PADILLA v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Esther Salas on 9/30/2015. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 14-1828
SALAS, DISTRICT JUDGE
Michael Padilla (“Plaintiff”) appeals the final determination of the Commissioner of the
Social Security Administration (“Commissioner”) denying him Retirement Insurance Benefits
(“RIB”) under Title II of the Social Security Act (the “Act”). This Court has jurisdiction to hear
this matter pursuant to 42 U.S.C. § 405(g) and decides the motion upon the written submissions of
the parties pursuant to Federal Rule of Civil Procedure 78. Because substantial evidence supports
the Commissioner’s determination that Plaintiff has not established he is an alien lawfully present
in the United States, the Court affirms the Commissioner’s decision.
FACTUAL & PROCEDURAL BACKGROUND
On May 25, 2011, Plaintiff applied for RIB, contending that he was entitled to benefits as
of July 2011 because he was no longer working. (D.E. No. 9, Administrative Record (“Tr.”) at
24-29). Plaintiff’s application was denied, initially and on reconsideration, because he failed to
establish his age or his status as either a United States citizen or an alien lawfully present in the
United States. (Id. at 33-35, 37-39, 41-43). The Social Security Administration (“SSA”) informed
Plaintiff of the following:
SSA submitted all the documents you presented to the United States Citizenship
and Immigration Services located in Buffalo, NY.
The agency replied back informing us that the documents you submitted are not
valid forms used as proof of your legal status in the USA. [The United States
Citizenship and Immigration Services] would like you to go to your local
Immigration office with original immigration documents to obtain a current and
You may explain your situation to Immigration andsomeone [sic] there will assist
Once you have resolved the issue of your status in the USA you may go to your
local SSA office and re-apply for Retirement benefits.
(Id. at 37). The notice also advised that Social Security law forbids SSA from paying benefits for
any month that a beneficiary is not lawfully present in the United States; rather, to receive benefits,
the beneficiary must be a United States citizen or national or meet the Attorney General’s
definition of an alien lawfully present in the United States. (Id. at 38).
On March 9, 2012, Plaintiff requested a hearing before an Administrative Law Judge
(“ALJ”). (Id. at 44). On March 12, 2012, the SSA Field Office reported that Plaintiff had provided
sufficient proof of his age but failed to establish proof of his “citizenship.” (Id. at 46).
Plaintiff testified at a hearing before ALJ Richard West on July 10, 2012. (Id. at 76-96).
In the resulting July 17, 2012 decision, the ALJ found that Plaintiff was not entitled to RIB because
he had not established that he was an alien lawfully present in the United States under Pub. L. No.
104-193. (Id. at 8-17). Otherwise, the ALJ determined that Plaintiff had proved his age in
accordance with 20 C.F.R. § 404.716. (Id. at 14).
On August 24, 2012, Plaintiff requested that the Appeals Council review the ALJ’s
decision, asserting that the ALJ had not subpoenaed records as Plaintiff requested. (Id. at 7). On
January 14, 2014, the Appeals Council denied Plaintiff’s application for review, noting that the
record did not show Plaintiff ever made a subpoena request and that Plaintiff, in his application
for review, had failed to describe the documents that he wanted subpoenaed. (Id. at 2-4). Upon
the Appeals Council’s denial, the ALJ’s decision became the Commissioner’s final decision. See
20 C.F.R. § 404.981.
On March 21, 2014, Plaintiff initiated this action and requested to proceed in forma
pauperis. (See D.E. No. 1). Plaintiff’s request to proceed in forma pauperis was granted on July
16, 2014. (D.E. No. 3). The Commissioner filed an answer to the complaint on October 2, 2014.
(D.E. No. 8). On February 19, 2015, Plaintiff submitted a one-page letter brief in support of his
position. (D.E. No. 13, Brief (“Pl. Mov. Br.”)). The entirety of Plaintiff’s argument is that he
“hopes a jury of his peers will accept his position that when [he] was made a ward of the state of
New York in 1961 and sent to an orphanage he had no willful intent to be an illegal immigrant and
he is not undocument [sic] and intitled [sic] to receive his retirement benefits.” (Id.). On April 7,
2015, the Commissioner filed a brief in opposition, arguing that substantial evidence supports the
ALJ’s determination that Plaintiff had not sufficiently established lawful presence in the United
States. (D.E. No. 14-1, Defendants’ Brief Pursuant to Local Civil Rule 9.1). Plaintiff did not file
The matter is now ripe for adjudication.
A. Standard for Awarding RIB
An individual is entitled to RIB if that individual has accumulated sufficient Social
Security earnings to be “fully insured,” if the individual is at least 62 years old, and if he or she
has applied for benefits. 8 U.S.C. § 402(a); 20 C.F.R. § 404.310. However, an alien may not be
paid benefits “for any month during which such alien is not lawfully present in the United States
as determined by the Attorney General.” 8 U.S.C. § 402(y).
The “lawfully present” language, which appears in the statutes specifically governing
RIB benefits, is also present in a statute that outlines general eligibility requirements for aliens to
receive federal public benefits. See 8 U.S.C. § 1611. Under subsection (a) of that statute, “an
alien who is not a qualified alien . . . is not eligible for any Federal public benefit,” but under
subsection (b)(2), an exception states that “[s]ubsection (a) . . . shall not apply to any benefit
payable under title II of the Social Security Act [42 U.S.C. § 401 et seq.] to an alien who is
lawfully present in the United States as determined by the Attorney General.” 8 U.S.C. §
The Attorney General, through regulations promulgated by the Department of Homeland
Security (“DHS”), has defined the phrase “an alien who is lawfully present in the United States”
to mean “[a] qualified alien as defined in 8 U.S.C. 1641(b).” 8 C.F.R. § 1.3(a)(1). In turn, a
means an alien who, at the time the alien applies for, receives, or attempts to receive
a Federal public benefit, is –
(1) an alien who is lawfully admitted for permanent residence under the
Immigration and Nationality Act [8 U.S.C. 1101 et seq.],
(2) an alien who is granted asylum under section 208 of such Act [8 U.S.C. 1158],
(3) a refugee who is admitted to the United States under section 207 of such Act [8
(4) an alien who is paroled into the United States under section 212(d)(5) of such
Act [8 U.S.C. 1182 (d)(5)] for a period of at least 1 year,
(5) an alien whose deportation is being withheld under section 243(h) of such Act
[8 U.S.C. 1253] (as in effect immediately before the effective date of section 307
of division C of Public Law 104–208) or section 241(b)(3) of such Act [8 U.S.C.
1231 (b)(3)] (as amended by section 305(a) of division C of Public Law 104–208),
(6) an alien who is granted conditional entry pursuant to section 203(a)(7) of such
Act [8 U.S.C. 1153 (a)(7)] as in effect prior to April 1, 1980; or
(7) an alien who is a Cuban and Haitian entrant (as defined in section 501(e) of the
Refugee Education Assistance Act of 1980).
8 U.S.C. § 1641(b) (brackets in original and footnotes omitted).
SSA’s Program Operations Manual System (“POMS”), which details SSA’s internal
procedural guidelines, see generally SOCIAL SECURITY ADMINISTRATION, PROGRAM OPERATIONS
MANUAL SYSTEM [hereinafter POMS], explains the procedure and documents necessary to
establish “lawfully present” status for each of the above categories of “qualified alien,” POMS,
RS 00204.025(B) - Evidence Requirements for Establishing U.S. Lawful Presence (effective Oct.
https://secure.ssa.gov/apps10/poms.nsf/lnx/0300204025; see also POMS, SI 00502.130 –
Documentary Evidence of Qualified Alien Status (effective Mar. 17, 2010), available at
In general, an alien’s lawful presence is established upon the alien’s submission of an
acceptable immigration document and SSA’s verification of that document with DHS via the
Systematic Alien Verification for Entitlements (“SAVE”) program. POMS, RS 00204.020(C) –
Developing Lawful Presence of an Alien in the U.S. (effective May 7, 2013) [hereinafter
https://secure.ssa.gov/apps10/poms.nsf/lnx/0300204020; Evidence Requirements, at (B)(1). “An
‘acceptable’ document means that it is the right form as indicative of a particular alien lawfully
present status (e.g., an I-551 for [Lawfully Admitted Permanent Residents (“LAPR”)]) and it is a
document that meets SSA’s standard for probative value (i.e., [SSA] can tell that it’s authentic).”
Developing Lawful Presence, at (C).
Potential acceptable documents are numerous and vary according to the specific qualified
alien category in which an individual might fall; for example, I-551 cards are used to verify LAPR
status and form G-845 is used to verify aliens granted conditional entry pursuant to the
Immigration and Nationality Act. Evidence Requirements, at (B)(1). However, in any case, it is
clear that “[o]nly original, unexpired DHS documents are acceptable.” POMS GN 00303.400(A)
B. Standard of Review
This Court has jurisdiction to review the Commissioner’s decision under 42 U.S.C.
§ 405(g). The Court must affirm the Commissioner’s decision if it is “supported by substantial
evidence.” 42 U.S.C. §§ 405(g), 1383(c)(3); Stunkard v. Sec’y of Health & Human Servs., 841
F.2d 57, 59 (3d Cir. 1988); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986). Substantial evidence
is more than a “mere scintilla” of evidence and “means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
The Court is bound by the ALJ’s findings that are supported by substantial evidence “even
if [it] would have decided the factual inquiry differently.” Hartranft v. Apfel, 181 F.3d 358, 360
(3d Cir. 1999). Thus, this Court is limited in its review in that it cannot “weigh the evidence or
substitute its conclusions for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182
(3d Cir. 1992) (internal citation omitted).
The issue before the Court is whether substantial evidence supports the ALJ’s finding that
Plaintiff had not established that he is an alien who is lawfully present in the United States, as
determined by the Attorney General. (Tr. at 16); see 8 U.S.C. § 1641(b)(1).
As a preliminary matter, the Court notes that although Plaintiff requests a jury, (Pl. Mov. Br. at 1), he is not permitted
one under the statute that authorizes this Court’s review. See 42 U.S.C. § 405(g).
A. The ALJ’s Decision
In a decision dated July 17, 2012, ALJ West, after “careful consideration of the entire
record,” made the following findings:
The claimant was found not entitled to Title II retirement benefits based on a
filing date of May 25, 2011 due to failure to establish alien lawful presence in
The documentation submitted by the claimant concerning custody and
placement when he was a minor child does not establish lawful presence as
determined by the Department of Homeland Security.
The claimant is not entitled to [RIB] because he has not established lawful
presence in the U.S. as an alien under P.L. 104-193 Section 401(a).
(Tr. at 16). ALJ West noted that while he had “no reason to question the sincerity of the claimant’s
testimony, the statute and the Programs Operational Manual provisions make clear [the] need for
strict adherence to evidentiary requirements of lawful presence.” (Id.).
B. The Evidence in the Record
Plaintiff’s primary argument before the ALJ was that he was granted permanent residency
status through a New York state court order that brought him into the custody of the state, and that
he was thereafter assigned an alien registration number and a Social Security number. (Id. at 15).
ALJ West considered the following evidence in reaching his decision.
Plaintiff testified that he was born on June 20, 1949, (id. at 80), and has two siblings named
Carlos Padilla and Claudia Padilla, (id. at 84). Although Plaintiff could not say when he came to
the United States, he averred that he had lived in the United States “[s]ince I can remember.” (Id.
at 83, 88). According to Plaintiff’s testimony, the Immigration Department took photographs of
Plaintiff and his siblings and gave them alien registration numbers around the year 1962 or 1963,
when they were placed in Lakeside School. (Id. at 84). Plaintiff testified that he has a Social
Security number but no “green card.” (Id. at 89). However, Plaintiff stated, he had never had
trouble working; indeed, he had provided employers with his Social Security number, they would
“run it through Homeland Security and everything else like that,” and “[i]t doesn’t come back that
[Plaintiff is] an illegal alien.” (Id.). Similarly, Plaintiff averred that he had never had trouble
obtaining a driver’s license using New York state court documents that reflected he was, in the
early 1960s, placed in the custody of the Department of Children’s Welfare. (See id. at 83-84, 8687).
Plaintiff obtained verification from “the Maturation Court” that his documents are
authentic. (Id. at 87-88). But Plaintiff testified that, because the records regarding his alien
registration number had not been accessed for “so many years,” accessing those records might be
problematic. (Id. at 85). Indeed, according to Plaintiff, although he had filed a request for his
records pursuant to the Freedom of Information Act in 2002, he was told that “It’s not even in our
computers.” (Id. at 85-86). Plaintiff testified to his belief that no other document existed or could
exist in the government’s possession that supported his claim. (Id. at 82, 91).
SSA documents reflect that Plaintiff was born in Colombia in 1949, (id. at 36), although
he did not have a birth certificate that confirmed his birthdate of June 20, 1949, (id. at 45). An
SSA “Report of Contact” noted Plaintiff’s contention that his United States citizenship
commenced on August 1, 1959. (Id.).
Plaintiff submitted to SSA documents relating to early 1960s court proceedings that
encompassed delinquency, neglect, and custody of Plaintiff and his siblings. (Id. at 19-23). On
January 17, 1961, the State of New York’s Domestic Relations Court of the City of New York
(Children’s Court Division) filed a petition alleging that Plaintiff was a delinquent child on the
ground that Plaintiff was a truant and had “deserted” his home on several occasions without is
father’s consent. (Id. at 19-20, 23). On April 13, 1961, the delinquent petition was dismissed and
a neglect petition was filed. (Id. at 23). On June 23, 1961, a court adjudged Plaintiff a neglected
child. (Id. at 69-70). On July 13, 1961, another delinquent petition was filed against Plaintiff, he
was committed to Highland State School on August 3, 1961, and that commitment was vacated on
January 12, 1962. (Id. at 23). Plaintiff and his siblings were ultimately placed in Lakeside School.
(Id. at 71).
On November 28, 1962, the Office of Probation for the City of New York wrote a letter to
Lakeside School asking whether the school would accept Plaintiff “on full commitment or
additional remand.” (Id.). Effective January 16, 1966, a New York state Family Court extended
Plaintiff’s placement in Lakeside School for one year. (Id. at 72-73). On January 15, 1967,
Lakeside School recommended that Plaintiff be placed in the custody of the Commissioner of
Welfare of the City of New York, and that Plaintiff continue at Lakeside School. (Id. at 68). On
the same day, Plaintiff was discharged to the custody of the Commissioner of Welfare. (Id. at 23).
On May 12, 1967, the Department of Welfare authorized Plaintiff’s admission to the foster care
program. (Id. at 74).
In August 1967, the Acting Assistant District Director for Investigations of the United
States Department of Justice Immigration and Naturalization contacted Lakeside School, asking
for photographs of Plaintiff and his siblings to be used in an investigation of their immigration
status. (Id. at 18). The Acting Assistant District Director also asked for information regarding
their current situation at Lakeside School. (Id.).
No documents in the record are dated between 1968 and 2010.
After Plaintiff filed for RIB, SSA sought to verify Plaintiff’s alien status via DHS’s SAVE
program. (Id. at 36, 45). On June 8, 2011, SSA submitted to the United States Citizenship and
Immigration Services (“USCIS”) all of the documents that Plaintiff presented along with his
application for RIB. (Id. at 30-31, 37). In response, USCIS indicated that no determination could
be made from the information Plaintiff had submitted, and requested that Plaintiff submit a copy
of his original alien registration records and resubmit the documentation. (Id. at 31). Specifically,
Please advise [sic] applicant to local USCIS office with original immigration
document to obtain current, valid DHS issued immigration document. Then advise
applicant to submit new G-845. Thank you!
*Valid DHS issued immigration documents for verification are: I-94, Temp. I-551
Stamp, I-551, I-766, I-20, DS2019, Naturalization Certificate, etc.* Thank you!
SSA subsequently informed Plaintiff that his records did not contain information that he
was either a U.S. citizen or an alien lawfully present in the United States, that SSA required proof
of such status to pay RIB, and that Plaintiff should provide original immigration documents to his
local “Immigration office” to obtain proper documentation. (Id. at 37). Once that issue was
resolved, he could return to his local SSA office and re-apply for RIB. (Id.).
C. ALJ West’s Conclusion is Supported by Substantial Evidence
As detailed by the Commissioner, an alien who is not a “qualified alien” within the meaning
of 8 U.S.C. § 1641 is generally ineligible to receive federal public benefits, including RIB. 8
U.S.C. § 1611(b)(2); 42 U.S.C. § 402(y). As detailed above, POMS requires that qualified alien
status be proved by evidence consisting of specific documents in original form in order for SSA
to pay benefits to an individual seeking RIB.
The Court agrees with the Commissioner’s position that SSA is entitled to require
acceptable immigration documents that establish an RIB applicant’s current status, and to require
verification of that status by DHS before paying benefits. By verifying through DHS’s SAVE
program, the POMS directives “reflect the SSA’s efforts to prevent document fraud, and to
implement the requirements of 42 U.S.C. § 402(y) that only persons lawfully present in the United
States are eligible for benefits,” as required under the law. Taylor v. Barnhart, 399 F.3d 891, 897
(8th Cir. 2005).
Although “[t]he POMS does not have the force of law, . . . it is persuasive authority.”
Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1005 (9th Cir. 2006) (citation omitted).
Indeed, as the Supreme Court has stated, “administrative interpretations” such as POMS warrant
respect, regardless whether they are “products of formal rulemaking.” See Wash. State Dep’t of
Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 385 (2003); see also Artz
v. Barnhart, 330 F.3d 170, 176 (3d Cir. 2003) (same); Wilson v. Apfel, 81 F.Supp.2d 649, 653
(W.D. Va. 2000) (noting that the POMS guidelines represent the Commissioner’s interpretation of
the governing statutes and regulations, and so are entitled to some deference). “[T]he POMS are
entitled to respect as publically available operating instructions for processing Social Security
claims.” Reutter ex rel. Reutter v. Barnhart, 372 F.3d 946, 951 (8th Cir. 2004) (internal quotation
As the record reveals, Plaintiff here submitted to SSA documents from the early 1960s
reflecting court proceedings that dealt with Plaintiff’s neglect and delinquency and Plaintiff’s
eventual placement in the custody of the Commissioner of Welfare of the City of New York. (See
Tr. at 19-23). Plaintiff also submitted a 1967 letter that indicated Plaintiff was under investigation
by the Immigration and Naturalization Services regarding his immigration status. (Id. at 18). SSA
submitted those documents to USCIS, which advised SSA that no determination could be made as
to Plaintiff’s legal status from the information submitted. (Id. at 30-32). USCIS also described
exactly the procedure Plaintiff would have to follow in order to obtain verification; that is, securing
a valid, DHS-issued immigrant document from the local USCIS office and resubmitting
documentation. (Id. at 31).
In other words, USCIS concluded that Plaintiff’s submissions do not constitute valid forms
of proof of legal status. Plaintiff submitted essentially the same type of documentation to ALJ
West. (See id. at 68-74). Tellingly, Plaintiff conceded in his testimony that no type of document
existed or could exist in the government’s possession that could support his claim. (Id. at 82, 91).
The Act clearly prohibits the payment of Title II benefits to an alien who is not lawfully
present in the United States, as determined by the Attorney General. 42 U.S.C. § 402(y). DHS
found that no determination could be made from the information provided by Plaintiff and advised
that additional verification was needed. The ALJ therefore correctly found that Plaintiff’s lawful
presence in the United States, as defined by the Attorney General, was not verified by the
documents. (Tr. at 10, 31-32, 36).
The Court finds that substantial evidence (or the lack thereof) supports the ALJ’s
determination. See Richardson, 402 U.S. at 401. Accordingly, the Court must affirm the ALJ’s
decision. See 42 U.S.C. §§ 405(g), 1383(c)(3); Stunkard, 841 F.2d at 59.
For the reasons stated above, the final decision entered by ALJ West is affirmed. An
appropriate Order accompanies this Opinion.
s/ Esther Salas_______
Esther Salas, U.S.D.J.
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