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MORTON v. BARNHART

April 4, 2003

JAMES E. MORTON & CARMEN M. SOUFFRONT, PLAINTIFFS,
v.
JO ANNE BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge

REPORT AND RECOMMENDATION

To the Honorable William H. Pauley, III, United States District Judge

Plaintiffs James E. Morton and Carmen M. Souffront bring this action, pursuant to § 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") to deny plaintiffs' son, James Morton, Jr., child's insurance benefits for the period prior to May 1998. (Dkt. No. 1: Compl.) The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. Nos. 6-9.)

For the reasons set forth below, the Commissioner's motion should be GRANTED.

PROCEDURAL BACKGROUND

On November 19, 1998, plaintiff Carmen M. Souffront submitted an application for child's insurance benefits for her son, James Morton, Jr. ("James"). (Dkt. No. 6: Administrative Record filed by the Commissioner ["R."] at 58-61.) The application sought benefits based on the work record of plaintiff James E. Morton ("Morton"), a retiree receiving Social Security benefits. (See R. 60.) The Social Security Administration ("SSA") awarded benefits to James for the period beginning May 1998, i.e., six months prior to Souffront's November 19, 1998 application. (See R. 69.) Plaintiffs sought reconsideration, seeking retroactive benefits from the date of Morton's application for retirement benefits filed on December 18, 1987. (R. 62-66.)*fn1 Upon reconsideration, the SSA upheld the initial determination. (R. 67-70.)

At plaintiffs' request (R. 71, 72), a hearing was held before an Administrative Law Judge ("ALJ"). On August 1, 2000, the ALJ issued a decision finding that James was not entitled to child's insurance benefits prior to May 1998. (R. 6-12.) This decision became the final decision of the Commissioner on March 29, 2002 when the Appeals Council denied plaintiffs' request for review. (R. 2-3.) This action followed.

FACTS

The Hearing Before the ALJ

On June 19, 2000, a hearing was held before ALJ Mark J. Hecht, at which plaintiffs Morton and Souffront were represented by counsel. (R. 20, 22.)

Morton's Testimony

Morton was born on March 1, 1923. (R. 30; see also R. 54.) Morton applied for retirement insurance benefits on December 14, 1987 in order to qualify for Medicare, but continued to work until he retired in September 1990. (R. 32-33; see also R. 54-57.) Morton had a master's degree from Pratt Institute and had worked for the New York State Supreme Court, progressing "through the ranks" from a court officer to position as Court Clerk 1, 2, and 3 to his final position as Court Clerk Specialist. (R. 30-32.)

At the time of his application in December 1987, Morton had been separated from his wife, Elisabeth Jones, for ten years (R. 35-36), and had a thirteen-month-old son, James Morton Jr., with Souffront (R.40). Morton's name appears on James' birth certificate (R. 37); Morton has acknowledged paternity since James' birth on November 11, 1986 (R. 37-38, 60); and Morton has consistently paid child support to Souffront since at least March 1990 (R. 84-171).

Morton filed his initial retirement benefits application on December 14, 1987, through a telephone interview, in which a Social Security District Office employee completed a special "telecommunication" application form based on Morton's answers to each question.*fn2 (R. 32-33; see also R. 54-57.) The resulting application stated that Morton had no natural, adopted, or step-children under the age of eighteen. (See R. 55.) The application was given to Morton to sign. (R. 33-35.)*fn3

Before signing the application, Morton wrote in the answer to two questions that the phone interviewer had not completed, both of which appeared on the first page (R. 50-51).*fn4 Morton signed the application and returned it to the SSA on December 18, 1987. (R. 33-34; see also R. 57.)

Morton testified that he was never asked by the SSA employee on the telephone whether he had any children. (R. 37.) Morton alleged that because he was sixty-four years old and his wife was sixty-five years old, the SSA employee completed that portion of the application without asking whether Morton had any children under the age of eighteen:

[Morton]: I don't believe that the worker just inadvertently didn't ask me that question. I believe the information before that worker prompted him or her not to ask the question. For instance, my wife's name is there, her birth date is there, 1922 I believe.
[ALJ]: Yes.
[Morton]: And I think it would have been a normal conclusion that there were no minor children involved. I don't think he just didn't ask the question.
[ALJ]: I saw your statement regarding that and that may very well have been what was in the mind of the clerk. It's difficult for us to ascertain at this time, but. . . . That seems to be a logical conclusion [based on his wife's 1922 birth date].
[ALJ]: That may have been why the clerk did not ask the question. But of course they are instructed to ...

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