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HOWELL v. BARNHART

May 28, 2003

WANDA HOWELL O/B/O, SHALINA HOWELL PLAINTIFF,
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: VICTOR Marrero, District Judge.

DECISION AND ORDER

Wanda Howell ("Howell"), on behalf of her daughter, plaintiff Shalina Howell ("Shalina"), brings this action to challenge the decision of the Commissioner of Social Security (the "Commissioner") that Shalina was not entitled to surviving child's insurance benefits (the "Benefits") under the Social Security Act (the "Act"), 42 U.S.C. § 401 et seq., because she did not demonstrate that she was the surviving child of the deceased wage earner, Karl L. Harris ("Harris"), within the meaning of the Act. The Commissioner filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons discussed below, the Commissioner's motion is GPANTED.

I. BACKGROUND

A. PROCEDURAL HISTORY

Howell filed an application for the Benefits on behalf of Shalina with the Social Security Administration (the "SSA") on February 6, 1998. Her Application was denied, and she requested a hearing (the "Hearing"), which was conducted before Administrative Law Judge Louis v. Zamora (the "ALJ") on May 3, 1999. Howell was not represented by counsel at the hearing. The ALJ issued a decision on November 6, 1999 (the "SSA Decision") finding that Shalina was not entitled to the Benefits because there was insufficient evidence to lead to the conclusion that she was Harris's daughter. Howell sought administrative review from the SSA's Appeals Council, and the SSA Decision became final when the Appeals Council denied her requested review on May 9, 2001

B. FACTUAL RECITATION

According to Howell, she lived across the street from where Harris worked, and as a result the couple met at some point before the spring of 1986. Howell alleges that this relationship resulted in the conception of Shalina, who was born on November 15, 1986 at St. Luke's Roosevelt Hospital in Manhattan. Shalina's birth certificate lists Howell as the mother, but does not list anyone as the father.

Following Shalina's birth, the record is unclear as to the extent of the purported relationship between Harris and Howell. Howell submitted for the record a copy of an August 22, 1991 check (the "Check") for seventy-five dollars made out to Harris — who was an employee of the New York Times — from the New York Times Employees Federal Credit Union. Howell contends that the Check was one in a series of payments Harris made to Howell as child support for Shalina, but admits that all other payments were made in cash. Howell never deposited the Check.

The record contains several documents which demonstrate that Howell and Shalina believed Harris was Shalina's father. One such document consists of a handwritten note to Harris from Shalina and Howell dated June, 1994 that says "Daddy" on it. Two other documents — a Pupil/Parent Survey, dated October 2, 1998, and an application for membership to the Madison Square Boys & Girls Club, dated November 9, 1998 — list Harris as Shalina's father, but were both prepared after Harris's death and consequently are signed only by Howell.

According to documents submitted by Howell, she attempted to institute paternity and support proceedings against Harris by filing a Statement of Alleged Paternity on November 4, 1991 with the Human Resources Administration Office of Child Support Enforcement. Later, on March 14, 1995, Howell filed a petition under Article 5 of the Family Court Act alleging that Harris was Shalina's father. Harris never appeared in court on this matter, and consequently the petition was eventually dismissed without prejudice by the Family Court on February 6, 1997 because the allegations in the petition could not be established.*fn1

The record also contains undated correspondence from the City of New York (the "City") informing Howell that her children were no longer receiving public assistance, but that the City's Support Collection Unit Services Office would continue to attempt to obtain an order of support and establish paternity against Harris on behalf of Shalina. To assist in this action, the City requested that Howell report to a local borough office within thirty days to discuss what further action could be taken. A second letter from the City to Howell, also undated, noted that Howell had not responded within the requested thirty-day period, and consequently informed Howell the child support enforcement case against Harris would be closed.

Although Howell made several attempts as noted above to confirm that Harris was the father of Shalina, Harris consistently made no acknowledgment of such paternity in his tax returns and applications for employment, and never took any action to care for Shalina, such as assisting with her medical appointments or making her a beneficiary of his insurance policy. On October 25, 1994, Harris applied for disability insurance benefits with the SSA, and affirmed — despite the clear warning that a false affirmation under such application was a federal crime — that he had no children who were eligible for social security benefits.

On January 12, 1996, Harris died of cardiac arrest. His death certificate lists Dorothy Harris as his wife and informant on the death certificate. Two years after Harris's death, Howell ...


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