United States District Court, Southern District of New York
April 4, 2003
JAMES E. MORTON & CARMEN M. SOUFFRONT, PLAINTIFFS,
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.
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.
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 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.
[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
[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 ask
that question nevertheless. You're saying that that
question was never posed to you?
[Morton]: That's correct. . . .
When the ALJ asked whether Morton had read the application to see whether the information recorded by the SSA employee was correct, Morton responded, "[t]his is almost an embarrassing question" (R. 34), and explained:
I was asked these questions over the phone. I have no
reason to doubt that the person I'm talking to is
writing the stuff. . . [T]he information that I saw
looked accurate to me and I signed it. I did not go
through each question, as I probably should have. I
realize now that I should have but at the time I did
(R. 34-35.) Morton also confirmed the ALJ's assumption that he "never asked questions of the individual on the telephone or anyone else regarding possible benefits that [his] dependent child might be entitled to." (R. 38.) However, Morton reasserted his claim that he had never been informed of his son's eligibility: "the pamphlets that I received prior to retirement . . . I don't remember reading anything that covered that. And I'm not saying it wasn't there, but I don't remember reading anything because I would have been anxious to know that." (R. 41-42.)
The ALJ pointed out to Morton that because this is an application for retirement benefits (as opposed to disability benefits), it is designed for those over age 62, "and yet it still specifically asks about dependent children. So, apparently, the government when they drew this form up took into consideration that individuals in their sixties could still have dependent children." (R. 42.) The ALJ admitted, however, "that doesn't mean that the individual [SSA employee] asked you the questions they were supposed to." (Id.)
Souffront's Testimony Before the ALJ
In response to the ALJ's inquiry into the "eleven-year gap" between Morton's initial retirement application and Souffront's application on behalf of James, Souffront testified that in an earlier incident with the SSA regarding disability insurance benefits for the children of recipients, she had been informed that "the only way [her daughter] would qualify was if her father was deceased." (R. 44-47.) Based on this "personal experience" (R. 45), Souffront further testified:
I don't know anything what the regulations are. Right?
I don't have reason to apply before. So . . . he
applies for retirement, the last thing on my mind is
that my son is entitled to benefits from his father's
Social Security check. His father's alive. Didn't even
give it a second thought.
Souffront explained that she learned of her son's possible eligibility through a conversation with a friend in a similar situation who was receiving benefits. (R. 47-48.) As a result of that conversation, Souffront contacted the SSA, was informed that her son was eligible, and filed the application for benefits at issue in this action. (R. 48-49.)
Plaintiffs' Counsel's Argument to the ALJ
Before the ALJ, plaintiffs' counsel argued that the SSA employee's failure to question Morton about any minor children amounted to misinformation from the SSA. (R. 50.) Plaintiffs' counsel further alleged that incorrectly recording the information regarding Morton's children was equivalent to misinformation. (Id.) Accordingly, plaintiffs' counsel claimed that under 20 C.F.R. § 404.633 (quoted at page 11 below), because of the SSA's errors, James was entitled to retroactive benefits from the date of Morton's December 1987 application for retirement benefits. (R. 50.)
The ALJ's Decision
The ALJ rejected plaintiffs' arguments and held that the provisions in 20 C.F.R. § 404.633 did not apply. (R. 10.) The ALJ found that Morton, "an intelligent and well educated individual," made additions to his application form that indicated that he had read the application. (Id.) The ALJ also stated that "[e]ven if [Morton] merely glanced over the portion of the application regarding children, it was his responsibility to ensure that the application was completed correctly." (Id.)
Citing Social Security Ruling 68-68c, addressing a virtually identical case, the ALJ found that "even if the wage earner's theory was correct and the [SSA's] employee took it upon his or herself to answer the inquiry concerning children in the negative, " that would not provide a basis for establishing an earlier "deemed filing date." (R. 10). Moreover, plaintiffs' statements that they had no knowledge that their son was entitled to benefits would not provide a basis for an earlier filing date. (R. 11.)
As noted above, the ALJ's decision that (1) James was not entitled to a deemed filing date earlier than November 1998 (R. 11), and (2) accordingly, that James was only entitled to retroactive child's insurance benefits starting in May 1998 (id.), became the final decision of the Commissioner on May 29, 2002, when the Appeals Council denied plaintiffs' request for review of the ALJ's decision (R. 2-3.)
I. THE APPLICABLE LAW
A. The Filing of An Application is a Prerequisite to
Entitlement of Child's Insurance Benefits
Under § 202(d) of the Social Security Act, the child of an individual entitled to retirement insurance benefits may receive child's insurance benefits. 42 U.S.C. § 402(d)(1); see also 20 C.F.R. § 404.350.*fn5
However, an individual who qualifies for benefits does not receive them automatically. The Act makes entitlement contingent upon the filing of an application, 42 U.S.C. § 402(d)(1)(a); see also 20 C.F.R. § 404.350(a)(3); 20 C.F.R. § 404.603,*fn6
in the form and in a manner set forth by the SSA, see 20 C.F.R. § 404.601-404.633; see also Social Security Ruling 68-68c, 1968 WL 3969 (S.S.A. 1968); Social Security Ruling 79-2c, 1979 WL 15566 (S.S.A. 1979).
"The filing of an application is a prerequisite to the entitlement to benefits, and benefits cannot be paid for periods earlier than the retroactive limit provided for in the Act." Driver v. Heckler, 779 F.2d 509, 511 (9th Cir. 1985) (citations omitted); see also, e.g., Pineda v. Barnhart, No. 02-16001, 2003 WL 1193506 at *1 (9th Cir. Mar. 14, 2003) (rejecting claim that children were entitled to retroactive benefits because the children had not filed an application for benefits); White v. Sullivan, 965 F.2d 133, 136 (7th Cir. 1992) ("The filing of an application is a prerequisite to entitlement to benefits"); Hernandez v. Secretary of Health & Human Servs., No. 88-5839, 914 F.2d 262 (table), 1990 WL 127621 at *2 (9th Cir. Sept. 6, 1990) ("It is well-settled that an SSA award of children's benefits is conditioned upon the proper filing of an application"); Smithback v. Sullivan, 899 F.2d 698, 699 (7th Cir. 1990); Duthu v. Sullivan, 886 F.2d 97, 99 (5th Cir. 1989) ("the filing of a formal application for child's insurance benefits is a prerequisite to the receipt of such benefits"), cert. denied, 496 U.S. 936, 110 S.Ct. 3213 (1990); Eagle v. Sullivan, 877 F.2d 908, 909, 910 (11th Cir. 1989) ("the law requires a person seeking old-age benefits to file a written application"); Wolchuck v. Bowen, 871 F.2d 869, 871 (9th Cir. 1989) ("It is well-settled that the filing of an application is a prerequisite to entitlement to benefits"); Bender v. Celebrezze, 332 F.2d 113, 115 (7th Cir. 1964) (SSA § 402(a) "makes the filing of an application a substantive condition precedent to entitlement to benefits."); Shepherd v. Chater, 932 F. Supp. 1314, 1316 (D.Utah 1996) ("The first requirement for entitlement to [child's] benefits is the filing of an application. . . . The requirement to file a written application is not waivable. . . ."); Vargo v. Secretary of Health & Human Servs., 913 F. Supp. 157, 159 (W.D.N.Y. 1995); Johnson v. Shalala, No. 93 C 2739, 1994 WL 86684 at *2 (N.D.Ill. Mar. 14, 1994) ("Both the United States Supreme Court and the Seventh Circuit have strictly enforced this filing requirement as a precondition to the receipt of [children's insurance] benefits."); Sisco v. Shalala, 860 F. Supp. 185, 187-89 (D.N.J. 1994); Mitchell v. Harris 496 F. Supp. 230, 232 (D.N.J. 1980); Watson v. Califano, 487 F. Supp. 179, 184 (S.D.N.Y. 1979) ("An individual who qualifies for benefits is not entitled to such automatically; application for benefits is a prerequisite to entitlement."), aff'd, 622 F.2d 577 (2d Cir. 1980); Kurz v. Celebrezze, 225 F. Supp. 528, 530 (E.D.N.Y. 1963); Borysuk v. Ewing, 96 F. Supp. 779, 781 (D.N.J. 1951).
In Schweiker v. Hansen, the Supreme Court sustained the regulatory requirement of a written application when it upheld the SSA's denial of retroactive benefit where an SSA field representative erroneously told the applicant that she was not eligible for benefits, and the applicant therefore failed to file a written application:
Congress expressly provided in the Act that only one
who "has filed application" for benefits may receive
them, and it delegated to petitioner the task of
providing by regulation the requisite manner of
application. A court is no more authorized to overlook
the valid regulation requiring that applications be in
writing than it is to overlook any other valid
requirement for the receipt of benefits.
Schweiker v. Hansen, 450 U.S. 785
, 790, 101 S.Ct. 1468, 1472 (1981).
An application is considered filed on the day it is received by an SSA employee. 20 C.F.R. § 404.614(a).*fn7 If an individual files an application for child's benefits after the month in which the individual first meets all of the requirements (apart from the filing requirement), that individual may receive "retroactive" benefits for a maximum of six months prior to the date of the application. 20 C.F.R. § 404.621(a)(1)(ii);*fn8 see also Sisco v. Shalala, 860 F. Supp. at 189 (holding the provisions to be "clear and unambiguous," the Court stated "one exception, and one only, is included in the Act that would enable the Court to bypass the six-month retroactive rule"); Borysuk v. Ewing, 96 F. Supp. at 781 (the clear intent of Congress was to limit retroactive payment to the statutory grace period).
B. The Standard for Failure to File as a Result of Misinformation
Despite the stringent requirement that an application be filed in accordance with SSA regulations, "the effective date of a written application may be established before its actual filing by a `protective filing,'" such as "listing the child's name on the parent's disability application." Shepherd v. Chater, 932 F. Supp. 1314, 1317 (D.Utah 1996); see also, e.g., Grubart v. Chater, No. 96-6083, 104 F.3d 353 (table), 1996 WL 685767 at *1 (2d Cir. Nov. 29, 1996); Thorp v. Apfel, No. 97-CV-809, 1998 WL 683767 at *2-3 (W.D.N.Y. Sept. 17, 1998).
The Act also provides that an application may be given an earlier "deemed" filing date as the result of "misinformation" by an SSA employee:
In any case in which it is determined to the
satisfaction of the [Commissioner of Social Security]
that an individual failed as of any date to apply for
monthly insurance benefits under [the Act] by reason
of misinformation provided to such individual by any
officer or employee of the Social Security
Administration relating to such individual's
eligibility for benefits under [the Act], such
individual shall be deemed to have applied for such
benefits on . . . the date on which such
misinformation was provided to such individual.
42 U.S.C. § 402(j)(5); see also 20 C.F.R. § 404.633. In order to avail oneself of an earlier deemed filing date due to misinformation from the SSA, the following requirements must be satisfied:
(1) The misinformation must have been provided to you
by one of [SSA's] employees while he or she was acting
in his or her official capacity as our
employee. . . .
(2) Misinformation is information which we consider to
be incorrect, misleading, or incomplete in view of the
facts which you gave to the employee, or of which the
employee was aware or should have been aware,
regarding your particular circumstances. . . . In
addition, for us to find that the information you
received was incomplete, the employee must have failed
to provide you with the appropriate, additional
information which he or she would be required to
provide in carrying out his or her official duties.
(3) The misinformation may have been provided to you
orally or in writing.
(4) The misinformation must have been provided to you
in response to a specific request by you to us for
information about your eligibility for benefits or the
eligibility for benefits of the person referred to in
paragraph (b)(2)(i) of this section for which you were
considering filing an application.
20 C.F.R. § 404.633(c). Certain types of information cannot constitute misinformation, including "[g]eneral informational pamphlets that [SSA] issue[s] to provide basic [SSA] program information"; general information reviewed or prepared by the SSA but "disseminated by the media"; and "[i]nformation provided by other governmental agencies." 20 C.F.R. § 404.633(e).
C. Standard of Judicial Review*fn9
A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record to support such determination. E.g., Vapne v. Apfel, No. 01-6247, 36 Fed. Appx. 670, 672, 2002 WL 1275339 at *2 (2d Cir. June 10, 2002), cert. denied, 123 S.Ct. 394 (2002); Horowitz v. Barnhart, No. 01-6092, 29 Fed. Appx. 749, 752, 2002 WL 337951 at *2 (2d Cir. Mar. 4, 2002); Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983); Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983); 42 U.S.C. § 405(g). "`Thus, the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision.'" Morris v. Barnhart, 2002 WL 1733804 at *4.*fn10
This substantial evidence rule is fully applicable to determination as to when an application was filed or should be deemed filed because of misinformation. See, e.g., Grubart v. Chater, No. 96-6083, 104 F.3d 353 (table), 1996 WL 685767 at *1 (2d Cir. Nov. 29, 1996); Thorp v. Apfel, No. 97-CV-809, 1998 WL 683767 at *2 (W.D.N.Y. Sept. 17, 1998); Vargo v. Secretary of Health & Human Servs., 913 F. Supp. 157, 159 (W.D.N.Y. 1995).
The Supreme Court has defined "substantial evidence" as "`more than a mere scintilla [and] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971); accord, e.g., Shaw v. Chater, 221 F.3d at 131; Curry v. Apfel, 209 F.3d at 122; Brown v. Apfel, 174 F.3d at 61; Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 773-74; Perez v. Chater, 77 F.3d at 46. "[F]actual issues need not have been resolved by the [Commissioner] in accordance with what we conceive to be the preponderance of the evidence." Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S.Ct. 1207 (1983). The Court must be careful not to "`substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.'" Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991); see also, e.g., Toles v. Chater, No. 96-6065, 104 F.3d 351 (table), 1996 WL 545591 at *1 (2d Cir. Sept. 26, 1996). However, the Court will not defer to the Commissioner's determination if it is "`the product of legal error.'" E.g., Duvergel v. Apfel, 2000 WL 328593 at *7; see also, e.g., Tejada v. Apfel, 167 F.3d at 773 (citing cases).
II. THE COMMISSIONER'S MOTION SHOULD BE GRANTED BECAUSE THERE
IS SUBSTANTIAL EVIDENCE TO SUPPORT THE COMMISSIONER'S DECISION
REGARDING JAMES' ENTITLEMENT TO BENEFITS
It is undisputed that the only application for benefits for James was filed by Souffront in November 1998, thereby entitling James to retroactive benefits to May 1998. Plaintiffs; application can be given a deemed filing date from Morton's December 1987 application for his retirement benefits only if: (a) the rules on SSA misinformation are satisfied, or (b) the Court considers "equitable" principles, as plaintiffs request. (See Dkt. No. 10: Myatt Aff. in Opp. to Def's Motion at 1-3.) We turn to each of those issues.
A. There is Substantial Evidence to Support the Commissioner's
Finding That the Misinformation Exception Does Not Apply
The ALJ's finding that plaintiffs did not satisfy the requirements of 20 C.F.R. § 404.633(c) is supported by substantial evidence.
Plaintiffs do not allege that the SSA employee in 1987 gave Morton "incorrect, misleading or incomplete [information] in view of the facts which [Morton] gave to the employee. . . ." 20 C.F.R. § 404.633(c)(2).*fn11 (See Dkt. No. 10: Myatt Aff. at 2.) Even if the SSA employee did not ask the question about children, it is undisputed that Morton did not ask for information about James' eligibility for child's benefits (see pages 4-5 above), and thus did not satisfy the requirement of 20 C.F.R. § 404.633(c)(4). "The burden of proof is on the claimant to demonstrate that she received misinformation from an agency employee that caused her to fail as of a particular date to apply for monthly insurance benefits." Thorp v. Apfel, No. 97-CV-809, 1998 WL 683767 at *3 (W. D.N.Y. Sept. 17, 1998).
Indeed, the ALJ cited to and relied upon Social Security Ruling 68-68c, 1968 WL 3969 (S.S.A. 1968), which involved virtually identical facts. SSR 68-68c reflects the Commissioner's adoption of the District Court's decision in Fangman v. Gardner, Civ. No. 02798, 1968 WL 2138 (D.Neb. Mar. 13, 1968). In that case, Fangman applied for retirement benefits in December 1961. His application indicated no children when in fact he had an eligible child. Id., 1968 WL 2138 at *1. As here, in Fangman the "[p]laintiff explain[ed] the error on the 1961 application as the failure of the employee of the Social Security Office to ask him about any minor children and the [SSA] employee's assumption that plaintiff was too old to have young children." Id. Fangman did not file an application on behalf of his son until 1966. Id., 1968 WL 2138 at *2.
The court held:
1. Where expressly provided, a person's eligibility
for benefits under the Act is conditioned upon the
filing of an application.
In our opinion the statutory language makes this
condition clear. . . .
2. An application was not filed on behalf of [the
child] until February 1966. Even assuming that the
plaintiff's theory is correct and that the [SSA]
employee did take it upon his or herself to answer the
inquiry concerning children in the negative, the
plaintiff's undisclosed information cannot be held to
rise to the dignity of an application. Whatever may be
the true circumstances, the Court regards the error as
extremely regretful, but it cannot supply a basis of
the plaintiff's recovery here. . . . Estoppel may not
be asserted against an agency of the United States
under these circumstances.
Fangman v. Gardner, 1968 WL 2138 at *2, adopted by SSR 68-68c, 1968 WL 3969 at *2 (emphasis added).*fn12
The decision in Fangman and SSR 68-68c is a specialized application of the well-established principle of contract law that a party is bound by a contract or similar document he signs and cannot escape the terms of that document with the excuse that he did not read it before signing. See, e.g., Brown v. Cushman & Wakefield, Inc., 01 Civ. 6637, 2002 WL 1751269 at *17 (S.D.N.Y. July 29, 2002) (Peck, M.J.) ("`a signer of an agreement is deemed to be conclusively bound by its terms whether or not he or she read it'") (quoting Maines Paper & Food Serv. v. Adel, 256 A.D.2d 760, 761-62, 681 N.Y.S.2d 390, 391 (3d Dep't 1998)), report & rec. adopted, 235 F. Supp.2d 291 (S.D.N.Y. 2002).
Plaintiffs concede that the law is against them, but ask the Court to correct the "error" that occurred. (See Dkt. No. 10: Myatt Aff. at 1 ("Mr. Morton would like the court to allow these proceedings to go forward based on public policy. Unfortunately, there is no precedent that Mr. Morton can site [sic] to that would square on all fours with his position."), 2 ("The point of being before the judiciary is to correct a mistake. We have a bright man who did not see that question.
Everyone is acknowledging that an error occurred. . . .").) The Court therefore turns to equitable considerations.
B. "Equitable Considerations" Do Not Entitle Plaintiffs to Relief
Plaintiffs' appeal to equitable considerations is unavailing. As Fangman v. Gardner and SSR 68-68c explicitly held on similar facts, "[e]quitable considerations and the court's regret for the misfortune of the applicant cannot govern over the express provisions of the Act." Fangman v. Gardner, Civ. No. 02798, 1968 WL 2138 at *3 (D.Neb. Mar. 13, 1968), adopted in SSR 68-68c, 1968 WL 3969 at *3 (S.S.A. 1968).
Whether considered under principles of estoppel or equitable principles, the Courts have consistently declined to provide additional exceptions to the SSA's regulatory scheme (including exceptions based on a claimant's ignorance of law). See, e.g., Schweiker v. Hansen, 450 U.S. 785, 790, 101 S.Ct. 1468, 1472 (1981) ("A court is no more authorized to overlook the valid regulation requiring that applications be in writing than it is to overlook any other valid requirement for the receipt of benefits. "); Hernandez v. Secretary of Health & Human Servs., No. 88-5839, 914 F.2d 262 (table), 1990 WL 127621 at *2 (9th Cir. Sept. 6, 1990) ("Because the record contains no indication that the omission of the two children from Mr. Hernandez's 1978 application form amounted to affirmative [government] misconduct, estoppel is inappropriate."); Scime v. Bowen, 822 F.2d 7, 8 (2d Cir. 1987) (SSA cannot be estopped from applying written application requirement for retroactive child's benefits because of erroneous information from SSA); Yeiter v. Secretary of Health & Human Servs., 818 F.2d 8, 9-10 (6th Cir.) (rejecting request for exception to written application requirement for mentally incompetent claimant), cert. denied, 484 U.S. 854, 108 S.Ct. 160 (1987); Benson v. Department of Health & Human Servs., 948 F. Supp. 213, 216 (E.D.N.Y. 1996) ("Estoppel against the government . . . is granted only in limited and extraordinary circumstances. When a party seeks to estop the government, the party must show in addition to the traditional elements of estoppel that the government engaged in affirmative misconduct. Misinformation or misrepresentation does not amount to affirmative misconduct.") (citations omitted); Shepherd v. Chater, 932 F. Supp. 1314, 1318-19 (D.Utah 1996) ("Courts have uniformly refused to find equitable exceptions to the statutory limit on retroactive [SSA] benefits. . . . Like many claimants, the [plaintiffs] may not have been fully aware of these statutory provisions and administrative policies. But ignorance of the [retroactivity provisions] does not prevent its application. Nor does `ignorance of applicable eligibility and procedural requirements' render their application a due process violation.") (citations omitted); Mitchell v. Harris, 496 F. Supp. 230, 232-33 (D.N.J. 1980) ("Plaintiff's ignorance as to eligibility" is no ground to ignore written application requirement, and "equitable considerations are irrelevant in this context." "Plaintiff's eight year delay in applying for . . . benefits, resulting as it apparently did from her ignorance of the availability of such benefits, is certainly unfortunate. The statutory requirements are, however, unambiguous and cannot be construed away by this court."); Sweeney v. Secretary of Health, Educ. & Welfare, 379 F. Supp. 1098 (E.D.N. Y. 1974) (upholding ALJ's application of the statutory retroactivity limit without regard to equitable considerations as correct); Kurz v. Celebrezze, 225 F. Supp. 528, 530 (E.D.N.Y. 1963) ("If [plaintiff's] plea were governed by equitable principles she might have a plausible claim for relief. The fact is that her right to benefits is accorded her solely by statute and is conditioned upon compliance therewith. . . . Failure to comply with the applicable statute and regulations precludes recovery against the Government no matter with what good reason the claimant believed she had come within the requirements.") (internal quotations omitted); Flamm v. Ribicoff, 203 F. Supp. 507, 510 (S.D.N.Y. 1961) (same).
In short, neither ignorance nor equitable principles allow the Court to ignore the requirements of the Act and its regulations.
For the reasons set forth above, the Commissioner's determination that James Morton, Jr. is not eligible to retroactive child's benefits before May 1998 is supported by substantial evidence, and the Commissioner's motion for judgment on the pleadings should be granted.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of Judge William H. Pauley, III, 500 Pearl Street, Room 2210, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Pauley. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ. P. 72, 6(a), 6(e).