Hurvich

MEMORANDUM OPINION AND ORDER

The parties are before the court on cross motions for summary judgment. After careful consideration of the issues raised and arguments of counsel, the court finds there is no triable issue of fact and that plaintiff is entitled to judgment as a matter of law.

BACKGROUND

The undisputed facts before the court show that plaintiff Fred Hurvich is the widower of Laura Hurvich, who died on November 6, 1969. When Mrs. Hurvich died she was an insured wage earner under the Social Security Act.

On December 29, 1969 Mr. Hurvich filed applications for a lump-sum death benefit and for child’s insurance benefits, both of which were subsequently awarded. At the time of applying for these benefits, Mr. Hurvich stated he wished to apply for mother’s insurance benefits, as he was caring for his child and fulfilling the role normally filled by a mother. Section 402(g) of Title 42 of the United States Code provided for such mother’s benefits. An employee of the Social Security Administration told Mr. Hurvich that he could not apply for these benefits.

On March 19, 1975 the Supreme Court in Weinberger v. Wiesenfeld, 420 U.S. 636 , 95 S.Ct. 1225 , 43 L.Ed.2d 514 ,…