The opinion of the court was delivered by: BUCKLO
Putative members of the plaintiff class, Nossrat Tehrani and Mary Portilla, have filed a motion to enforce the terms of the Stipulation to Dismiss signed by the parties on April 9, 1987. For the reasons discussed below, the motion is granted.
1. Relevant Rules of the Supplemental Security Program
The Supplemental Security Program provides benefits to aged, blind or disabled individuals who meet the statutory income and resource limitations. 42 U.S.C. §§ 1381, 1382, 1382a, 1382b. A Social Security Income ("SSI") recipient is paid a standard monthly benefit rate, currently $ 458.00, reduced by the recipient's countable income. 42 U.S.C. § 1382(b). Such income consists of earned income and unearned income, which includes "in-kind" contributions of support and maintenance. 42 U.S.C. § 1382a(a)(2)(A). In-kind income is defined as
anything you receive . . . that you can use to meet your needs for food, clothing, and shelter. . . . In-kind income is not cash, but is actually food, clothing, or shelter, or something you can use to get one of these.
20 C.F.R. § 416.1102. Shelter is defined to include rent, which is at issue here. 20 C.F.R. § 416.1130(b).
The Commissioner values in-kind contributions of rent by applying the "presumed maximum value" ("PMV") rule. The Commissioner presumes in-kind rent is worth a maximum value equal to one-third the recipient's federal benefit rate plus the general income exclusion described in 20 C.F.R. § 416.1124(c)(12), which is $ 20.00. 20 C.F.R. § 416.1140(a)(1). Currently, the PMV is $ 172.67.
In Jackson v. Schweiker, 683 F.2d 1076, 1077 (7th Cir. 1982), an Indiana plaintiff class challenged the policy of the Social Security Administration ("SSA") to impute as unearned income to SSI recipients the difference between the rent actually paid for shelter and the fair market rental value of the shelter. The named plaintiff, Madgey Jackson, received monthly SSI benefits of $ 56.40 and a Veterans Administration pension of $ 133.00, resulting in a total monthly income of $ 189.40. Id. at 1077, 1080. Ms. Jackson lived alone in a house owned by her sister, and paid her sister $ 145.00, or approximately 77 percent of her income, for rent each month. 683 F.2d at 1080. The cash available to meet Ms. Jackson's needs beyond shelter was $ 44.40, or about 23 percent of her monthly income.
Ms. Jackson's sister stated that she would charge a non-relative tenant $ 250.00 each month as rent for the house. Id. at 1077. The Social Security Administration ("SSA") determined that the excess of the current market value of the house ($ 250.00) over the amount of rent Ms. Jackson actually paid ($ 145.00), which was $ 105.00, constituted unearned income to Ms. Jackson. Id. at 1080. Applying the PMV rule, the SSA deducted $ 83.13 (the PMV at the time) from Ms. Jackson's monthly benefits rather than the full $ 105.00. Id. As a result, Ms. Jackson was left with her $ 133.00 VA pension benefit to pay her monthly living expenses, including her $ 145.00 rent payment. Id. at 1081. The Seventh Circuit noted that in theory, after termination of her SSI benefits, Ms. Jackson's payments for shelter were $ 145.00 in cash rent plus $ 83.13 in unearned income for a total of $ 228.13 out of $ 216.13 of income ($ 133.00 VA pension benefit plus $ 83.13 unearned income). Id. This figure was 106 percent of her income. Id.
whether unearned income measured by an excess of market value over actual cost for shelter is "actually available" to a recipient ...