concurring:

Young’s main argument is that in-kind income should be imputed only to the extent that what she pays is less than the fair market value of “basic” housing. In other words, to the extent her basic housing needs are being met by her son’s generosity, Young would acknowledge the receipt of in-kind income, but to the extent that her son’s generosity exceeds her basic housing needs, she would not.

Young’s position is supported by the Secretary’s definition of income, 20 C.F.R. § 416.1102 (a) (1980). If income by definition is limited to the receipt of property which can be applied to meeting “basic needs for food, clothing and shelter,” then presumably in-kind support and maintenance income, as a subset of all income, also must be limited to the receipt of “basic needs” food, clothing, and shelter.

For example, Young is paying $140.00/mo. to live in a house with a fair market rental value of $225.00/mo. Assuming her basic shelter needs would be satisfied by a one bedroom apartment, that the fair market rental value of such would be $150.00/mo., and that she is not permitted to sublet space in her house to take advantage of the $225.00/mo. fair market rental value, then only $10.00 of in-kind income should be imputed. From an administrative standpoint, this would mean that in addition to being able to rebut the presumed maximum value rule, Young should be given an opportunity to rebut the fair market value assessment rule of 20 C.F.R. § 416.1125 (a) (1980).

Young’s argument is consistent with the purpose of the SSI program, which is to pay benefits only to the extent that an individual’s basic subsistence needs are not being met from other sources. 3 U.S.Code Cong. & Adm.News 4989, 5132-44 (1972); Wynn v. Harris, 494 F.Supp. 878, 881 (W.D.Tenn. 1980). Given this purpose, the focus should be on the extent to which basic needs are being met by other sources, and not on an abstract gap between an estimated fair *683 market rental value and the amount actually being paid. See Antonioli v. Harris, 624 F.2d 78, 80 (9th Cir. 1980):

In Antonioli the fair market rental value of the recipient’s house was only $75.00. The recipient paid $24.80 in the form of maintenance and property taxes. It seems likely that the full difference helped to satisfy basic housing needs. Therefore, there probably was no point in raising the argument now made by Young.

The impact of the Secretary’s more aggressive approach is quite clear in Young’s case. She could not afford to pay the full fair market rental. Nor could she accept the reduction in benefits imposed by the Secretary and still meet her other basic needs. She could not convert the extra bedroom (or nice neighborhood or whatever else made the fair market rental value of her residence $225.00) into food or clothing. As a result, she was forced to go into government subsidized housing.

Young’s argument is consistent with 42 U.S.C. § 1382b, which excludes the value of a person’s home when determining whether such person’s resources exceed the limits for eligibility. The exclusion of the home avoids disincentives to home ownership in recognition that home ownership minimizes dependency and encourages self-support. But if the recipient gives her house to a son and continues to live there, suddenly it causes a reduction in her benefits pursuant to § 416.1125(a).

Consider also the hypothetical posed by the magistrate in his Findings of Fact, Conclusions of Law and Recommendation in Ross v. Califano, CV No. 77-2245-F(G) (C.D.Cal. Aug. 8, 1979). The magistrate asked whether a $50.00 can of caviar constitutes $50.00 in maintenance. The magistrate suggested that the value assigned to the can of caviar should be more in line with the cost of equivalent food within the recipient’s means, such as a $.79 can of sardines.

I have reluctantly joined the majority in this ease because I agree that the above-summarized support for Young’s argument is not sufficient to overcome the usual deference due to an agency’s statutory interpretation (although the inconsistency between 20 C.F.R. § 416.1102 (a) (1980) and 20 C.F.R. § 416.1125 (a) (1980) may undercut somewhat the usual considerable deference due). However, the argument is not insubstantial. Nor is the hardship imposed on Young insubstantial. She has been forced out of private housing and into government housing. I write separately in part to underscore the negative effect of the Secretary’s interpretation of the regulations, at least in cases like this one. I deem it unfortunate that those persons who are attempting to privately meet their needs appear to suffer a penalty. I recognize that without a statutory or constitutional violation, Young’s concern must be addressed to the Congress, not the courts.