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GRUBART v. SHALALA

September 11, 1995

ADELE S. GRUBART, Plaintiff, against DONNA SHALALA, Secretary of Health and Human Services, Defendant.


The opinion of the court was delivered by: GRUBIN

REPORT AND RECOMMENDATION TO THE HONORABLE PETER K. LEISURE

 SHARON E. GRUBIN, United States Magistrate Judge:

 This is an action brought under the Social Security Act, 42 U.S.C. §§ 405(g) ("the Act"), to review a final decision of the Secretary of Health and Human Services that plaintiff was entitled under the Act to an award of wife's benefits for the period beginning in November 1990 (the month she applied) but not to such benefits beginning in August 1990 (the first month she was eligible for such benefits, see 20 C.F.R. § 404.330(c)). The Secretary has moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). Because there is substantial evidence to support the decision, the Secretary's motion should be granted.

 I.

 To qualify for benefits as the spouse of an insured person who is entitled to old-age benefits, the spouse must establish, inter alia, that he or she: (1) filed an application for spouse's benefits; (2) is at least 62 years old; and (3) is not entitled to old-age or disability benefits based upon a primary insurance amount that is equal to or larger than the spouse's benefit amount. 42 U.S.C. § 401(b)(1); 20 C.F.R. § 404.330. The claimant must sign and file an application on a form prescribed by the Social Security Administration ("SSA"). 20 C.F.R. §§ 404.603, 404.610. If a written statement, such as a letter, is filed with the SSA rather than the application form, its date will be used as the filing date of application if: (1) the statement indicates an intent to claim benefits; (2) it is signed by the claimant; and (3) the claimant files the SSA application form within six months after the SSA's notice advising of the need to file one. 20 C.F.R. § 404.630.

 An individual is not entitled to a monthly benefit for any month prior to the month in which he or she files an application for benefits if the amount of the monthly benefit would be subject to reduction because the individual had not yet reached age 65. 42 U.S.C. § 402(j)(4)(A); see 20 C.F.R. § 404.312(c). Spouse's benefits are subject to reduction by 25/36 of 1 percent for each month preceding the month in which the claimant reaches 65 for which the claimant applies for benefits. 42 U.S.C. § 402(q)(1); 20 C.F.R. § 404.410(b).

 The Act further provides as follows:

 
In any case in which it is determined to the satisfaction of the Secretary that an individual failed as of any date to apply for monthly insurance benefits...by reason of misinformation provided to such individual by any officer or employee of the [SSA] relating to such individual's eligibility for benefits..., such individual shall be deemed to have applied for such benefits on the later of --
 
(A) the date on which such misinformation was provided to such individual, or
 
(B) the date on which such individual met all requirements for entitlement to such benefits (other than application therefor).

 42 U.S.C. § 402(j)(5).

 In reviewing a denial of Social Security benefits, the court is not empowered to make a de novo determination of the plaintiff's entitlement. Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991); Wagner v. Secretary, 906 F.2d 856, 860 (2d Cir. 1990); Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990). Rather, it is the function of the Secretary, and not the reviewing court, to pass on the credibility of witnesses, including the claimant, and to resolve material conflicts in the testimony. Richardson v. Perales, 402 U.S. 389, 399, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971); Aponte v. Secretary, 728 F.2d 588, 591 (2d Cir. 1984). See also Long v. Shalala, 21 F.3d 206, 209 (8th Cir.), cert. denied, 130 L. Ed. 2d 22, 115 S. Ct. 65 (1994) (ALJ's determination of claimant's credibility as to his claim that he received misinformation from the SSA is entitled to "great deference"); accord: Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). The court's function is limited to assessing whether the Secretary applied the proper legal standards in making a determination and whether that determination is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Long v. Shalala, 21 F.3d at 209; Cruz v. Sullivan, 912 F.2d at 11; Rashad v. Sullivan, 903 F.2d at 1231; Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989).

 In that regard, the Supreme Court has defined "substantial evidence" as "'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)). See also Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990). The Secretary's finding will be sustained if supported by substantial evidence even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the Secretary's. Alston v. Sullivan, 904 F.2d at 126; Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 75 L. Ed. 2d 447, 103 S. Ct. 1207 (1983); Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982). See also Long v. ...


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