The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
Felicita Randazzo ("Randazzo" or the "plaintiff") proceeding
pro se commenced this action pursuant to the Social Security
Act ("Act"), 42 U.S.C. § 405(g), challenging the final
determination of Jo Anne B. Barnhart, the Commissioner of Social
Security ("Commissioner") denying her widow's insurance benefits.
Presently before the Court is a motion by the Commissioner for
judgment on the pleadings pursuant to Federal Rule of Civil
Procedure ("Fed.R. Civ. P.") 12(c).
On August 7, 1991, Randazzo filed an application for widow's
insurance benefits with the Department of Health and Human
Services This application was denied on September 7, 1991 on the
basis that the plaintiff was not married to Stephen Randazzo
("Wage Earner") for at least nine months before the date of his
death as required by the Act. On November 28, 2000, the plaintiff
requested that the decision denying her benefits be reopened.
After her application was denied, the plaintiff requested an
administrative hearing. On September 30, 2002, a hearing was held
before Administrative Law Judge Emanuel Poverstein (the "ALJ").
At the hearing, the plaintiff was represented by an attorney.
In a decision dated October 16, 2002, the ALJ found that
Randazzo was married to the Wage Earner for less than the nine
months required by the Act to receive widow's benefits and that
she failed to sustain her burden of proving that was entitled to
a waiver of the nine-month requirement. Subsequently, Randazzo
filed a request for review with the Appeals Council. On February
5, 2003, the Appeals Council denied the plaintiff's request for a
review, making the ALJ's decision the final administrative
determination. This appeal followed.
1. Randazzo's letter to the ALJ
Prior to the hearing, by letter dated September 12, 2002,
Michael Sullivan, Esq., counsel for Randazzo, submitted a letter
to the ALJ to which an unsigned statement by Randazzo was
affixed. In this statement, the plaintiff explained that she and
the Wage Earner were planning to be married in June 1972. Just
before this date, Dr. Leonard Birch, since deceased, diagnosed
Mr. Randazzo with cancer and stated that the cancer "would
probably cause his death in about one year." Despite this
prognosis, the plaintiff and the Wage Earner were married in July
1972. On September 20, 1972, Mr. Randazzo fell down a flight of
stairs and fractured his left femur. On September 26, 1972, after
six days of hospitalization, Mr. Randazzo passed away. The
plaintiff stated in her letter that "because of the cancer, he
was not able to overcome the injuries sustained in his fall."
2. Randazzo's Testimony at the Hearing
The plaintiff testified that she was born on February 6, 1929
and completed two years of college in Europe. On July 27, 1972,
the plaintiff married Stephen Randazzo. On September 24, 1972,
Mr. Randazzo passed away. The plaintiff currently receives $116
per month from Social Security based on her own work history. The
plaintiff does not receive any Public Assistance nor does she
have any other sources of monthly income.
The plaintiff was supposed to marry Mr. Randazzo at the end of
June. Towards the end of June 1972, Mr. Randazzo was diagnosed
with lung cancer. Prior to their wedding date, Mr. Randazzo was
admitted to the hospital for tests and was diagnosed with lung
cancer. Thereafter, on July 27, 1972, the plaintiff married Mr.
Randazzo. At some point prior to September 18, 1972, Mr. Randazzo
told the plaintiff that he could live eight months to one year.
On September 18, 1972, Mr. Randazzo fell down a flight of stairs
and was hospitalized for six days. Ms. Randazzo testified that on
September 24, 1972, Mr. Randazzo passed away while in the
hospital. Ms. Randazzo stated that the fall "aggravated this
3. Other Documentation in the Record
a. Application for Widow's or Widower's Insurance Benefits
On August 6, 1991, the plaintiff completed an "Application for
Widow's Insurance Benefits." In this application, the plaintiff
indicated that the Wage Earner was born on April 24, 1923 and
died on September 26, 1972. Also, it stated that the Wage
Earner's previous marriage ended in divorce on January 15, 1972.
The plaintiff further indicated that she and Mr. Randazzo were
living together at the time of his death.
b. Application for Survivor's Benefits.
In an application for Survivor's Benefits, the plaintiff
indicated that Mr. Randazzo was a Corporal in the military from
February 22, 1943 to February 12, 1946. The plaintiff also stated