Marie Robinson v. Otis R. Bowen, M.D., Secretary of Health and Human Services, Defendant

PER CURIAM:

This is an appeal from a judgment of the United States District Court for the Southern District of New York, Weinfeld, J., granting the motion of the Secretary of Health and Human Services (Secretary) for judgment on the pleadings. Plaintiff-appel-, lant Marie Robinson’s complaint was dismissed and her motion to certify a class was denied as moot.

In this action, brought pursuant to 42 U.S.C. § 405(g) (1982), Robinson challenges a regulation promulgated by the Secretary, 20 C.F.R. § 416.1123(b)(1), which permits the Secretary to calculate Supplemental Security Income (SSI) benefits by including in unearned income amounts not actually received in hand but which were withheld by other agencies to recover prior over-payments.

Robinson, a widow receiving benefits from the Veteran’s Administration (VA), failed to report to the VA additional income she received under Title II of the Social Security Act. As a result, she began receiving overpayments from the VA in 1981. In 1982, the VA began to recover the overpayment by withholding Robinson’s entire monthly benefit. By October 1985, the entire overpayment was recaptured and Robinson again began to receive her monthly VA check.

In 1983, while her VA benefits were being withheld, Robinson applied for SSI benefits. Her application was finally approved by an Administrative Law Judge in January 1985. Under a Social Security Administration regulation, 20 C.F.R. § 416.-1123(b)(1), the Secretary calculated Robinson’s SSI benefit amount by including in her unearned income the amounts withheld by the VA to recoup its overpayment. Robinson, therefore, was deemed to have a greater amount of income than she actually received. Accordingly, the amount of SSI benefits allowed was lower than it would have been had only the funds she received in hand been considered as income.

Robinson challenged the Secretary’s regulation on the ground that it conflicted with the governing statute, 42 U.S.C. § 1382(a)(2)(B) (1982), congressional intent, the policy behind awarding SSI benefits, the Deficit Reduction Act of 1984, 42 U.S.C. § 1383(b)(1)(B) (Supp. III 1985), and the Equal Protection Clause. Judge Weinfeld rejected Robinson’s challenge and dismissed the complaint. This appeal followed.

We disagree with Robinson’s contention that the Secretary exceeded his authority in promulgating section 416.1123(b)(1). As Judge Weinfeld noted, if overpayment withholdings were excluded from unearned income, then Robinson’s SSI benefit would be increased and the VA debt would become subsidized with SSI funds. This result would frustrate the congressional policy of preserving SSI resources. We affirm the judgment of the district court, substantially for the reasons set out in Judge Weinfeld’s opinion below, Robinson v. Bowen, 650 F.Supp. 1495 (S.D.N.Y.1987). The judgment of the district court is affirmed.