Myrtie Herndon v. Richard Schweiker, Secretary of Health and Human Services

Appellant seeks reversal of the decision of the district court denying restoration of her Supplemental Security Income (SSI) benefit levels. We affirm.

The facts are undisputed. Appellant had established her own household in a residence owned by one of her children, and paid less than fair market value in rent. The Secretary of Health and Human Services determined that the difference between the rent paid and the fair market value constituted in-kind income, and therefore reduced appellant’s SSI benefits in accordance with regulations promulgated under Title XVI of the Social Security Act (SSA), §§ 1601-1634, 42 U.S.C. §§ 1381 -1383c (1976). The reduction was limited, under the regulations, to one-third of appellant’s *680 prior benefit level, although the rent differential was greater than that amount.

Appellant first argues that the difference between rent paid and fair market value should not constitute income under 42 U.S.C. § 1382b (1976). The Ninth Circuit has already approved the Secretary’s practice of attributing in-kind income to persons paying reduced rent. Antonioli v. Harris, 624 F.2d 78 (9th Cir. 1980). Appellant has failed to distinguish this case from her own. We…

concurring:

I concur for the reasons stated in my concurrence in Young v. Schweiker, 680 F.2d 680 (9th Cir. 1982).

680 F.2d 678 Myrtie HERNDON, Plaintiff-Appellant, v. Richard SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee. No. 81-4052. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 8, 1982. Decided July 2, 1982. Deborah J. Baldwin, Senior Citizens Law Project, Cal. Rural Legal Assistance, Modesto, Cal., for plaintiff-appellant. Alan M. Grochal, U. S. Dept. of Health & Human Services, Baltimore, Md., for defendant-appellee. Appeal from the United States District Court for the Eastern District of California. Before FARRIS, FERGUSON, and NELSON, Circuit Judges. NELSON, Circuit Judge: 1 Appellant seeks reversal of the decision of the district court denying restoration of her Supplemental Security Income (SSI) benefit levels. We affirm. 2 The facts are undisputed. Appellant had established her own household in a residence owned by one of her children, and paid less than fair market value in rent. The Secretary of Health and Human Services determined that the difference between the rent paid and the fair market value constituted in-kind income, and therefore reduced appellant's SSI benefits in accordance with regulations promulgated under Title…