Abreu et al v. Colvin
Filing
25
MEMORANDUM AND ORDER granting 14 Motion for Judgment on the Pleadings; denying 20 Motion to Remand: For the reasons discussed above, the plaintiffs' motion for judgment on the pleadings (Docket no. 14) is granted, the defendant's cross-motion (Docket no. 20) is denied, and the case is remanded to the Commissioner for the calculation of benefits. The Clerk of Court shall enter judgment accordingly. (Signed by Magistrate Judge James C. Francis on 10/6/2015) Copies Transmitted By Chambers. (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
INDIANA ABREU, MADELINE MARTINEZ, :
and JAIRO MARTINEZ,
:
:
Plaintiffs,
:
:
- against :
:
CAROLYN W. COLVIN, Acting
:
Commissioner of Social Security,
:
:
Defendant.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
14 Civ. 9240 (JCF)
MEMORANDUM
AND ORDER
There are two issues central to this case.
The first is
whether, under New York law, a DNA test is a sufficient basis for
overcoming the presumption that a child born to a married woman was
fathered by her husband.
This question arises in the context of an
application for child’s insurance benefits, to which the surviving
child of a deceased wage earner is entitled under the Social
Security Act (the “Act”).
The second critical issue is whether,
despite definitive evidence that an applicant is not the biological
offspring of the wage earner, she may nevertheless be “deemed” his
child under the Act.
The plaintiffs, Indiana Abreu and her children, Madeline and
Jairo Martinez, bring this action pursuant to section 205(g) of the
Act, 42 U.S.C. § 405(g), seeking reversal of a decision of the
Commissioner of Social Security (the “Commissioner”), denying Ms.
1
Abreu’s application for benefits on behalf Madeline and Jairo. The
plaintiffs have moved for judgment on the pleadings under Rule
12(c) of the Federal Rules of Civil Procedure.
has
cross-moved,
seeking
a
remand
for
The Commissioner
further
administrative
proceedings. The parties have consented to my jurisdiction for all
purposes pursuant to 28 U.S.C. § 636(c).
For the reasons that
follow, the plaintiffs’ motion is granted and the Commissioner’s
motion is denied.
Background
Indiana Abreu married Santiago Martinez on August 18, 1986.
(R. at 201).1
On September 15, 1988, Ms. Abreu gave birth to her
first child, Madeline.
(R. at 152, 384, 467).
her son Jairo was born on September 15, 1991.
466).
Three years later,
(R. at 153, 383,
In both instances, the birth certificates filed with the
Bureau of Vital Records of the New York City Department of Health
at the time of birth listed Ms. Abreu as the mother and Mr.
Martinez as the father.
(R. at 152-53, 383-84, 466-67).
Mr. Martinez suffered from alcoholism, and, as a result,
sometime after the birth of Jairo, Ms. Abreu initiated divorce
proceedings.
(R. at 549-50).
After the couple separated, Ms.
Abreu obtained a Family Court order of support on March 10, 1992,
1
“R.” refers to the administrative record filed with the
Commissioner’s answer.
2
requiring Mr. Martinez to provide financial assistance for Madeline
and Jairo, whom the order identified as his children.
(R. at 293-
94). The divorce was made final in the Dominican Republic on April
22, 1993 (Tr. at 203-09), and the order of support remained in
effect until December 1996, when Mr. Martinez sought to terminate
it because he was unemployed (R. at 80-81, 397-99, 480-82).
Mr. Martinez died on December 23, 2000 (R. at 70), and on
April
20,
2001,
Ms.
Abreu
filed
an
application
for
child’s
insurance benefits on behalf of Madeline, based on Mr. Martinez’s
insured status.
(R. at 70-72).
Ms. Abreu did not seek benefits on
behalf of Jairo, noting in the application that he was not the
biological son of Mr. Martinez.
eligible
for
a
lump-sum
(R. at 71-72).
death
retroactive to December 2000.
benefit
and
Madeline was found
survivor
benefits
(R. at 77-96).
At some point thereafter, Ms. Abreu apparently initiated
paternity proceedings, alleging that Madeline’s actual father was
a man named Ubaldo Dominguez.
(R. at 103).
She had previously had
Madeline’s surname changed to Dominguez on the child’s birth
certificate.
(R. at 71).
A DNA test was performed in September
2002, which confirmed Mr. Dominguez’s paternity with 99.99 percent
probability.
(R. at 97-103).
Ms. Abreu then presented the report of the DNA test to the
Social Security Administration (the “SSA”) and requested that
3
Madeline’s benefits be terminated, as she was not the child of Mr.
Martinez.
(R. at 104-05).
According to Ms. Abreu, she came
forward with this information because she had joined a church and
felt guilty about having obtained benefits on the basis of false
information.
(R. at 169).
She also stated that Jairo, too, was
the child of Mr. Dominguez rather than Mr. Martinez.
(R. at 169).
On April 17, 2003, the SSA rescinded Madeline’s eligibility for
survivor benefits and ordered repayment of the benefits already
provided, including the lump-sum death benefit.
(R. at 107-15).
On October 22, 2003, Ms. Abreu filed a new application for
survivor benefits on behalf of Madeline and on behalf of Jairo as
well.
(R. at 122-47).
The SSA denied her application based on the
DNA test for Madeline and Ms. Abreu’s prior statements regarding
the paternity of both children.
(R. at 149).
Ms. Abreu sought
reconsideration, alleging that she had made a “mistake” in stating
that Mr. Martinez was not the father of her children because she
had been sick and depressed at the time.
2006, the SSA denied reconsideration.
(R. at 156).
On July 20,
(R. at 44-45).
She then
sought review by an administrative law judge (“ALJ”), the first of
a series of administrative proceedings that will be described
below.
Statutory Scheme
The Social Security Act provides for child’s survivor benefits
4
for the dependent minor children of deceased insured workers.
42
U.S.C. § 402(d); see Bosco ex rel. B.B. v. Astrue, No. 10 Civ.
7544, 2013 WL 3358016, at *4 (S.D.N.Y. Feb. 19, 2013), aff’d in
relevant part, 2013 WL 3357161 (S.D.N.Y. July 3, 2013).
An
applicant is eligible for benefits if “[1] she meets the Act’s
definition of ‘child,’ [2] is unmarried, [3] is below specified age
limits (18 or 19) or is under a disability which began prior to age
22, and [4] was dependent on the insured at the time of the
insured’s death.”
Astrue v. Capato, __ U.S. __, __, 132 S. Ct.
2021, 2027 (2012) (citing 42 U.S.C. § 402(d)(1)); see Bosco, 2013
WL 3358016, at *4; McLaughlin v. Astrue, No. 10 CV 506, 2012 WL
2449938, at *2 (E.D.N.Y. June 27, 2012); Thomas ex rel. N.T. v.
Astrue, 674 F. Supp. 2d 507, 520 (S.D.N.Y. 2009); Howell ex rel.
Howell v. Barnhart, 265 F. Supp. 2d 268, 270-71 (S.D.N.Y. 2003).
The contested issue here is whether Madeline and Jairo each qualify
as a “child” of Mr. Martinez.
A. Status as a “Child”
The Social Security Act defines “child” as, among other
things, “the child or legally adopted child of an individual.”
U.S.C. § 416(e).
42
Fortunately, this “vague tautology,” Bosco, 2013
WL 3358016, at *4; see Capato, __ U.S. at __, 132 S. Ct. at 2029
(referring to § 416(e)’s “tautological definition”), is not the
exclusive statutory definition. Rather, 42 U.S.C. § 416(h) further
5
addresses the term and provides multiple pathways by which an
applicant can be deemed the “child” of the insured.
The primary
route incorporates state intestacy law:
In determining whether an applicant is the child or
parent of a fully or currently insured individual . . .,
the Commissioner of Social Security shall apply such law
as would be applied in determining the devolution of
intestate property by the courts of the State in which
such insured individual is domiciled at the time such
applicant files application, or, if such insured
individual is dead, by the courts of the State in which
he was domiciled at the time of his death . . . .
42 U.S.C. § 416(h)(2)(A); see Capato, __ U.S. at __, 132 S. Ct. at
2028.
Alternatively, even if state intestacy law would not recognize
the applicant as the child of the wage earner, the Act deems her so
“if the insured and the other parent went through a marriage
ceremony
that
impediments.”
would
have
been
valid
but
for
certain
legal
Capato, __ U.S. at __, 132 S. Ct. at 2028 (citing 42
U.S.C. § 416(h)(2)(B)).
Similarly, an applicant is deemed a “child” if the insured
acknowledged
her
in
writing
as
his
daughter.
42
U.S.C.
§
416(h)(3)(C)(i)(I); Capato, __ U.S. at __, 132 S. Ct. at 2028.
Next, the applicant is considered the child of the insured if,
prior to the death of the insured, the insured had been decreed by
a
court
to
be
the
parent
of
the
applicant.
42
U.S.C.
416(h)(3)(C)(i)(II); Capato, __ U.S. at __, 132 S. Ct. at 2028.
6
§
Further, the applicant is deemed the insured’s child if the
insured “had been ordered by a court to contribute to the support
of the applicant because the applicant was his or her son or
daughter.”
42 U.S.C. § 416(h)(3)(C)(i)(III); see Capato, __ U.S.
at __, 132 S. Ct. at 2028.
Finally, “an applicant may gain ‘child’ status upon proof that
the insured individual was the applicant’s parent and ‘was living
with or contributing to the support of the applicant’ when the
insured individual died.”
Capato, __ U.S. at __, 132 S. Ct. at
2028 (quoting § 416(h)(3)(C)(ii)).2
In order to meet this test,
“[c]ontributions must be made regularly and must be large enough to
meet an important part of [the applicant’s] ordinary living costs,”
20
C.F.R.
§
404.366,
and
the
applicant
bears
the
burden
of
producing evidence of contribution, 20 C.F.R. § 404.704.
2
The regulations implementing the Social Security Act appear
to limit the latter four pathways to child status to circumstances
where the applicant’s surviving parent “has not married the
insured.” 20 C.F.R. § 404.355(a)(3), (4). Thus, these deeming
provisions would seem at first glance to be inapplicable in this
case, since Ms. Abreu (the mother of the applicants) was married to
Mr. Martinez (the insured).
But, to the extent that the
regulations could be read to define eligibility more narrowly than
is provided for by the statute, they would be ineffective. In any
event, the Commissioner does not advance any such interpretation of
the regulations in this case. (Memorandum of Law in Opposition to
Plaintiff’s Motion for Judgment on the Pleadings and In Support of
the Commissioner’s Cross-Motion for Remand Pursuant to the Fourth
Sentence of 42 U.S.C. § 405(g) (“Def. Memo.”) at 16-18.
7
B. Dependency
Whether an applicant is considered to have been dependent upon
the insured wage earner is closely tied to whether she is deemed a
child.
For example, a child is considered dependent on the wage
earner if, at the time of death, the wage earner was living with or
contributing to the support of the child.
42 U.S.C. § 402(d)(3).
Alternatively, an applicant is deemed to be dependent if she is
deemed to be the wage earner’s child by means of one of the
alternative
pathways,
including
intestacy
law,
20
C.F.R.
§§
404.361(a) (“If you are the insured’s natural child, as defined in
§ 404.355, you are considered dependent upon him or her . . . .”),
404.355(a)(1) (deeming as the insured’s natural child one who
“could inherit personal property as [the insured’s] natural child
under State inheritance laws”), or pursuant to a court order of
support.
See Capato, __ U.S. at __, 132 S. Ct. at 2027 n.3
(“[A]pplicants ‘deemed’ the child of an insured individual under §
416(h)(2)(B)
or
(h)(3)
are
also
‘deemed
legitimate,’
hence
dependent, even if not living with or receiving support from the
parent.”).
Proceedings Before the Social Security Administration
As noted above, after Ms. Abreu had initially applied for and
begun receiving child’s insurance benefits on behalf of Madeline,
the benefits were terminated when she advised the SSA that Madeline
8
was not the child of Mr. Martinez, the insured.
On October 22,
2003, however, she submitted a new application on behalf of both
Madeline and Jairo.
(R. at 122-27).
When her application was
denied, a hearing was held before ALJ Kenneth L. Sheer.
On
December 2, 2008, ALJ Sheer issued a determination denying benefits
on the grounds that Ms. Abreu had testified that Mr. Marttinez was
not the father of either child and that the DNA test confirmed that
he was not the father of Madeline.
(R. at 59-62).
The ALJ issued
an amended decision on February 26, 2009, that differed only
insofar as it indicated that the post-hearing brief of Ms. Abreu’s
attorney was included in the record.
(R. at 66-69).
Ms. Abreu sought review by the SSA’s Appeals Council, which
vacated the decision and remanded for further proceedings.
221-27).
(R. at
The Appeals Council found as follows:
[Ms. Abreu’s] contention that the claimants are legitmate
children of the wage earner is supported by N.Y. Fam. Ct.
Act § 417 and 532 because they were born of parents who
entered into a ceremonial marriage. In addition, genetic
marker and DNA tests are not ordered by the court if it
is not in the best interest of the child(ren) born to a
married woman.
In this case, although a DNA test
established that the wage earner is not Madeline’s
biological father and Ms. Abreu publicly acknowledged
that the wage earner is not Jario’s [sic] biological
father, he acknowledged paternal responsibilities for the
children through a variety of acts, i.e., child support
payments and hospital birth records. New York State law
also does not permit the termination of an already
established parental relationship regardless of DNA
tests. Additionally, the results of a DNA test cannot
undermine a paternal relationship, which had been
9
established while the parties were married. In the best
interest of the children, equitable estoppel should be
applied because Ms. Abreu permitted a strong bond to be
formed between her husband and children. Therefore, the
Appeals Council finds that the claimants have acquired
the status as the children of the wage earner, and they
are deemed surviving children of the wage earner in
accordance with section 216(h)(2)(A) of the Social
Security Act.
(R. at 224) (citations omitted).
The Appeals Council remanded,
directing the ALJ to consider each of the issues it had identified.
(R. at 225-26).
In addition, it noted that Santiago had fathered
another child, Christopher Martinez, who would be entitled to
benefits and whose interests could be adversely affected by an
award
of
benefits
to
Madeline
and
Jairo.
(R.
at
225).
Accordingly, the Appeals Council directed the ALJ to consider this
issue as well.
(R. at 226).
On remand, the case was assigned to ALJ Paul A. Heymann.
He
held a new hearing, and, on September 2, 2011, issued a decision
denying Ms. Abreu’s application. (R. at 26-31). He concluded that
the record did not demonstrate that Mr. Martinez either was or held
himself out to be the claimants’ father.
(R. at 29).
Mr. Martinez
had never acknowledged in writing that either child was his.
at 29).
(R.
Nor was there a court declaration of paternity; while the
Family Court had ordered Mr. Martinez to pay child support, ALJ
Heymann found this order to have been based on Mr. Martinez’s
marriage
to
Ms.
Abreu,
not
on
10
any
order
of
filiation
or
determination of paternity.
(R. at 29).
In response to the
argument that the state may not delegitimize a child, ALJ Heymann
found that Ms. Abreu, not the state, had undermined the presumption
of legitimacy, both by obtaining the DNA test for Madeline and by
changing the children’s names to Dominguez.
(R. at 29).
Finally,
the ALJ discounted Ms. Abreu’s testimony regarding the extent to
which Mr. Martinez had provided for the children.
(R. at 30).
When Ms. Abreu appealed from this determination, the Appeals
Council was unable to locate the administrative record.
427).
(R. at
It therefore issued a decision on September 18, 2013,
vacating ALJ Heymann’s decision and remanding for a new hearing and
reconstruction of the record.
(R. at 427-28).
ALJ Heymann conducted further proceedings, and on March 27,
2014, he issued a determination denying benefits for substantially
the same reasons as in his prior decision.
(R. at 14-19).
This
time, the Appeals Council denied Ms. Abreu’s request for review.
(R.
at
3).
ALJ
Heymann’s
decision
thus
became
the
final
determination of the Commissioner.
Discussion
Normally, a court’s review of the denial of social security
benefits entails determining whether the Commissioner applied the
correct legal standard and whether the ALJ’s decision was supported
by substantial evidence.
Tejada v. Apfel, 167 F.3d 770, 773 (2d
11
Cir. 1999); Calvello v. Barnhart, No. 05 Civ. 4254, 2008 WL
4452359, at *8 (S.D.N.Y. April 29, 2008).
In this case, however,
the Commissioner does not seek confirmation of the decision denying
benefits; rather, she moves for remand for further development of
the record and proper application of New York law.
1, 20-21).
(Def. Memo. at
The plaintiffs oppose remand and instead seek reversal
of the ALJ’s decision and an order awarding benefits.
(Memorandum
of Law in Support of Plaintiffs’ Motion for Judgment on the
Pleadings (“Pl. Memo.”) at 1, 15).
Remand is appropriate where
“there are gaps in the administrative record or the ALJ has applied
an improper legal standard.”
(2d Cir. 1980).
Parker v. Harris, 626 F.2d 225, 235
On the other hand, an order reversing the
Commissioner and awarding benefits is warranted “when the record
provides persuasive proof of [entitlement] and a remand for further
evidentiary proceedings would serve no purpose.”
Id.; accord
Bradley v. Commissioner of Social Security, No. 12 Civ. 3200, 2015
WL 1069307, at *6 (S.D.N.Y. March 11, 2015); Rivera v. Barnhart,
379 F. Supp. 2d 599, 604 (S.D.N.Y. 2005).
The plaintiffs argue
that the record establishes that Madeline and Jairo are entitled to
benefits by virtue of (1) New York intestacy law, (2) principles of
equitable estoppel, and (3) the Family Court order of support, and
that there is no basis for reopening the administrative proceedings
to consider the interests of Christopher Martinez.
12
A. New York Intestacy Law
New York follows what is known as Lord Mansfield’s Rule: the
presumption that a child born to a married woman is presumed to be
the offspring of her husband.
See In re Estate of Fay, 44 N.Y.2d
137, 141-42, 404 N.Y.S.2d 554, 556 (1978); In re Findlay, 253 N.Y.
1, 7, 170 N.E. 471, 472-73 (1930); State ex rel. H. v. P., 90
A.D.2d 434, 437-38, 457 N.Y.S.2d 488, 490-91 (1st Dep’t 1982). The
plaintiffs argue that this presumption is irrebuttable.
8).3
Not so.
(Tr. at
“[T]he notion that the presumption of legitimacy is
conclusive, such that a ‘court would not listen to evidence casting
doubt on
[the]
paternity’
of
rejected long ago . . . .”
A.D.3d
949,
950-51,
882
a
married
woman’s
husband,
was
In re Marilene S. v. David H., 63
N.Y.S.2d
155,
157
(2d
Dep’t
2009)
(alteration in original) (quoting Findlay, 253 N.Y. at 7, 170 N.E.
at 472).
Indeed, the quotation from Findlay upon which the
plaintiffs rely -- that the presumption “is ‘one of the strongest
and most persuasive’ presumptions in the law” (Reply Memorandum of
Law in Further Support of Plaintiffs’ Motion for Judgment on the
Pleadings at 1) -- is incomplete.
What Judge Cardozo said in that
case is this: “Potent, indeed, the presumption is, one of the
strongest and most persuasive known to the law, and yet subject to
3
“Tr.” refers to the transcript of oral argument held on July
31, 2015.
13
the sway of reason.”
Findlay, 253 N.Y. at 7, 170 N.E. at 472
(internal citation omitted) (emphasis supplied).
He went on to
note that courts had variously found that, in order to overcome the
presumption, evidence must be “clear and convincing,” “strong and
irresistible,” or “beyond all reasonable doubt.”
N.E. at 473.
Id. at 8, 170
Judge Cardozo concluded that “[w]hat is meant by
these pronouncements, however differently phrased, is this and
nothing more, that the presumption will not fail unless common
sense and reason are outraged by a holding that it abides.”
170 N.E. at 473.
Id.,
As one court recently noted, “the presumption was
never intended to suppress a truth and perpetuate a falsehood.” In
re L.M. v. J.S., 6 Misc. 3d 151, 154, 787 N.Y.S.2d 833, 835 (Kings
Fam. Ct. 2004) (citing Sylvia B. v. Ben, 70 Misc. 2d 572, 576, 334
N.Y.S.2d
229,
233
(Nassau
Fam.
Ct.
1972)).
Rather,
“[t]he
presumption of legitimacy, while still serving a laudable purpose,
is nonetheless just another legal presumption to be used in the
absence of conclusive evidence to the contrary.”
at 154, 787 N.Y.S.2d at 835.
L.M., 6 Misc. 3d
Indeed, in Findlay itself, the court
found the presumption overcome because of strong evidence that the
husband and wife were living far removed from each other during the
relevant period.
Findlay, 253 N.Y. at 9-10, 170 N.E. at 473-74.
Here, the evidence rebutting the presumption is at least as
powerful in regard to Madeline’s paternity.
14
The DNA test revealed
a 99.99 percent probability that her biological father was Mr.
Dominguez, not Mr. Martinez.
(R. at 97-103).
Such evidence is
admissible, and indeed may be highly persuasive, under New York
intestacy law.
(S.D.N.Y.
2009)
See Thomas v. Astrue, 674 F. Supp. 2d 507, 522-24
(finding
presumption
overcome
under
New
York
intestacy law and awarding child’s insurance benefits where DNA
showed deceased wage earner, not husband, to be father of child);
In re Poldrugovaz, 50 A.D.3d 117, 118, 129, 851 N.Y.S.2d 254, 255,
263 (2d Dep’t 2008) (approving DNA testing to determine inheritance
rights of nonmarital child); In re Estate of Morningstar, 17 A.D.3d
1060, 1060, 794 N.Y.S.2d 205, 205-06 (4th Dep’t 2005) (“The results
of DNA testing may be used to satisfy [the] burden of establishing
paternity [under New York intestacy law]”).
Accordingly, it would
not be appropriate to order an award of benefits to Madeline on the
ground that the only viable conclusion is that she is the child of
Mr. Martinez under New York intestacy law and therefore eligible
under 42 U.S.C. § 416(h)(2)(A).
The issue is closer with respect to Jairo since no DNA test
has been performed to determine his paternity.
Nevertheless, Ms.
Abreu’s own statements that Mr. Dominguez was Jairo’s biological
father, her conduct in changing the name on the birth certificate
to reflect this, and the fact that even when Ms. Abreu sought
benefits on behalf of Madeline, she did not do so for Jairo, may
15
suffice to overcome the presumption.
Thus, New York intestacy law
does not clearly mandate a finding that Jairo is Mr. Martinez’s
child.
B. New York Public Policy
The plaintiffs also argue that New York state law “provides
assurance of legitimacy,” and that this principle is undermined by
a finding that Madeline and Jairo are not the children of Mr.
Martinez.
(Pl. Memo. at 13-15).
For example, they point to
Richard B. v. Sandra B.B., 209 A.D.2d 139, 625 N.Y.S. 2d 127 (1st
Dep’t 1995), where the court reversed an order for a blood test to
establish the paternity of a child.
The child was born into a
marriage, but the parents subsequently divorced, and the husband
was required to pay child support.
128.
Id. at 140-41, 625 N.Y.S.2d at
The husband, alleging that he had discovered that he had a
serious fertility problem, now denied being the biological father
of the child and sought to set aside the child support provisions
of the divorce decree.
Id. at 141, 625 N.Y.S.2d at 128.
The court
stated:
While blood testing would, as the husband argues, settle
the issue of the child’s paternity, we are not convinced
that, in the circumstances presented, he should be
permitted to disclaim paternity and bastardize the child
when his only apparent reason for doing so is to advance
his own self-interest by avoiding his support obligation.
Id. at 142, 625 N.Y.S.2d at 129.
16
Thus, the court concluded that
“the
husband
should
be
estopped
from
pursuing
challenge,” and it rejected blood testing.
N.Y.S.2d at 129.
his
paternity
Id. at 143, 625
Similarly, in Shondel J. v. Mark D., 7 N.Y.3d
320, 820 N.Y.S.2d 199 (2006), the Court of Appeals held that “a man
who has mistakenly represented himself as a child’s father may be
estopped from denying paternity, and made to pay child support,
when the child justifiably relied on the man’s representation of
paternity, to the child’s detriment.”
200.
Id. at 324, 820 N.Y.S.2d at
The court reached this conclusion even though a DNA test
showed that the man paying support was not, in fact, the child’s
biological father.
Id. at 325, 820 N.Y.S.2d at 201.
While these cases reflect a strong state policy against
delegitimizing a child, they are inapposite here.
They stand only
for the proposition that a person may be barred from avoiding a
support obligation by seeking to establish that a child’s father is
someone other than himself.
They do not undercut the principle
that under New York intestacy law, the presumption of legitimacy
can, in fact, be rebutted.
And, it is intestacy law that is
incorporated by reference in the Social Security Act and the
implementing regulations, not all aspects of state family law.
Indeed, these two branches of the law often diverge, as they serve
different purposes.
Intestacy law is designed to determine with
finality the identity of the heirs of the decedent at the time of
17
death, thereby facilitating distribution of the estate.
Bosco,
2013 WL 3358016, at *9; In re Martin B., 17 Misc. 3d 198, 201, 841
N.Y.S.2d 207, 209 (N.Y. Surr. Ct. 2007) (finding modification in
New York intestacy law “intended to ensure certainty in identifying
persons interested in an estate and finality in its distribution”).
Family law, by contrast, is intended to advance the best interests
of the child.
Shonel J., 7 N.Y.3d at 329, 820 N.Y.S.2d at 204;
Jose F.R. v. Reina C.A., 46 A.D.3d 564, 564, 846 N.Y.S.2d 630, 631
(3d Dep’t 2007).
Accordingly, the estoppel cases on which the
plaintiffs rely do not support reversal of the ALJ’s determination.
C. Order of Support
But, as noted above, there are multiple avenues under the Act
for achieving “child” status besides state intestacy law.
By one
such route, the applicant is deemed the insured’s child if the
insured “had been ordered by a court to contribute to the support
of the applicant because the applicant was his or her son or
daughter.”
42 U.S.C. § 416(h)(3)(C)(i)(III).
In this case, Ms.
Abreu obtained an order of support from the Family Court on March
10, 1992, requiring Mr. Martinez to make weekly payments on behalf
of Madeline and Jairo, whom the order identified as Mr. Martinez’s
daughter and son, respectively.
(R. at 293-96).
Nevertheless, the Commissioner contends that the Family Court
did not issue this order “because” Madeline and Jairo were Mr.
18
Martinez’s children.
(Def. Memo. at 18).
The defendant points to
the Findings of Fact form completed by the Family Court Hearing
Examiner in which he checked the box indicating that Mr. Martinez
was liable for supporting Ms. Abreu and the children “by virtue of
marriage” rather than “by virtue of an order of filiation.”
(Def.
Memo. at 18; R. at 296).
This argument is unpersuasive for several reasons.
order for Madeline and Jairo to be Mr. Martinez’s
First, in
children for
purposes of support, there was no requirement of an order of
filiation. Rather, they would have been recognized as his children
by the Family Court because they were born to the marriage between
Ms. Abreu and Mr. Martinez.
In other words, the Family Court, not
surprisingly, would have applied the presumption of legitimacy in
circumstances where there was no basis for doing otherwise. At the
time the order of support was issued, Ms. Abreu had not disavowed
Mr. Martinez as the father, and no DNA test was performed until a
decade later.
Accordingly, an order of filiation would have been
wholly unnecessary.
Second, requiring that a support order be based on an order of
filiation would be inconsistent with the structure of the Act.
An
applicant may be deemed a child for purposes of child’s insurance
benefits where:
in the case of a deceased individual -19
(i) such insured individual -(I) had acknowledged in writing that
applicant is his or her son or daughter,
the
(II) had been decreed by a court to be the
mother or father of the applicant, or
(III) had been ordered by a court to
contribute to the support of the applicant
because the applicant was his or her son or
daughter . . . .
42 U.S.C. § 416(h)(3)(C).
Plainly, an applicant may be deemed a
child under subpart III based on the order of support alone.
If,
as the Commissioner argues, that order must in turn be based on an
order of filiation, subpart III would be mere surplusage: an
applicant who has received an order of filiation would necessarily
satisfy subpart II, since the insured would have been “decreed by
a court to be the father or mother of the applicant.”
In order for
subpart III to have independent force, then, it must be interpreted
to include circumstances such as this where there is an order of
support but no filiation order.
Third, the Commissioner’s interpretation gives insufficient
recognition to the purpose of child’s insurance benefits, which is
to provide a substitute source of income for certain minors whom
the wage earner had supported prior to his death.
An order of
support is evidence -- and, under the Act, conclusive evidence -of such a relationship, independent of whether there has been a
20
court determination that the beneficiary is the biological child of
the insured.
Certain provisions of the Act provide for an applicant to be
deemed the child of the insured even in the face of contradictory
facts.
For
acknowledged
example,
paternity
an
in
insured
individual
writing,
but
that
may
have
falsely
attestation
will
nevertheless be sufficient to qualify the applicant for benefits.
42 U.S.C. § 416(h)(3)(C)(i)(I).
Similarly, here, the order of
support that, on its face, was issued because Madeline and Jairo
were believed to be Mr. Martinez’s children, is sufficient to
support the application for child’s insurance benefits. Nothing in
the Act allows the Commissioner to go behind that order on the
basis of subsequently discovered evidence, no matter how persuasive
that evidence might be.
We may accept as fact that neither Madeline nor Jairo is the
biological child of Mr. Martinez. That does not, however, preclude
them from being deemed his children by operation of statute.
And,
having been deemed his children pursuant to 42 U.S.C. § 416(h)(3),
they are likewise deemed to have been dependent upon him.
__ U.S. at __, 132 S. Ct. at 2027 n.3.
Capato,
Madeline and Jairo are
therefore eligible for benefits, and no purpose would be served by
21
remanding to have their eligibility reconsidered.4
D. Relief
The Commissioner contends that remand is necessary to allow
Christopher
Martinez
the
participate in any hearing.
opportunity
to
present
(Def. Memo. at 20).
evidence
or
To be sure, the
level of benefits to which he is entitled is affected by the
eligibility of Madeline and Jairo, since, in general terms, the
maximum family benefit payable on a deceased wage earner’s account
is divided among all the beneficiaries.
C.F.R. §§ 404.304(d), 404.403.
42 U.S.C. § 403(a); 20
However, Christopher could present
no evidence that would affect the eligibility of Madeline and
Jairo, since they are entitled to benefits as a matter of law by
virtue of the order of support.
4
Although they do not develop the argument, the plaintiffs
note that ALJ Heyman “ignored the Appeals Council order” when the
application was first remanded, because the Appeals Council had
found that the claimants “have acquired the status as children of
the wage earner, and they are deemed the surviving children of the
wage earner in accordance with section 216(h)(2)(A) of the Social
Security Act.” (Pl. Memo. at 5; R. at 224).
Regulations
implementing the act require application of administrative “law of
the case.” Specifically, when the Appeals Council remands, the ALJ
“shall take any action that is ordered by the Appeals council and
may take any additional action that is not inconsistent with the
Appeals Council’s remand order.”
20 C.F.R. § 404.977(b); see
Holman v. Colvin, No. 12 Civ. 5817, 2014 WL 941823, at *3 (S.D.N.Y.
March 11, 2015); Scott v. Barnhart, 592 F. Supp. 2d 360, 371
(W.D.N.Y. 2009). Here, the analysis of ALJ Heyman was arguably
inconsistent with the remand order. However, as his determination
must be reversed for the reasons stated here, that issue need not
be decided.
22
The appropriate relief,
then,
is to remand this case to the
Commissioner solely for a calculation of benefits. 5
Conclusion
For the reasons discussed above,
judgment
on
the
pleadings
(Docket
the plaintiffs' motion for
no.
14)
is
granted,
the
defendant's cross-motion (Docket no. 20) is denied, and the case is
remanded to the Commissioner for the calculation of benefits.
The
Clerk of Court shall enter judgment accordingly.
SO ORDERED.
c.~ C'AAJ..u.t
d
o.;1/JA
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
Dated: New York, New York
October 6, 2015
Copies transmitted this date:
Guilene Cherenfant, Esq.
Legal Services NYC-Bronx
349 E. 149th St., 10th Floor
Bronx, NY 10451
Joseph A. Pantoja, Esq.
Assistant United States Attorney
86 Chambers Street
New York, NY 10007
5
In her discretion, the Commissioner may include Christopher
in these proceedings; but, as discussed, there would be no basis
for revisiting the eligibility of Madeline and Jairo.
23
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