Turner v. Commissioner of Social Security

Filing 22

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Turner's complaint (Dkt. No. 1) is DISMISSED. That the Clerk close this case. Signed by Senior Judge Gary L. Sharpe on 3/20/2017. (Copy served via regular and certified)(jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
CHRISTINE M. TURNER,
Plaintiff,

1:15-cv-1039
(GLS)

v.
NANCY BERRYHILL,1
Acting Commissioner of
Social Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Christine M. Turner
Pro Se
2914 State Route 22
Cambridge, NY 12816
FOR THE DEFENDANTS:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

KATHRYN S. POLLACK
Special Assistant U.S. Attorney

Steven P. Conte
Regional Chief Counsel
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278

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The Clerk is directed to amend the caption and substitute Nancy Berryhill as the
Acting Commissioner of Social Security. See Fed. R. Civ. P. 25(d).

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Christine Turner challenges the Commissioner of
Social Security’s denial of widow’s insurance benefits (WIB), seeking
judicial review under 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.) After
reviewing the administrative record and carefully considering Turner’s
arguments, the Commissioner’s decision is affirmed and the complaint is
dismissed.
II. Background
In 2012, Turner filed an application for WIB under the Social Security
Act (“the Act”). (Tr.2 at 12-18.) After her application and her request for
reconsideration were denied, (id. at 21-22, 58-62), Turner requested a
hearing before an Administrative Law Judge (ALJ), (id. at 74), which was
held on February 4, 2014, (id. at 138-51). On February 21, 2014, the ALJ
issued an unfavorable decision finding Turner ineligible for WIB and
denying the requested benefits, (id. at 6-11), which became the

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No. 13.)

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt.

Commissioner’s final determination upon the Appeals Council’s denial of
review, (id. at 2-4).
Turner commenced this action by filing her complaint on August 25,
2015 wherein she sought review of the Commissioner’s determination.
(See generally Compl.) The Commissioner filed an answer and a certified
copy of the administrative transcript. (Dkt. Nos. 12, 13.) Each party,
seeking judgment on the pleadings, filed a brief. (Dkt. Nos. 19, 21.)
III. Contentions
Turner contends that the ALJ erred in denying her benefits because
she had been married to the wage earner for a total of twelve years. (Dkt.
No. 19 at 1.) Specifically, Turner asserts that the Social Security
Administration’s (SSA) website did not indicate that she needed to be
married to the wage earner for ten consecutive years as opposed to at
least ten total years. (Id.) In response, the Commissioner argues that the
ALJ’s determination was supported by substantial evidence because
Turner was not married to the insured for ten calendar years before their
final divorce as required by the Act. (Dkt. No. 21 at 3-6.)
IV. Facts
The court adopts the undisputed factual recitations of the parties and
the ALJ. (Dkt. No. 19 at 1-5; Dkt. No. 21 at 2; Tr. at 10-11.) That said, the

court highlights certain relevant facts. Turner twice married and divorced
the wage earner in New York. (Tr. at 27-30, 32-36.) Turner first married
the wage earner on July 10, 1971, and they subsequently divorced after six
years on September 26, 1977. (Id. at 27-30.) Turner remarried the wage
earner on March 30, 1980, and they again divorced after six years on
March 26, 1986. (Id. at 32-36.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g) is well established and will not be repeated here. For a
full discussion of the standard, the court refers the parties to its previous
decision in 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).3
VI. Discussion
A.

WIB Eligibility
A surviving divorced spouse is eligible for WIB. See 42 U.S.C.

§ 402(e). To qualify for these benefits, a claimant must, among other
things, be validly married to a wage earner for at least ten years
immediately before their final divorce. See 42 U.S.C. § 416(d)(2); 20
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Although Christiana evaluates the Commissioner’s denial of disability benefits, district
courts employ the same standard of review to assess the denial of WIB. See Harper v.
Astrue, No. 05-CV-924, 2008 WL 4516232, at *1 (E.D.N.Y. Oct. 2, 2008).

C.F.R. § 404.336(a).4 A valid marriage is determined by the state law
where a wage earner had a permanent home upon his death. Id.
§ 404.345. The parties agree, and the court concurs, that New York law
governs this case. (Dkt. No. 19 at 2; Dkt. No. 21 at 5.) As common law
marriage no longer exists in New York, see Morone v. Morone, 50 N.Y.2d
481, 484 (1980), only the years in which a claimant and a wage earner
were married by civil contract are WIB eligible, see N.Y. Dom. Rel. Law
§ 10.
Courts strictly construe the ten-year duration requirement. See, e.g.,
Albertson v. Apfel, 247 F.3d 448, 449-50 (2d Cir. 2001) (rejecting a
claimant’s application because her marriage to the wage earner fell three
days short of ten years). In general, a claimant satisfies this requirement if
she or he was married to the wage earner for ten consecutive years before
divorce. See Program Operations Manual System (POMS) RS 00202.005,
Social Security Administration,
https://secure.ssa.gov/poms.nsf/lnx/0300202005 (last visited Mar. 15,

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As the Commissioner points out, (Dkt. No. 21 at 3 n.2), the ALJ incorrectly cited to
regulations governing a divorced spouse’s insurance benefits rather than widow’s insurance
benefits. This, however, is of no moment because both regulations have the same marriage
eligibility requirements. Compare 20 C.F.R. § 404.331(a)(2), with 20 C.F.R. § 404.336(a)(2).

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2017) (hereinafter “POMS RS 00202.005”) (stating that the duration
requirement is satisfied “if the divorce became final on or after the [tenth]
anniversary of marriage”).5 In certain limited circumstances, the ten-year
period may be interrupted by divorce and remarriage to the same wage
earner. See SSR 67-66, 1967 WL 2987, at *1 (Jan. 1, 1967); POMS RS
00202.005 (noting that the marriage duration requirement before 1979 was
twenty years). To be WIB eligible in such a case, a claimant must remarry
the wage earner “no later than the calendar year immediately following the
calendar year of the divorce.” POMS RS 00202.005; see Davenport v.
Astrue, No. 06-cv-02350, 2008 WL 687362, at *1 (D. Colo. Mar. 11, 2008)
(holding that the years from a claimant’s first marriage to the wage earner
did not count towards her WIB eligibility because their remarriage occurred
years after the first marriage ended in divorce).
Here, Turner is ineligible for WIB because her marriage to the wage
earner did not meet the duration requirement. Turner was married to the
wage earner for a total of twelve years; however, not all of those years

5

Although not legally binding on the Commissioner, see Tejada v. Apfel, 167 F.3d
770, 775 (2d Cir. 1999), POMS entries may be evidence of the Commissioner’s construction of
its regulations and are entitled to some level of deference. See Binder & Binder PC v.
Barnhart, 481 F.3d 141, 151 (2d Cir. 2007).

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occurred “immediately before [her] divorce became final.” 20 C.F.R.
§ 404.336(a)(2). Turner’s first divorce from the wage earner and
remarriage to him did not occur in the same calendar year. (Tr. at 28-30,
31.) Therefore, the years from Turner’s first marriage cannot be counted
towards the ten-year duration requirement. See POMS RS 00202.005;
Davenport, 2008 WL 687362, at *1. Turner remarried the wage earner
before they divorced only six years later. (Tr. at 32-36.) Because New
York does not recognize common law marriage, Turner cannot rely on time
in which she resided with the wage earner while unmarried to make up the
difference. See 20 C.F.R. § 404.345; Morone, 50 N.Y.2d at 484; N.Y.
Dom. Rel. Law § 10. Consequently, Turner is not entitled to WIB because
she was not married to the wage earner for ten years immediately before
her divorce became final. See 42 U.S.C. § 416(d)(2); 20 C.F.R.
§ 404.336(a)(2). As such, the ALJ applied the correct legal standard and
substantial record evidence6 supports her determination.
To the extent that Turner challenges the information provided on the
SSA website, her argument is without merit. As the ALJ notes, (Tr. at 10),

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“Substantial evidence is defined as more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept to support a conclusion.” Alston v.
Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (internal quotation marks and citations omitted).

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SSA regulations control conflicting or inconsistent policy interpretations.
See, e.g., Encarnacion ex rel. George v. Astrue, 568 F.3d 72, 78 (2d Cir.
2009) (finding courts will not defer to policy interpretations that conflict with
agency regulations). Here, the regulations and consistent interpretative
policies require that a claimant must be married to the wage earner for ten
calendar years before the final divorce. See 20 C.F.R. § 404.336(a)(2);
POMS RS 00202.005. Accordingly, any inconsistent information on the
SSA’s website does not control.
B.

Remaining Findings and Conclusions
After careful review of the record, the court affirms the remainder of

the ALJ’s decision as it is supported by substantial evidence.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Turner’s complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.

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IT IS SO ORDERED.
March 20, 2017
Albany, New York

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