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JOHNSON v. WEINBERGER

December 13, 1974

PEARL R. JOHNSON, PETITIONER,
v.
CASPAR WEINBERGER, SECRETARY OF HEALTH, EDUCATION AND WELFARE, RESPONDENT.



The opinion of the court was delivered by: Bauer, District Judge.

MEMORANDUM OPINION AND ORDER

This cause comes pursuant to the report and recommendations of a magistrate in accordance with Rule 1, subd. D (2)(a)(i) of the Magistrate Rules of the Northern District of Illinois.

This is an action brought pursuant to 42 U.S.C. § 405, 1395, for judicial review of a final decision of the Secretary of Health, Education and Welfare which denies payment of surviving divorced mother's benefits, disabled wage earner benefits and disabled widow's insurance benefits; 42 U.S.C. § 402 and 423.

The magistrate recommends that the final decisions of the Secretary be affirmed and that this Court enter an order granting defendant's motion for summary judgment.

It is the opinion of this Court that the report and recommendations of the magistrate are proper.

PETITIONER'S FACTUAL BACKGROUND

1. Pearl R. Johnson, petitioner was born December 13, 1913 in Minnesota and presently resides in Elmhurst, Illinois. She was first married in 1936, which ended in divorce five years later. She married the deceased wage earner, Steve Johnson, on July 13, 1946. Approximately fifteen months later, on October 25, 1947, they were divorced.

2. During the marriage of petitioner and wage earner, one son, Steven Gerald, was born, on September 15, 1946. Subsequent to their divorce proceedings, another son, Keith Karl, was born to petitioner on October 6, 1949. The wage earner died in an airplane crash on October 4, 1958.

3. By the terms of the divorce decree, the petitioner waived her right to alimony and received $1,900 in cash and the right, title and interest in and to certain real estate in Villa Park, Illinois. Petitioner agreed to pay court costs, attorney's fees, and all existing current debts totally $569. Her husband, the wage earner, was ordered to pay for the support, maintenance and education of their minor child Steven in the amount of twenty dollars per week for fifty-two weeks and thereafter fifteen dollars per week.

4. Petitioner received $6,000 from a probable settlement, $7,000 from a whiplash personal injury settlement, and currently receives disability payments from the State of Illinois.

SUMMARY OF PRIOR ADMINISTRATIVE PROCEEDINGS

Petitioner has filed several applications for support benefits since the death of her second husband. She has requested statutory status as a:

  1.  divorced mother for survivor's insurance
      benefits pursuant to 42 U.S.C. § 402;
      petitioner filed an application for benefits on
      November 5, 1965 wherein it is claimed the
      deceased wage earner contributed $4,800 per
      year to the children and to her, contributed
      twenty to thirty dollars weekly for groceries,
      and made irregular house payments;
  2.  disabled wage earner wherein the petitioner
      claims on her application, filed October 10,
      1969, that she is within the recognized
      status of disability since April, 1966,
      because of chronic emphysema and whiplash;
      and
  3.  disabled widow for insurance benefits from
      the deceased wage earner's account whereby
      the petitioner claimed double lung collapse
      since July, 1958 and chronic whiplash.

The administrative decisions affecting these three applications for benefits demonstrate petitioner's failure ...


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