dissenting:
This case illustrates bureaucratic reasoning at its worst. It helps explain why so many Americans have so little confidence in government officials. In the name of equity, the Social Security Commissioner is administering the law in an arbitrary manner that benefits no-one and unnecessarily causes significant harm to a substantial number of aged, blind, and disabled individuals.
The Social Security Commissioner decided not to send full subsistence benefit payments to aged, blind, and disabled persons who were entitled to receive them, because he determined that to do so would be “inequitable.” The “inequity,” in the Commissioner’s mind, was that the payment of full subsistence benefits to those whose claims were ready to be processed would be unfair to those whose claims were not yet ready and therefore could not receive their full payments simultaneously. On account of this purported inequity, the Commissioner omitted from the benefit checks of numerous aged, blind, and disabled persons payments to which they were indisputably entitled. The Commissioner not only made this odd determination in the name of “equity,” but made it the basis for a regulation which enshrines his peculiar rationale in the governmental process. Because the Commissioner’s regulation is so clearly arbitrary and capricious, it is not necessary to reach some of the other fundamental questions regarding the manner in which he administers these payments.
By the Commissioner’s own admission, but for the policy he adopted, full benefit payments could have been mailed at an earlier time to a substantial number of aged, blind, and disabled persons who depend on them to meet their basic needs of food and shelter. Instead, in the name of “equity” the Commissioner needlessly and senselessly compelled Ms. Newman and countless other already impoverished SSI recipients to endure even greater hardship by living well below the subsistence level for a specified period of time.
What makes this case so disturbing is that for nearly fifteen years the Commissioner has succeeded in frustrating the goal of the program he is charged with administering: to provide aged, blind, and disabled individuals with a subsistence level income whenever possible. To hold, as the majority does today, that the Commissioner’s policy is a reasonable exercise of his discretion is to exalt a robotic governmental desire for uniformity of payment dates over the far more important objective of insuring that a beneficent statute is applied in a manner that serves its essential humanitarian purpose — to provide individuals in need with the means of economic survival.
*948Juanita Newman is a disabled mother whose survival depended on receiving timely benefit payments. As calculated by the Social Security Administration, she was entitled to receive $580 per month to maintain a minimum subsistence income in order to feed, clothe, and house herself and her daughter. In 1987, Ms. Newman’s minimum subsistence payment was comprised of two checks, one from the Social Security disability program, and one from the Social Security Title II program. The Title II payments constituted “mother’s benefits” payable to her on account of her deceased husband’s Title II earnings, because she had a child under age sixteen. In 1987, these Title II mother’s benefits were $284 per month. Because the modest Title II benefits placed her well below the Federal minimum disability income level, she received an additional $296 per month in SSI benefits, in order to bring her to the $580 total that was necessary for her survival.
During March, 1987, Ms. Newman was notified by the Social Security Administration that, five months later, commencing in August of that year, she would no longer receive mother’s benefits under Title II. The termination of her mother’s benefits was predictable and automatic because her daughter would reach age sixteen on her upcoming birthday. Accordingly, as of August, Ms. Newman became entitled to a commensurate increase in her SSI benefits that would serve to maintain her monthly income at the subsistence level figure. Because of the accounting method employed by the Commissioner, however, the change in her Title II income was not reflected in her SSI grant until October, two months after her entitlement date. During August and September 1987, Ms. Newman had no income other than $296 in monthly SSI benefits and a one-time emergency SSI payment of $100, and she and her daughter were left without sufficient funds to make payments for housing and other essential needs.
The problem is not a new one. In 1982 Congress sought to remedy the Commissioner’s built-in two-month delay in adjustments to SSI benefits by enacting the “reliable information exception” to the accounting method being used by the Social Security Administration. This provision encouraged the Commissioner to alter an individual’s benefits for any month in which he “determines that reliable information is currently available with respect to the income and other circumstances of an individual.” 42 U.S.C. § 1382(c). The amendment also stated that the Commissioner “shall prescribe by regulation the circumstances in which” a person’s current income may be used to determine the payment of benefits under the reliable information exception. 42 U.S.C. § 1382(c).
For almost fifteen years, the Commissioner ignored this congressional policy and refused to promulgate a regulation. Finally, a suit was brought by Ms. Newman, and a similar action was filed in Ohio, to compel the Commissioner to implement the congressional provision. In those proceedings, the Commissioner vigorously defended his conduct. Only after this court ordered him to promulgate a regulation did he finally take any action. See Newman v. Chater (“Newman I”), 87 F.3d 358 (9th Cir.1996). The Commissioner then issued a regulation that eviscerated Congress’s remedial amendment. The regulation adopted by the Commissioner, a decade and a half after the statutory amendment, states that “[t]he Commissioner has determined that no reliable information exists which is currently available to use in determining benefit amounts.” 20 C.F.R. § 416.420. As a result, the congressional provision authorizing elimination of the two-month delay in changes to benefit payments where reliable information exists has never been implemented in any respect. Instead, the purpose of the SSI program, namely to ensure a minimum subsistence level for aged, blind, and disabled individuals, continues to be frustrated by the Commissioner’s use of an inflexible and at times *949senseless accounting system. In my opinion, the “non-regulation” the Commissioner ultimately adopted is arbitrary and capricious, and therefore unlawful.
I should note that there is an even more basic problem than the Commissioner’s perverse theory of “inequity” that affects the validity of his regulation. Changes in Title II benefits that will result in commensurate changes in the amount of money to which a claimant is entitled through the SSI program are known to the agency many months in advance. As noted earlier, the SSA notified Ms. Newman in March that her Title II benefits would be terminated five months later, in August. Nevertheless, under the Commissioner’s regulation, information regarding a certain change in Title II benefits is not considered “reliable” for purposes of determining a claimant’s SSI entitlement until the Social Security Administration’s computer registers the Title II payment change for the month in which the decrease actually occurs. The fact is, however, that under any reasonable construction, the reliable information is available many months before the Commissioner is willing to acknowledge that it is. Thus, there is no valid justification for the two month delay with respect to any of the recipients whose overall benefits must be adjusted because of the termination of Title II benefits. However, it is not necessary to decide that question finally here because, as explained above, the theory of “inequity” which underlies the regulation and its finding of “no reliable information” is patently erroneous and renders the regulation arbitrary and capricious.
To return to the fundamental issue presented by Ms. Newman, the regulation finally adopted by the Commissioner after this court issued the Newman I decision is arbitrary and capricious because it declares that “no reliable information exists which is currently available to use in determining benefit amounts” when in fact, and admittedly, such information is available.1 It is undisputed that the changes in Title II benefits for approximately one-half of the affected recipients are posted to the SSI records in time to permit payment without the two month delay. Id. The Commissioner’s explanation for not treating this information as available — namely, that it would be “inequitable” to treat recipients of subsistence benefits differently on the basis of when in the month the information regarding their decrease in income is received — is clearly not founded in reason or logic. The statute is cast in terms of the available information regarding the individual recipient. A refusal to make full benefit payments to those individuals whose information is available and who are clearly entitled to receive those payments is not consistent with the basic objectives of the Social Security Act.
The underlying purpose of the Act is “to assure a minimum level of income for people who are age 65 or over, or who are blind or disabled and who do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level.” See 20 C.F.R. § 416.110; Paxton v. Secretary, 856 F.2d 1352, 1353 (9th Cir.1988). The program thus establishes “a minimum income level below which the federal government thinks people should not have to live.” Paxton, 856 F.2d at 1353. Withholding benefit payments on the basis of an arbitrary and capricious regulation violates the statutory scheme. It is evident from the language of the “reliable information” exception that Congress was aware that there would be some difference in the times at which the payment of full benefit amounts to individuals would be possible. The “reliable information” provision by its terms applies to the information available with respect to the particular individual involved (e.g., “the income ... of an indi*950vidual” and the benefit amount of such individual.” 42 U.S.C. § 1382(c)(4)(A)).
There is nothing inequitable about providing for the basic needs of those to whom benefit payments can be made, even though there are other individuals whose payments cannot be made until a later date. The Commissioner’s policy exacerbates rather than alleviates the inherent unfairness of his delayed accounting procedure, by withholding benefits to which aged, blind, and disabled persons are entitled, solely for the reason that the claims of others cannot be processed at the same time.
Contrary to the Commissioner’s view, equity does not mean that all must suffer a deprivation of their rights simply because it is necessary to delay payments to some. Making others suffer unnecessarily does not improve the lot of those who must suffer in any event. If some aged, blind, or disabled persons must, for reasons of the Commissioner’s hidebound bookkeeping procedures, go without food or shelter for a period of time, it is not more equitable to cause all aged, blind and disabled persons to go without — and suffer equally. That is neither right nor just, and benefits no-one. The concept of equity mandates fairness to all, not the imposition of unnecessary hardship on some. This fact has thus far escaped the Commissioner. I believe it is within our authority, in fact that it is our obligation, to correct his grievous error.2
. Title II benefit information is clearly also "reliable" under 20 C.F.R. § 416.420(c)(1) because it is maintained on a computer system within the Social Security Administration. 62 Fed.Reg. 30747, 30749 (June 5, 1997).
. I do not reach the argument implicit in the majority’s opinion that because the statute states that the Commissioner "may” calculate benefit payments on the basis of reliable currently available information, he would have the discretion in all events to ignore such information. While I disagree with the majority on this point, in view of the content of the regulation before us, I need not discuss it further. In this case, the Commissioner’s regulation is arbitrary and capricious. Therefore, he may not withhold payments on that basis. Accordingly, Ms. Newman is entitled to relief.