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United States District Court, S.D. New York

January 12, 2004.

BLANCA ESTHER COLON, Plaintiff, -against- JO ANNE B. BARNHART,[fn1] Commissioner of Social Security, Defendant

The opinion of the court was delivered by: RICHARD CASEY, District Judge

*fn1 Jo Anne B. Barnhart became the Commissioner of Social Security on January 3, 2001. She is therefore substituted for Kenneth S. Apfel as Defendant. See Fed.R.Civ.P. 25(d)(1).


Blanca Esther Colon ("Plaintiff), pursuant to 42 U.S.C. § 405(g), challenges a final decision of the Commissioner of Social Security ("Commissioner") denying her benefits as a disabled widow.*fn2 After Plaintiff had exhausted the Social Security Administration's hearing and appeals process, the Commissioner determined that she did not satisfy the "nine-month duration — of — marriage requirement," a prerequisite to Plaintiff receiving widow's disability benefits. 42 U.S.C. § 416(c)(5). Appealing that decision, Plaintiff now moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c); the Commissioner cross-moves for the same relief.

  For the reasons set forth below, Plaintiffs motion is DENIED; the Commissioner's cross-motion is GRANTED. Page 2


  Plaintiff married Pedro Rodriguez on November 28, 1995. (Record [R.] 13, 19-20, 53.)*fn3 Less than a full nine months later, on August 27, 1996, Rodriguez, the wage earner, died. (Dkt. No. 1: Compl. ¶ 4; R. 54.) On July 7, 1998, at the age of fifty, Plaintiff applied to the Social Security Administration for widow's insurance benefits, claiming she was a single, disabled widow. (Compl. ¶ 4; R. 24-27.)

  It is undisputed that Plaintiff meets three of the requirements necessary to receive widow's benefits. See 42 U.S.C. § 402(e) (enumerating various prerequisites to receiving widow's insurance benefits). These three requirements are that Plaintiff: (1) is a disabled widow between fifty and sixty years old, (2) has not remarried, and (3) has applied for benefits. See 42 U.S.C. § 402(e). It is disputed, however, whether Plaintiff satisfies the nine-month duration — of — marriage requirement under 42 U.S.C. § 416(c)(5), necessary to qualify her as a "widow" under the statute. That section provides that to be a "widow," the surviving spouse must have been married to her deceased husband for a period of "not less than nine months immediately prior to the day on which he died." 42 U.S.C. § 416(c)(5).

  In light of this disputed issue, Plaintiff pursued her claim through all levels of administrative review.*fn4 During this process, three of the four administrative decisions denied Plaintiff widow's Page 3 benefits. First, the Social Security Administration ("Administration") denied Plaintiff's application on the ground that she was just shy of satisfying the nine-month duration — of — marriage requirement. Thereafter, Plaintiff requested reconsideration of this determination, and upon review, the Administration affirmed. (R. 28-32.) Plaintiff then exercised her right to a de novo hearing before an ALL (R. 33.) In a hearing held on September 30, 1999, Plaintiff testified that she married partly because her late husband wanted to leave her widow's Social Security benefits, and that she "wanted him to have his wish." (R. 22.) Approximately one month after this hearing, on November 3, 1999, the ALJ reversed the Administration's decision, concluding that Plaintiff was, in fact, entitled to widow's benefits.*fn5 (R. 8-14.) Finally, on May 25, 2000, the Appeals Council, consisting of two administrative appeals judges, upon its own motion, reversed the decision of the ALJ, concluding that Plaintiff failed to satisfy the nine — month duration — of — marriage prerequisite. (R. 5-7.) The Commissioner adopted the Appeals Council decision as the final decision. Thereafter, Plaintiff appealed.


  In reviewing a decision by the Social Security Administration, a district court gives substantial deference to the factual determinations of the Commissioner, provided such factual Page 4 determinations are supported by substantial evidence. See Morris v. Barnhart 2002 WL 1733804, at *4 (S.D.N.Y. July 26, 2002). With regard to legal conclusions made by the Commissioner, the Court will review the issues de novo. Accordingly, the Court will not defer to the Commissioner's determination if it is "the product of legal error." DeLeon v. Apfel 2000 WL 1873851, at *6 (S.D.N.Y. Dec. 21, 2000).


  A. The Nine-Month Duration — of — Marriage Requirement

  The central issue is whether Plaintiff qualifies as a "widow" as defined under section 416(c), and thus may be awarded widow's insurance benefits under the Social Security Act. For Plaintiff to be considered a "widow" under the statute, she must have been married to her deceased husband for nine months prior to his death. Plaintiff's marriage lasted from November 28, 1995, the day she was married, until August 27, 1996, the day her husband died. To determine whether Plaintiff qualifies as a "widow," the Court must determine precisely how to measure the section 416(c)(5) nine-month requirement.

  "The starting point in every case involving construction of a statute is the language itself." Blue chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756 (1975) (Powell, J., concurring). Section 416(c), in pertinent part, provides: "The term `widow' . . . means the surviving wife of an individual, but only if . . . (5) she was married to him for a period of not less than nine months immediately prior to the day on which he died." 42 U.S.C. § 416(c). "[W]here, as here, the statute's language is plain, `the sole function of the courts is to enforce it according to its terms.'" United States v. Ron Pair Enters., 489 U.S. 235, 241 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)). In addition, when the language of the statute is plain and precise, "no resort to legislative history is Page 5 necessary where the statutory language clearly resolves the dispute." See United States v. Oregon, 366 U.S. 643, 648 (1961).

  On its face, section 416(c)(5) requires that a widow be "married to [the deceased husband] for a period of not less than nine months immediately prior to the day on which he died. . . ." 42 U.S.C. § 416(c)(5) (emphasis added). The Court concludes that the statute's language is precise and speaks directly to the issue before the Court. If a statute "speaks clearly `to the precise question at issue,'" courts "`must give effect to the unambiguously expressed intent of Congress.'" Barnhart v. Walton, 535 U.S. 212, 217 (2002) (quoting Chevron U.S.A., Inc v. Natural Res. Def. Council Inc., 467 U.S. 837, 842-43 (1984)).

  The statute specifies that counting stops on the day "prior to the day on which [the wage earner] died." To comply with the plain meaning of the statute, Plaintiff must have been married to the wage earner no later than November 26, 1995, in order for the marriage to have been of nine-months duration on August 26, 1996, the day immediately preceding the day the wage earner died. The marriage, however, occurred on November 28, 1995; the plain meaning of section 416(c)(5) is, therefore, not fulfilled. Because Plaintiff does not satisfy the clear and unambiguous requirement enunciated in section 416(c)(5), "that is the end of the matter." Id. at 842.*fn6 Page 6

  Nevertheless, the Court also notes that the Commissioner's public policy manual further supports the Court's holding. The Program Operations Manual System ("POMS") states the following:

For the purposes of this duration provision, a month is a period ending with the day of the succeeding month numerically corresponding to the day of its beginning, less one. Count both the day of the marriage and the day preceding the day of death in figuring the 9-month period.
POMS GN 00305.100, Dkt. No. 6: Ex. A to Br. in Opp'n to Pl.'s Mot. for J. on the Pleadings & in Supp. of the Commissioner's Cross-Motion for J. on the Pleadings.

  Rodriguez died on August 27, 1996, just prior to the nine-month anniversary of his November 28, 1995 marriage to Plaintiff. As previously stated, in order to satisfy the standard as set forth in section 416(c)(5), the marriage would have had to have occurred no later than November 26, 1995. This would have allowed for the nine-month anniversary of the marriage date to fall on August 26, 1996, the corresponding calendar date nine months later, and one day before the date of death. A marriage of this duration would have satisfied the statute. Plaintiff, however, married the wage earner on November 28, 1995. In light of the wage earner's date of death, the marriage date is just shy of the Social Security Act's clearly enunciated, bright — line nine-month duration — of — marriage requirement. Under section 416(c)(5), Plaintiff does not qualify as a "widow," and thus is not entitled to widow's insurance benefits.

  B. Accidental Death and Due Process

  The Court also finds Plaintiffs alternative arguments lack merit. First, Plaintiff argues that this Court should determine that the wage earner's death was accidental, thus obviating the need for Plaintiff to meet the nine-month duration — of — marriage requirement. See 42 U.S.C. § 416(k)(1)(a); 20 C.F.R. § 404.335(a)(2)(i) Page 7 (crafting an exception to the nine-month duration — of — marriage requirement when the insured wage earner's death was accidental). Here, the wage earner's death was not accidental, but rather stemmed from an illness which afflicted him before the marriage. See 42 U.S.C. § 416(k); 20 C.F.R. § 404.335(a)(2) (stating that if the nine-month duration — of — marriage requirement is not met, the surviving wife may recover insurance benefits if, at the time of marriage, the wage earner was "reasonably expected to live for 9 months" and the death was accidental, i.e., it was caused by an event that the insured did not expect"). Plaintiff herself testified that her husband was not accidentally killed, but rather, died from an illness which afflicted him before the marriage. See R. 21 (Q. Okay. Okay. How did you husband die? A. He got sick. His liver. . . . Q. Okay. So it was a sickness. It wasn't an accident. Is that right? A. Yes, it was not an accident. He was sick.) Therefore, the record in this case does not permit the Court to determine that the wage earner's death was accidental.

  Second, Plaintiff argues that she has been denied due process in this case. As discussed earlier, Plaintiff proceeded through all levels of administrative review, receiving notice of hearings (R. 15, 40-42, 56, 59-63) and the opportunity to be heard at these hearings. (R. 16-23.) In addition, despite her contention, Plaintiff is not being denied an interest in continued receipt of Social Security benefits. In order to successfully assert a due process claim under the Fifth Amendment, a property interest in receiving benefits must already exist. Plaintiff has not been awarded benefits, and therefore has no constitutionally protected interest in "continued receipt" of them. Furthermore, Plaintiff cites no authority when claiming that property interests in widow's benefits can exist based on a wage earner's income. As a result, Plaintiffs due process arguments lack merit. Page 8


  For the foregoing reasons, Plaintiffs motion for judgment on the pleadings is DENIED; the Commissioner's cross-motion is GRANTED. The Clerk of the Court is directed to enter judgment accordingly and to close the case.

  So Ordered.

 *fn2 This case involves the issue of whether Plaintiff may receive insurance benefits as a disabled widow. Plaintiff has been receiving Social Security Insurance benefits of her own since 1991 given her "disabled" status. (Dkt. No. 3: Record [R.] 12, 20-21.)

 *fn3 The page citations to the Record are to the administrative record, which the Commissioner has filed with the Court. (See generally Dkt. No. 3.)

 *fn4 The Social Security Administration maintains an extensive hearing and appeals process. First, the Administration reviews the application and renders a decision. After the initial decision, a motion for reconsideration may be made to the Administration. After the Administration's second decision, a claimant may appeal to an Administrative Law Judge ("ALJ") for de novo review. Finally, a claimant may appeal an ALJ's decision to the Appeals Council, the highest level of administrative review. The Appeals Council may also review an ALJ's decision on its own motion, pursuant to 20 C.F.R. § 404.969-404.970.

 *fn5 The ALJ based his decision on what he believed to be an analogous duration requirement set forth in Social Security Regulation, 20 C.F.R. § 404.335(c)(2). He interpreted that regulation to imply a distinction between "full months" and "partial months" because its language requires that a fifty to sixty year-old widow be disabled during a waiting period of "5 full consecutive months" before being entitled to disability benefits. (R. 13.) The ALJ then applied this regulatory distinction to interpretation of the nine-month marriage requirement set forth in section 416(c)(5), finding that the nine-month requirement was satisfied because Plaintiff was married during part of nine separate months, from November 1995 through August 1996.

 *fn6 Despite the plain and unambiguous language of section 416(c)(5), Plaintiff points to the regulations promulgated by the Commissioner, which address the duration — of — marriage requirement. The Social Security Agency promulgated 20 C.F.R. § 404.335, which, in relevant part, states that a surviving wife is entitled to widow's benefits if her "relationship to the insured as a wife . . . lasted for at least 9 months immediately before the insured died." 20 C.F.R. § 404.335 (emphasis added). The Court concludes that the Commissioner's regulations echo section 416(c). Therefore, the regulatory language is consistent with the statutory language. Nevertheless, even if the regulation was inconsistent, the more specific and authoritative words in the statute govern. See Bell v. Reno, 218 F.3d 86, 90 (2d Cir. 2003) ("Under the now familiar test of Chevron U.S.A., Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837, 842 (1984), when we examine an agency's interpretation of a statute it administers, we ask first whether `the intent of Congress is clear' as to `the precise question at issue.' If . . . we determine that Congress's intent is clear, `that is the end of the matter.'"); see also Lewis v. Barnhart 285 F.3d 1329, 1333 (11th Cir. 2002) (concluding that even if the Social Security Commissioner's regulations interpreting section 416(c)(5) were inconsistent with the statute, section 416(c)(5) would nonetheless govern).

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