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MILANO v. SECRETARY OF HHS

May 18, 1984

VERA MILANO, Plaintiff, against SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge

 This is an action brought under section 205(g) of the Social Security Act, as amended (the "Act"), 42 U.S.C. § 405(g), to review a final determination of the Secretary of Health and Human Services (the "Secretary"). The Secretary found that plaintiff was not the lawful widow of the deceased wage earner, Sebastian Milano, and therefore was not entitled to widow's disability insurance benefits.

 Plaintiff filed an application for widow's disability insurance benefits on July 2, 1980 (Transcript of Administrative Proceedings ("Tr.") 120-25), alleging that she was the widow of Sebastian Milano. The application was denied initially, and on reconsideration (Tr. 164-66). Plaintiff requested a hearing which was held on June 3, 1981 (Tr. 25-40), and September 17, 1981 (Tr. 41-111). The Administrative Law Judge ("ALJ") before whom plaintiff appeared considered the case de novo, and on February 28, 1982 found that plaintiff was not entitled to benefits because she was not the lawful widow of Sebastian Milano (Tr. 14-20). The decision of the ALJ became the final decision of the Secretary when the Appeals Council approved it on June 22, 1982 (Tr. 3-4).

 Facts

 Plaintiff, Vera Milano, married Sebastian Milano in Queens, New York on July 20, 1973 (Tr. 197). In applying for the marriage certificate, Sebastian stated that he had never before been married and that his birth date was August 20, 1917 (Tr. 196). When he applied for retirement benefits on September 3, 1975, however, Sebastian gave his date of birth as October 5, 1907 and listed a previous marriage to Filomena Milano which had allegedly ended in divorce in 1945 in Brooklyn, New York (Tr. 136-39).

 Sebastian and Filomena were married in Brooklyn on September 4, 1926 (Tr. 158). Sebastian apparently left Filomena in 1939 because of marital difficulties (Tr. 128). When Filomena applied for her own retirement benefits on July 8, 1971, she stated that she was still married to Sebastian (Tr. 112-15).

 Sebastian died domiciled in New York on January 7, 1980 (Tr. 126). Filomena applied for widow's insurance benefits on June 27, 1980 and stated that her marriage to Sebastian had continued until his death (Tr. 127). Five days later, Vera, in turn, applied for widow's disability insurance benefits (Tr. 120-25). In that application Vera stated that she had married Sebastian in 1973 and that he had been previously married to a Josephine (presumably a mistaken reference to Filomena) Milano, from whom she alleged he was divorced in New York in 1940 (Tr. 121).

 Discussion

 The Act provivdes for payment of widow's insurance benefits to the widow and surviving divorced wife of an individual who dies fully insured by the Social Security system. 42 U.S.C. § 402(e). Section 416(h)(1)(A) provides that the determination whether an applicant is the widow of a deceased wage earner is to be made in accordance with the law of the state in which the wage earner was domiciled at death. *fn1"

 If the applicant went through a marriage ceremony in good faith she may be "deemed" a widow and therefore entitled to benefits. *fn2" However, to effectuate "the congressional policy against double dipping," Martin v. Harris, 653 F.2d 428, 435 (10th Cir. 1981), cert. denied, 454 U.S. 1165, 102 S. Ct. 1039, 71 L. Ed. 2d 321 (1982), the section also provides that a "deemed" widow will not receive benefits if another person is entitled to them as the legal widow. *fn3" The ALJ found that Filomena is the legal widow of Sebastian and, accordingly, she alone is entitled to benefits. The question, therefore, is whether there is substantial evidence to support the ALJ's decision that Filomena, the first wife, is the legal widow of Sebastian Milano.

 Under 42 U.S.C. § 416(h)(1)(A), New York law governs this determination because Sebastian was domiciled in New York when he died. New York Domestic Relations Law § 6 provides:

 A marriage is absolutely void if contracted by a perosn whose husband or wife by a former marrige is living, unless either:

 1. Such former marriage has been annulled or has been dissolved for a cause other than the adultery of such person; provided, that if such former marriage has been dissolved for the cause of adultery of such person, he or she may marry again in the cases provided for in section ...


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