty., and James M. Gordon, Asst. U. S. Atty., St. Louis, Mo., on brief for appellees.

Before VAN OOSTERHOUT and BRIGHT, Circuit Judges, and NEVILLE, District Judge.


This is an appeal by plaintiff Louise Metter from the final order of the District Court filed February 16, 1970 affirming the final determination of the Secretary that plaintiff's personal old-age insurance benefits and her widow's insurance based upon her deceased husband's wage record have been correctly computed and dismissing the petition. The judgment of dismissal is affirmed upon the basis of the findings set out in the trial court's unreported order.

Plaintiff, although afforded ample opportunity to produce evidence that her wage record and that of her deceased husband were not correctly reflected in the Secretary's records upon which computations were based, has failed to do so. The Secretary fully explained the basis of his computations and the earnings record upon which they were based to the plaintiff.

Plaintiff's principal complaint is that her widow's insurance based upon her deceased husband's earnings was reduced by the amount of her own benefits based upon her earnings. Plaintiff seeks two full benefits. She desires to continue to receive the social security benefits she has heretofore been receiving as a surviving widow and in addition now that she has attained the requisite age, she desires payment of benefits based on her own earnings.

The Secretary is bound by the provisions of the Social Security Act in determining benefits payable. Forty-two U.S.C.A. § 402(k) (3) (A) expressly and unambiguously provides: "If an individual is entitled to an old-age or disability insurance benefit for any month and to any other monthly insurance benefit for such month, such other insurance benefit for such month * * * shall be reduced, but not below zero, by any amount equal to such old-age or disability insurance benefit. * * *" This statute clearly compelled the Secretary to make the deduction complained of by plaintiff.

The judgment is affirmed.