Florine Costello v. MICHAEL J. ASTRUE , Commissioner of Social Security

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4083
F LORINE C OSTELLO ,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE ,
Commissioner of Social Security,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 2952—Elaine E. Bucklo, Judge.
____________
A RGUED J UNE 5, 2007—D ECIDED A UGUST 23, 2007
____________
Before E ASTERBROOK , Chief Judge, and M ANION and
W OOD , Circuit Judges.
E ASTERBROOK , Chief Judge. Florine Costello visited her
local Social Security office in 1994 with a straightforward
question: from which of her two ex-husbands could she
collect the largest monthly benefit check? (Divorcees can
draw retirement benefits on their former spouses’ earnings
records. 42 U.S.C. §402(b).) Based on the advice she
received, she applied for (and received) benefits for which,
it turns out, she was ineligible. The SSA eventually
discovered the error and demanded repayment of eight
years’ benefits. Costello seeks to offset this amount by the
benefits she would have received had she applied under

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2 No. 06-4083
the other ex-husband’s account. An administrative law
judge concluded that such an offset is unavailable because
the situation does not fall within 42 U.S.C. §402’s “misin-
formation” provision, which allows applications to be
granted retroactively in some circumstances. After the
Appeals Council declined Costello’s request for review, she
brought this suit, in which the district court granted
summary judgment for the agency.
The facts are not in dispute. Florine Costello was
married to Gilbert Costello for 30 years before they
divorced in 1982. Five years later she married Leonard
Ramsey. She began receiving Social Security benefits as
Ramsey’s spouse in 1992, but the following year she and
Ramsey divorced. In January 1994 Costello and her adult
daughter went to the SSA’s office in Joliet, Illinois, to
find out whether she could draw greater benefits as
Costello’s ex-wife or as Ramsey’s. (These are the recollec-
tions of Costello and her daughter. There is no documen-
tary evidence of the visit—such as a recording or contem-
poraneous notes—but the SSA has accepted Costello’s
version of events.) She told an SSA employee named
Goerlitz, “I want to find out from which of my ex-husbands
I can pull the most benefits.” After a few moments he
told Costello: “Stay with Ramsey. You can get the most
from Ramsey.”
Goerlitz was wrong. Costello and Ramsey had been
married only six years, but 42 U.S.C. §402(b)(1)(G)(ii)
provides that 10 years’ marriage is the minimum to
qualify under these circumstances. Thus Costello is
ineligible for benefits as Ramsey’s ex-wife. Given the
length of her marriage to Gilbert Costello, however, she
was eligible for benefits on his account once he reached age
62. All that was needed was an application—which
Costello did not file at the time. The SSA discovered the
error in 2002 and demanded that she return all benefits
paid to her as Ramsey’s ex-wife. Costello replied that she

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No. 06-4083 3
should be able to offset the amount she owed by the
amount the SSA would have paid her over the years had
she applied for benefits on Gilbert Costello’s account at
the time she mistakenly applied as Ramsey’s ex-wife.
Gilbert Costello’s earnings history apparently is not as
good as Ramsey’s, but it’s close; if offset is allowed, the
amount overpaid drops to only about $1,800.
Costello’s offset argument rests on the “misinformation”
provision of 42 U.S.C. §402 and the accompanying regula-
tions. Subsection (j)(5) provides that:
In any case in which it is determined to the satis-
faction of the Commissioner of Social Security that
an individual failed as of any date to apply for
monthly insurance benefits under this subchapter
by reason of misinformation provided to such
individual by any officer or employee of the Social
Security Administration relating to such individ-
ual’s eligibility for benefits under this subchapter,
such individual shall be deemed to have applied
for such benefits on the later of—
(A) the date on which such misinformation was
provided to such individual, or
(B) the date on which such individual met all
requirements for entitlement to such benefits
(other than application therefor).
In short, if Costello failed to apply for Social Security
benefits because she received misinformation, then the
agency must backdate any subsequent application to the
time when it would have been made, had the information
been correct. Regulations flesh out the statutory require-
ments. See 20 C.F.R. §404.633(c):
(2) Misinformation is information which we con-
sider to be incorrect, misleading, or incomplete in
view of the facts which you gave to the employee,

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4 No. 06-4083
or of which the employee was aware or should have
been aware, regarding your particular circum-
stances. . . . In addition, for us to find that the
information you received was incomplete, the
employee must have failed to provide you with the
appropriate, additional information which he or
she would be required to provide in carrying out
his or her official duties.
. . .
(4) The misinformation must have been provided to
you in response to a specific request by you to us
for information about your eligibility for bene-
fits . . . for which you were considering filing an
application.
The district court held that the agency did not provide
“misinformation” in 1994 because (1) the misinformation
provisions apply only to requests for information about
eligibility for benefits—and Costello asked about dollar
amounts, not eligibility; and (2) the SSA employee did
not know how long Costello’s marriages had lasted and
thus of her ineligibility for benefits on Ramsey’s earnings
record.
The first proposition is a quibble. The agency points out
that the statute and regulations refer to questions about
“eligibility”. Because Costello didn’t ask about eligibility
using that word she loses, the agency maintains. Costello
responds that an inquiry about the relative amounts of
benefits necessarily implies the question whether one is
eligible for those benefits in the first place.
Section 402(j)(5) speaks of “misinformation . . . relating
to such individual’s eligibility for benefits”. Subsection
(c)(4) of the accompanying regulation states, “The misinfor-
mation must have been provided to you in response to
a specific request . . . for information about your eligibility

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No. 06-4083 5
for benefits.” But this emphasis on eligibility doesn’t help
the agency because you can’t answer the “amount” ques-
tion correctly without considering the “eligibility” question.
In order to compare two streams of benefits, the SSA
employee needed to consider the possibility that one set of
benefits was zero. The correct answer to Costello’s ques-
tion was: “Your benefits would be greater under Gilbert
Costello’s account because you are entitled to nothing
under Leonard Ramsey’s account.”
The agency would have us understand Costello’s ques-
tion as: “On the assumption that both Ramsey and Costello
afford me benefits, which ex-husband provides the great-
est dollar amount?” or as “Which ex-husband has the
better earnings record?” If that had been the case, then the
SSA would have a point. But that’s not what Costello
asked. Her question was, “From which of my ex-husbands
can I pull the most benefits?” In order to “pull” any
amount, Costello would have to be eligible. An earnings
record is irrelevant if the applicant can’t draw on it. The
agency’s position that Costello needed to ask two ques-
tions—one about eligibility and one about amount—is
untenable because the latter question includes the former.
As for the second argument, it’s true that the SSA
employee didn’t know the dates of Costello’s marriages and
divorces, but that’s only because he didn’t ask. (Costello
didn’t know enough to volunteer the information; her lack
of legal knowledge is why she asked SSA.) The agency’s
position is that its employee was under no obligation to
gather information that would be relevant to determining
Costello’s eligibility for benefits. The regulations define
“misinformation” with reference to “facts which you gave
the employee or of which the employee was aware or
should have been aware” and speaks of “appropriate,
additional information which [the employee] would be
required to provide in carrying out his or her official
duties.” 20 C.F.R. §404.633(c)(2). Goerlitz “should have

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6 No. 06-4083
been aware” of the length of Costello’s marriages because
he “should have” asked. The 10-year rule is precisely the
sort of unintuitive, technical requirement that leads
people to seek advice. While SSA employees need not ferret
out potential claims for benefits—for example, by asking
an applicant whether other members of the family might
be eligible—once someone has indicated an intention to
apply for benefits, an employee has a duty to work through
the application calculus, and that includes asking obvi-
ously relevant questions. Goerlitz had to ask about the
lengths of Costello’s marriages, because that information
was essential to answering her question. Costello didn’t
know what mattered; it was Goerlitz who decided to start
(and end) with the earnings records rather than with the
length of the marriages.
An example in the regulation contemplates asking
necessary follow-up questions to establish eligibility. See
§404.633(a), ex.2. In that example, an applicant is told
that she is ineligible for disability benefits because she
has fewer than 20 quarters of work experience. The
SSA employee failed to ask how old the applicant is
(the information had not been volunteered); had the
employee done so, he would have known the applicant fit
within an exception to the 20-quarter requirement for
younger workers. Costello’s situation is materially indis-
tinguishable. It would have been simple enough for
Goerlitz to ascertain how long her marriages had lasted.
The divorce decrees were on the table in front of him.
The agency argues that this court’s decision in
Smithback v. Sullivan, 899 F.2d 698 (7th Cir. 1990),
forecloses Costello’s argument. While Smithback does not
mention 42 U.S.C. §402(j)(5) (enacted a few months
earlier) or the corresponding regulation (issued later), the
agency insists that the holding is in harmony with the
later misinformation regulations. In Smithback a 62-year-
old called the SSA to ask about the reduction in retire-

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No. 06-4083 7
ment benefits for filing prior to age 65. The employee with
whom Smithback spoke told him that he would receive
considerably less in benefits if he retired before age 65.
Although the SSA employee was thinking in terms of
monthly benefits, Smithback contended that he had been
thinking in terms of total lifetime benefits. Smithback
waited to apply for benefits but later regretted his deci-
sion and sought to have his application back-dated to his
62nd birthday. This court affirmed the agency’s refusal
to do so.
The SSA cites Smithback as though it stands for the
proposition that the agency gets the benefit of the doubt
when a potential applicant asks an ambiguous or poorly
phrased question. That’s not so. Smithback lost because
the SSA employee gave the right answer: monthly bene-
fits for those who waited to retire until age 65 were about
20% greater. The employee’s interpretation of the question
was the only one that made sense. Smithback said nothing
that would have tipped off the SSA employee that he
was really interested in maximizing the present dis-
counted value of lifetime benefits. Even if he had, the
question would be impossible to answer: the employee
could not know how long Smithback would live or to what
degree Smithback preferred consumption today compared
to consumption in the future. The employee answered the
only question it made sense to answer—and did so cor-
rectly. That was not the case here. The most sensible
response to Costello’s question would have been to deter-
mine, first, whether she was eligible for any benefits at all,
and then to compare the amount (if any) she received from
each ex-husband. Unlike Smithback’s, Costello’s was a
well-defined problem with a straightforward answer. And
unlike Smithback, Costello received the wrong answer.
The agency offers one additional argument: that the
application for which one seeks a deemed filing date must
be the very same one about which one was misinformed.

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8 No. 06-4083
According to the agency, Costello’s situation falls outside
§402(j)(5) because she wants to backdate her application
as Gilbert Costello’s ex-wife, though the misinformation
she received concerned Leonard Ramsey’s account. It
points to language in §402(j)(5) stating that when some-
one doesn’t apply for benefits because of misinformation,
then “such individual shall be deemed to have applied for
such benefits” at an earlier date (emphasis added). We
don’t get it. Costello did not ask in 1994 about Ramsey’s
benefits; she asked about her own benefits as the ex-
spouse of a retiree. The fact that she had two ex-husbands
doesn’t change the nature of the benefit she sought.
Florine Costello’s inquiry about the amount of benefits
to which she was entitled falls within 42 U.S.C. §402(j)(5)
and the regulations. The SSA has been collecting the
$23,180 by withholding Costello’s monthly social security
payments. The record does not reveal the current balance
of accounts between the agency and Costello, so on remand
the district court must determine (1) the date on which
Costello is deemed to have applied for benefits as Gilbert
Costello’s ex-wife, and (2) the amount that the SSA now
owes Costello (or vice versa).
R EVERSED AND R EMANDED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-23-07

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