The opinion of the court was delivered by: NICKERSON
NICKERSON, District Judge:
Plaintiff Beatrice Fontana, by her attorney, brought this action pursuant to 42 U.S.C. § 405(g) to review a final decision of the defendant Commissioner of Social Security that she is not entitled to wife's insurance benefits as a divorced spouse under the Social Security Act.
On June 7, 1993 plaintiff filed an application for wife's insurance benefits as a divorced spouse based on the earnings records of John Fontana. The Commissioner denied this application initially and on reconsideration.
Plaintiff then requested a hearing, which was held on April 11, 1995. In a decision dated February 22, 1996, the Administrative Law Judge determined that plaintiff was entitled to wife's insurance benefits as a divorced spouse based on her marriage to John Fontana. The Appeals Council notified plaintiff on April 12, 1996 that it intended to conduct a review of this decision on its own motion. On June 7, 1996 the Appeals Council vacated the judgment of the Administrative Law Judge, holding that plaintiff was not entitled to wife's insurance benefits as the divorced or deemed wife of John Fontana. This action followed.
The Administrative Law Judge made the following formal findings.
Plaintiff and John Fontana were wed on February 22, 1961 in Stamford, Connecticut, a second marriage for both. John had obtained a Mexican judgment of divorce from his first marriage to Dora Fontana on December 30, 1960. Plaintiff believed this divorce to be valid. John Fontana and the plaintiff lived together as husband and wife for 27 years.
In 1988 plaintiff left John Fontana, and filed for divorce on August 11, 1988. At the divorce hearing, Dora Fontana appeared and testified on behalf of John Fontana that she was never served with a copy of the Mexican divorce papers from 1960. The New York State Supreme Court, Nassau County, annulled the marriage between plaintiff and John on October 4, 1991. Dora was granted a divorce in June 1990. On June 7, 1993 plaintiff filed the application for wife's insurance benefits.
This case presents an issue of law not yet addressed by courts in this circuit. Plaintiff argues that she is eligible for wife's insurance benefits under the Social Security Act as a divorced "deemed" wife.
Plaintiff's eligibility for wife's benefits is governed by 42 U.S.C.A. § 402, which provides that a "wife" or "divorced wife" of an individual entitled to disability insurance benefits shall also be entitled to those benefits if she:
(A) has filed application for wife's ...