MacNeil v. Colvin

Filing 22

MEMORANDUM-DECISION and ORDER - That MacNeil's letter motion seeking oral argument (Dkt. No. 20) is DENIED. That Magistrate Judge Christian F. Hummel's February 8, 2016 15 Report-Recommendation and Order is ADOPTED in its entirety. That the decisions of the Comissioner are AFFIRMED and MacNeil's complaint (Dkt. No. 1) is DISMISSED. That the Clerk close this case. Signed by Senior Judge Gary L. Sharpe on 4/26/2016. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
SHARON MACNEIL, on her
own behalf and o/b/o her minor
children A.T.M. and C.E.M.,
Plaintiff,

1:14-cv-1398
(GLS/CFH)

v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Hughes, Hubbard Law Firm
One Battery Park Plaza
12th Floor
New York, NY 10004
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Senior District Judge

HAGIT M. ELUL, ESQ.
MILES D. ORTON, ESQ.

SANDRA M. GROSSFELD
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Sharon MacNeil, on her own behalf and o/b/o her minor
children A.T.M and C.E.M., challenges defendant Commissioner of Social
Security’s denial of Disability Insurance Benefits, seeking review under 42
U.S.C. § 405(g). (Compl., Dkt. No. 1.) In a Report-Recommendation and
Order (R&R) filed February 8, 2016, Magistrate Judge Christian F. Hummel
recommended that the Commissioner’s decisions be affirmed. (Dkt. No.
15.) Pending are MacNeil’s objections to the R&R. (Dkt. No. 16.) For the
reasons that follow, the court adopts the R&R in its entirety.1
II. Background2
On October 8, 2009, MacNeil filed applications for child’s survivor
insurance benefits under the Social Security Act (“the Act”) on behalf of her
two minor children. (Tr.3 at 33-36.) MacNeil sought such benefits on the

1

The court is in receipt of MacNeil’s April 2016 letter requesting oral argument on her
objections. (Dkt. No. 20.) The court has considered this request and determined that oral
argument is unnecessary. Accordingly, MacNeil’s request is denied.
2

The court incorporates the factual recitations of the parties and Judge Hummel. (See
generally Dkt. Nos. 15, 16, 19.)
3

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 10.)

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wage earnings record of her deceased husband. (Id. at 33, 58-59.) After
her applications were denied, MacNeil requested a hearing before an
Administrative Law Judge (ALJ) and a hearing was scheduled for
December 14, 2012. (Id. at 78-79, 142, 147.) A hearing was not ultimately
held, however, as the sole issue in dispute was a matter of law, rather than
a matter of fact, and MacNeil was “amenable to waiving an evidentiary
hearing.” (Id. at 18, 27.) The legal question before the ALJ was whether
MacNeil’s children, conceived through in vitro fertilization and born more
than eleven years after the death of her husband, are “children” of the
deceased wage earner, within the meaning of Social Security Law. (Id.)
On February 14, 2013, the ALJ issued two nearly identical decisions
denying the requested benefits, which became the Commissioner’s final
determination upon the Social Security Administration Appeals Council’s
denial of review.4 (Id. at 3-12, 15-32.)
MacNeil commenced the present action by filing a complaint on
November 18, 2014, seeking judicial review of the Commissioner’s
determination. (Compl.) After receiving the parties’ briefs, Judge Hummel

4

The ALJ issued identical, yet separate decisions for each of MacNeil’s children. (Tr. at
18-23, 27-32.)

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issued an R&R recommending that the Commissioner’s decisions be
affirmed. (See generally Dkt. No. 15.)
III. Standard of Review
By statute and rule, district courts are authorized to refer social
security appeals to magistrate judges for proposed findings and
recommendations as to disposition. See 28 U.S.C. § 636(b)(1)(A), (B);
N.D.N.Y. L.R. 40.1, 72.3(d); General Order No. 18. Before entering final
judgment, this court reviews report and recommendation orders in cases it
has referred to a magistrate judge. If a party properly objects to a specific
element of the magistrate judge’s findings and recommendations, this court
reviews those findings and recommendations de novo. See Almonte v.
N.Y. State Div. of Parole, No. Civ. 904CV484GLS, 2006 WL 149049, at *3,
*5 (N.D.N.Y. Jan. 18, 2006). In cases where no party has filed an
objection, only vague or general objections are made, or a party resubmits
the same papers and arguments already considered by the magistrate
judge, this court reviews the findings and recommendations of the
magistrate judge for clear error. See id. at *4-5.
IV. Discussion
In the R&R, Magistrate Judge Hummel recommended that this court
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affirm the ALJ’s determination that MacNeil’s children cannot inherit under
the New York State Estates, Powers and Trusts Law (EPTL), and, thus,
are not deemed “children” under the Social Security Law.5 (Dkt. No. 15 at
11-17.) Further, he concluded that the ALJ did not violate the children’s
Fifth Amendment right to equal protection. (Id. at 17-19.) MacNeil
purports to object to the R&R on numerous grounds. Specifically, she
asserts that Judge Hummel: (1) improperly interpreted New York case law
to support his interpretation of the EPTL; (2) wrongly determined that the
ALJ and Appeals Council analyzed the correct section of the EPTL; (3)
“applied the ALJ’s erroneous determination that” such incorrect section of
the EPTL “implicitly barred all posthumously-conceived children from
inheriting under the intestacy statute”; (4) erroneously determined that
intermediate scrutiny did not apply to MacNeil’s equal protection claim; and
(5) incorrectly analyzed her equal protection claims under rational basis
review. (Dkt. No. 16 at 3-15.)6 The substance of the third and forth
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“Under 42 U.S.C. § 416(h)(2)(A), an applicant is eligible to receive child’s survivor
nsurance benefits through a deceased, insured worker, only if the intestacy law of the
deceased’s domiciliary state would recognize the applicant as a ‘child’ of the deceased.” Bosco
ex rel. B.B. v. Colvin, No. 10 Civ. 7544, 2013 WL 3357161, at *1 n.2 (S.D.N.Y. July 3, 2013).
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MacNeil also contends that Judge Hummel improperly analyzed the ALJ’s decision
under a “substantial evidence” standard, as opposed to determining whether the ALJ’s
conclusions were based on errors of law. (Dkt. No. 16 at 4 n.1.) However, the court notes that
Judge Hummel correctly laid out the standard of review a district court must apply in evaluating

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arguments was previously raised in MacNeil’s brief and considered and
rejected by Judge Hummel. (Compare Dkt. No. 11 at 16-19, 19-23, with
Dkt. No. 16 at 6-9, 13-14.) These “objections,” therefore, are general and
invoke review only for clear error. See Almonte, 2006 WL 149049 at *4.
MacNeil’s remaining three arguments — that Judge Hummel
overlooked the fact that the ALJ and Appeals Council did not analyze the
correct section of the EPTL, improperly interpreted New York case law,
and erroneously applied rational basis review — contain specific legal
objections to Judge Hummel’s conclusions, and the court will review these
objections to the R&R de novo.
A.

N.Y. EPTL § 4-1.2
MacNeil asserts that Judge Hummel, unlike the Commissioner,

he Commissioner’s findings of fact and conclusions of law. (Dkt. No. 15 at 3-5); see 42 U.S.C.
§ 405(g); Christiana v. Comm’r of Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at
*1-2 (N.D.N.Y. Mar. 19, 2008) (“When reviewing the Commissioner’s final decision under 42
U.S.C. 405(g), the court must determine whether the correct legal standards were applied and
whether substantial evidence supports the decision. . . . Failure to apply the correct legal
standards is grounds for reversal.” (internal quotation marks and citations omitted)). Judge
Hummel then evaluated the applicable Social Security Law, the New York EPTL, and the rules
of statutory construction and concluded that, as the ALJ pointed out, EPTL § 4-1.1(c) indicates
hat children born during the decedent’s lifetime are eligible to inherit, while children not born
during the decedent’s lifetime are not. (Dkt. No. 15 at 5-7, 11-14.) Judge Hummel explicitly
ound that “the ALJ applied proper principles of statutory interpretation” and, further, that the
Commissioner’s reading of the EPTL “reflects the plain meaning of” the statute. (Id. at 14.)
Accordingly, while Judge Hummel found that “substantial evidence supports the
Commissioner’s conclusion that New York intestacy law then in effect did not allow a
posthumously] conceived child to inherit intestate,” (id. at 17), it is abundantly clear that he
determined that the ALJ’s conclusions were not based on errors of law.

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“actually analyzed EPTL’s section 4-1.2’s application to the MacNeil
children.” (Dkt. No. 16 at 5.) According to MacNeil, the failure of the ALJ
“to even mention the applicable law . . . demonstrates that the
Commissioner did not apply the proper legal standards and constitutes a
basis for reversal.” (Id.) Judge Hummel considered MacNeil’s arguments
with respect to EPTL § 4-1.2, and “disagree[d] with [her] that the ALJ
ignored the effect of EPTL 4-1.2.” (Dkt. No. 15 at 12.) MacNeil now
“objects to [Judge Hummel]’s disagreement.” (Dkt. No. 16 at 5.) A review
of the ALJ’s decisions, however, convinces the court that the ALJ did not
ignore section 4-1.2 of the EPTL.
As relevant here, that section provides that “[a] non-marital child7 is
the legitimate child of his father so that he and his issue inherit from his
father and his paternal kindred if . . . paternity has been established by
clear and convincing evidence.” N.Y. EPTL § 4-1.2(a)(2)(C) (McKinney’s
2016). Although the ALJ did not cite this provision, he determined that
there was “clear and convincing evidence that the [children] are indeed the

7

Because a marriage ends at the death of a spouse, MacNeil’s children are non-marital
children. See Bosco ex rel. B.B. v. Astrue, No. 10 Cv. 07544, 2013 WL 3358016, at *7
S.D.N.Y. Feb. 19, 2013), report and recommendation adopted in part, rejected in part sub
nom. Bosco ex rel. B.B. v. Colvin, 2013 WL 3357161.

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biological children of the deceased wage earner.” (Tr. at 19-20.) This did
not end the ALJ’s analysis of whether the children could inherit from their
father, however. Instead, the ALJ went on to consider EPTL § 4-1.1(c) —
which declares that children conceived before the death of the decedent,
but born thereafter, take as if they were born in the decedent’s lifetime —
and determined that this language indicates that children born during the
decedent’s lifetime are treated in a different manner than those who are
not. (Id. at 20-21.) Accordingly, the court agrees with Judge Hummel that
the ALJ did not fail to apply the applicable provisions of the EPTL, (Dkt.
No. 15 at 12), and MacNeil’s claim that the case must be remanded for the
ALJ to consider the applicable EPTL provision is without merit.
B.

New York Case Law
According to MacNeil, the New York case law Judge Hummel cited in

his decision does not support his “interpretation of a total barrier preventing
posthumously-conceived children from inheriting under the intestacy
statute.” (Dkt. No. 16 at 9-10.) Again, the court finds MacNeil’s arguments
to be without merit.
In her attempt to distinguish the present case from In re Uhl, 33
A.D.3d 181 (4th Dep’t 2006), MacNeil fails to acknowledge the proposition
8

Judge Hummel and the ALJ relied on. (Id. at 10; Tr. at 20.) In that case,
the New York State Appellate Division, Fourth Department held that the
rights of persons having an interest in an estate are fixed as of the date of
death. 33 A.D.3d at 184-85. MacNeil fails to point to any authority that
contradicts this proposition. (Dkt. No. 16 at 10.) Further, MacNeil
complains that the “passing dicta” in In re Martin B., 17 Misc. 3d 198 (N.Y.
Surr. Ct. 2007), should be read in context of the Surrogate Court’s ultimate
determination in that case that posthumously-conceived children were
issue and descendants for purposes of the trust language that the court
was tasked with interpreting. (Dkt. No. 16 at 11.) Once again, MacNeil’s
argument misses the mark. Regardless of any trust language that is
irrelevant to the case at hand, the Surrogate Court noted that, in New York,
the right of a posthumous child to inherit in intestacy or as an after-born
child under a will is limited to a child conceived during the decedent’s
lifetime,8 and, further, the Court explained that “[s]uch limitation was
intended to ensure certainty in identifying persons interested in an estate
8

As noted by Judge Hummel, (Dkt. No. 15 at 7 n.6), the EPTL was amended in 2014 to
allow for inheritance of a child conceived after the death of a genetic parent if the child is in
utero no later than twenty-four months after the genetic parent’s death or born no later than
hirty-three months after the genetic parent’s death. See N.Y. EPTL § 4-1.3. The parties
agree, however, that this provision does not apply here, as the amendment became effective
after the date of the Commissioner’s final decision. (Dkt. No. 15 at 7 n.6; Dkt. No. 19 at 7 n.3.)

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and finality in its distribution.” 17 Misc. 3d at 201. Lastly, although
MacNeil is correct in noting that the decision in Bosco ex rel. B.B., 2013
WL 3358016, is not controlling here, (Dkt. No. 16 at 11), the court finds the
reasoning of the Magistrate Judge’s report and recommendation in that
case persuasive. For all of these reasons, MacNeil’s arguments fail.
C.

Rational Basis Review
Finally, MacNeil argues that “even if rational basis review was

appropriate” the Commissioner’s “erroneous interpretation of the New York
intestacy law [does not] meet[]” this standard. (Dkt. No. 16 at 14-15.)
MacNeil contends that the Commissioner’s interpretation of New York
intestacy law draws an arbitrary and erroneous distinction to exclude some,
but not all, posthumously-born children from inheriting, and that this
distinction cannot be reasonably related to any government interest. (Id. at
15.) In particular, MacNeil contends that this distinction cannot be
reasonably related to the government’s interest in reserving benefits for
those children who have lost a parent’s support. (Id.) The court disagrees.
As Judge Hummel explained, because children conceived after the death
of an insured wage earner do not lose the actual or anticipated support of
that parent, the distinction drawn in the EPTL and applied by the
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Commissioner is reasonably related to the government’s interest in
reserving benefits for those children who have lost a parent’s support.
(Dkt. No. 15 at 15-16, 19.)
D.

Remaining Findings and Conclusions
As to the remainder of MacNeil’s objections, the court, having

carefully reviewed the record, finds no clear error in the R&R and accepts
and adopts it in its entirety.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that MacNeil’s letter motion seeking oral argument (Dkt.
No. 20) is DENIED; and it is further
ORDERED that Magistrate Judge Christian F. Hummel’s February 8,
2016 Report-Recommendation and Order (Dkt. No. 15) is ADOPTED in its
entirety; and it is further
ORDERED that the decisions of the Commissioner are AFFIRMED
and MacNeil’s complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
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IT IS SO ORDERED.
April 26, 2016
Albany, New York

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