United States District Court, E.D. New York
August 26, 2004.
FELICITA RANDAZZO, Plaintiff,
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant.
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).
A. Procedural History
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
that the cause of death was "Carcinoma of lung Accident."
c. The Certificate of Death
The Certificate of Death which was certified by Dr. William C.
Porter, Jr. on September 27, 1972 states that the "IMMEDIATE
CAUSE [OF DEATH] WAS CARCINOMA LUNG DUE TO OR AS A CONSEQUENCE OF
FRACTURE[D] LEFT FEMUR."
d. Randazzo's Letter dated November 7, 2002
Although not before the ALJ, in a letter to the Appeals
Council, the plaintiff stated that she married Mr. Randazzo on
July 27, 1972, even though he was diagnosed with terminal lung
cancer just weeks before the wedding date. He was expected to
live approximately one year, but when he accidentally fell down
the stairs, he incurred multiple bruises and a fractured femur.
The plaintiff stated that even though his death certificate
states that the case of death was lung cancer, the death
certificate also notes that the cause of death was the trauma
caused by the accident. It was also stated that Mr. Randazzo
served in WWII and was a wage earner his entire life.
In its review of this matter, the Court may consider the
plaintiff's letter of November 7, 2002. See Monguer v. Heckler,
722 F. 2d 1033, 1038 (2d Cir. 1983) ("In reviewing an ALJ's
decision, we consider the entire administrative record, including
new evidence submitted to the Appeals Council following the ALJ's
decision.") (citing Perez v. Chater, 77 F. 3d 41, 46 (2d Cir.
B. The ALJ's Decision
The ALJ made the following findings in his decision denying the
plaintiff's request for widow's insurance benefits.
First, he found that the plaintiff's application for widow's
benefits, filed August 7, 1991, has been readjudicated pursuant
to a request that the initial denial of that application be
reopened and revised. Second, the ALJ determined that the
claimant and the wage earner were married on July 27, 1972.
Third, the ALJ found that the Wage Earner died on September 26,
1972 due to lung cancer, not because he fractured his femur. In
support of this conclusion, the ALJ noted that the Wage Earner's
death certificate states that the "immediate cause" of death was
lung carcinoma with "fracture of the left femur" listed
secondarily. In addition, the ALJ indicated that when the
plaintiff applied for veteran's widow benefits, she listed
"carcinoma of lung accident" as the cause of death. Fourth, the
ALJ found that because the claimant died from lung cancer and not
because he fractured his femur, the claimant's allegation that
the claimant's death was accidental is not sustainable. Finally,
the ALJ concluded that the claimant did not satisfy the nine
month marriage requirement to be eligible to receive widow's
C. New Evidence Contained in the Plaintiff's Affidavit
Attached to her Affidavit in Opposition to the defendant's
motion, Randazzo submitted two copies of Mr. Randazzo's hospital
admission record and a one page letter dated December 24, 2003
from Charles A. Connell, a friend. These documents were not
before the Commissioner. As such, the Court can consider these
letters only as a basis for a remand Moscatiello v. Apfel,
129 F. Supp. 2d 481, 490 (E.D.N.Y. 2001); see also
42 U.S.C. § 405(g) (1988) ("The court . . . may at any time order additional
evidence to be taken before the Secretary, but only upon a
showing that there is new evidence which is material and that
there is no good cause for the failure to incorporate such
evidence into the record in the prior proceeding. . . ."). The
Second Circuit summarized this "three part showing" as follows:
An appellant must show that the proferred evidence is (1) new and
not merely cumulative of what is already in the record, and that
it is (2) material, that is, both relevant to the claimant's
condition during the time period for which benefits were denied
and probative. The concept of materiality requires, in addition,
a reasonable possibility that the new evidence would have
influenced the Secretary to decide the claimants application
differently. (3) Finally, the claimant must show good cause for
her failure to present the evidence earlier. Lisa v. Secretary
of Health and Human Servs., 940 F. 2d 40, 43 (2d Cir. 1991)
(internal quotations and citations omitted).
The admission record pre-dates the ALJ's decision but the
plaintiff offers no reason for not including it as evidence in
the hearing before the ALJ. Thus, the Court denies the
plaintiff's request to add the hospital admission record as she
has failed to give "good cause" for not producing and presenting
the evidence at the time of her hearing.
In his letter, Mr. Connell indicates, among other things, that
he has known the claimant for forty-six years, that Randazzo was
a devoted mother and caretaker of her blind mother and
volunteered at her church, children's school, library and for the
American Red Cross. Mr. Connell further stated that in July 1972,
he learned that Mr. Randazzo "had developed an illness that
reportably was treatable, and which could prolong his life."
Charles Connell ltr. dated Dec. 24, 2003. In the Court's view,
the opinion of a layperson, such as Mr. Connell, is neither
relevant nor probative and would not have influenced the
Secretary to decide the claimants application differently. Thus,
this letter may not be added to the plaintiff's record.
A. The Legal Standard
To review the Commissioner's decision, the Court must determine
(1) whether the Commissioner applied the correct legal standard,
see Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); and (2)
whether the decision is supported by substantial evidence, see
42 U.S.C. § 405(g); Brown v. Apfel, 174 F.3d 59, 61-62 (2d Cir.
1999). Substantial evidence is "more than a mere scintilla,"
Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 206 (1938),
and requires enough evidence that a reasonable person "might
accept as adequate to support a conclusion." Brown,
174 F.3d at 62-63.
In determining whether the Commissioner's findings are
supported by substantial evidence, the Court's task is "to
examine the entire record, including contradictory evidence and
evidence from which conflicting interferences can be drawn."
Id. at 62 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038
(2d Cir. 1983) (per curiam)). In addition, the Court is mindful
that "it is up to the agency, and not this court, to weigh the
conflicting evidence in the record." Clark v. Commissioner of
Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). Indeed, in
evaluating the evidence, "`the court may not substitute its own
judgment for that of the Secretary, even if it might justifiably
have reached a different result upon de novo review.'" Jones
v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v.
Secretary of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.
Remand of a disability claim for further administrative
procedures is an appropriate remedy where, among other things,
(1) "there are gaps in the administrative record or the ALJ has
applied an improper legal standard . . .," Rosa v. Callahan,
168 F.3d 72, 82-83, or (2) new, material evidence is adduced that
was not produced before the agency. See Raitport v. Callahan,
183 F.3d 101, 104 (2d Cir. 1999) (citation omitted).
In addition, the Court must liberally interpret the complaint
of a pro se plaintiff. Haines v. Kerner, 404 U.S. 519,
520-21, 92 S. Ct. 594 (1972); Williams v. Smith, 781 F.2d 319,
322 (2d Cir. 1986). Nevertheless, pro se status "does not
exempt a party from compliance with relevant rules of procedural
and substantive law." Traguth v. Zuck, 710 F.2d 90, 92 (2d Cir.
1983) (citations omitted).
B. As to the Denial of Widow's Benefits
Section 202(e) of the Act provides for the payment of monthly
benefits to the widow of an individual who dies fully insured. A
"widow" is defined in pertinent part as
the surviving wife of an individual, but only if
. . . 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)(5); see also 20 C.F.R. § 404.335(a)(2).
This nine-month duration requirement for widow's benefits is a
means of safeguarding against the payment of benefits where a
relationship was entered into in order to secure benefit rights.
Weinberger v. Salfi, 422 U.S. 749, 45 L. Ed. 2d 522,
95 S. Ct. 2457 (1975) (upholding the durational requirement as
constitutional because it found that any imprecision in the
application of the requirement was "justified by its ease and
certainty of operation.").
In the event that a widow was not married to the wage earner
for at least nine months, this nine month requirement is deemed
satisfied where the widow can establish that at the time of the
marriage, the wage earner reasonably expected to live for nine
months and that his death was accidental.
42 U.S.C. § 416(k)(a)(A) (indicating that the nine-month durational
requirement will be waived in the case of "accidental death . . .
unless the Commissioner of Social Security determines that at the
time of the marriage involved the individual could not have
reasonably been expected to live for nine months."); see also
20 C.F.R. § 404.335 (a)(2)(i). A death is "accidental"
if he receives bodily injuries solely through
violent, external, and accidental means and, as a
direct result of the bodily injuries and
independently of all other causes, loses his life not
later than three months after the day on which he
receives such bodily injuries.
42 U.S.C. § 416(k); see also 20 C.F.R. § 404.335(a)(2)(i) (A
"death is accidental if it was caused by an event that the
insured did not expect; it was the result of bodily injuries
received from violent and external causes; and as a direct result
of these injuries, death occurred not later than 3 months after
the day on which the bodily injuries were received."); see also
Miller v. Bowen, 789 F.2d 678, 679 (9th Cir. 1986).
Here, it is undisputed that the plaintiff was married to the
Wage Earner for less than nine-months. Thus, in order to receive
widow's benefits, the plaintiff must establish (1) that at the
time of their marriage, Mr. Randazzo was reasonably expected to
live for nine months, and (2) that his death was accidental
within the requirements of 42 U.S.C. § 416(k) as being caused by
bodily injury through violent, external, and accidental means.
In a case such as this [w]here a pre-existing disease exists,
[the Commissioner] must decide which factor (the accidental
injury or the pre-existing disease) was primarily responsible for
causing death at the particular time that death occurred. A
preexisting disease (or illness) does not, necessarily, preclude
a finding that the accidental injury was the proximate cause of
Program Operations Manual System ("POMS") GN 00305.105(A)(3)(d)
(emphasis added). The Commissioner must determine which, as
between the accident or the pre-existing disease, is "the more
substantial contributing factor." Id.
In denying widow's benefits to the plaintiff, the Secretary did
not address whether Mr. Randazzo was reasonably expected to live
for nine months from the date of his marriage to the plaintiff.
Rather, benefits were denied to the plaintiff solely on the basis
that Mr. Randazzo's death was not accidental in that it was
caused by his lung cancer and not by the fracture of his femur.
In support of his conclusion, the ALJ primarily relied upon the
death certificate which states in pertinent part that the
"IMMEDIATE CAUSE [OF DEATH] WAS CARCINOMA LUNG DUE TO OR AS A
CONSEQUENCE OF FRACTURE[D] LEFT FEMUR." The ALJ also noted that
the plaintiff's application for veteran's widow benefits states
that "carcinoma of lung accident" was the cause of death.
In the Court's view, the crucial inquiry is whether the
plaintiff was reasonably expected to live for nine months from
the date of the marriage. If death occurs before the elapse of
nine months of marriage, an accident is not considered to be
the sole cause of death
[i]f the worker had an active progressive disease, which in and
of itself, was expected to cause death before 9 months after the
date of the marriage, and an accident aggravated it so that the
death resulted at a particular time. . . .
POMS GN 00305.105(A)(3)(d) (emphasis added). On the other hand,
an accident will be considered the sole cause of the fatality
[i]f the worker had an active, progressive disease, which, in
and of itself, could have caused death more than 9 months after
the date of the marriage, and an accident aggravated it so that
death resulted before nine months of marriage elapsed. . . .
Id. (emphasis added).
Here, there is a material factual issue as to whether Mr.
Randazzo was reasonably expected to live for more than nine
months from the time of the marriage. The ALJ erred in failing to
make this determination.
In addition, in relying solely on the death certificate and the
application for veteran's widow benefits, the Commissioner failed
to follow the procedure set forth in the POMS. According to the
POMS, the Commissioner is to [t]horoughly develop all cases
involving allegations of accidental death not excepted [where the
death certificate shows that an accident was the sole cause of
death] while recognizing the sensitive nature of the development.
This includes obtaining a death certificate in all cases . . . as
well as hospital, doctor's . . . records and any other pertinent
information and statements . . .
Of significant probative value . . . is a statement from the
[wage earner's] treating physician about the [wage earner's]
condition prior to the accident, including any pre-existing
disease (or illness), the status of the disease and its future
impact on the [wage earner's] health. If the claimant alleges
that the accident resulted from surgery, request the treating
physician's assessment of the risk and the [wage earner's]
likelihood of recovery.
POMS GN 00305.105(B)(2).
The administrative record in this case did not contain any of
Mr. Randazzo's medical records addressing the June 1972 diagnosis
of cancer. Such records would be instrumental in assisting the
Commissioner with her determination as to whether Mr. Randazzo
was reasonably expected to live for nine months from the date of
his marriage. Moreover, with respect to the Commissioner's heavy
reliance on the Wage Earner's death certificate in determining
the cause of death, the Court notes that although a "death
certificate generally indicates the cause of death . . . Entries
on the death certificate are not necessarily controlling.
Evidence may establish that the cause of death was misclassified
or that the circumstances of the particular case justify a
finding that the death was accidental." POMS GN 00305.105(A)(2).
Further, the Court notes that the death certificate states that
the death by carcinoma was "due to or as a consequence of
fracture[d] left femur." That statement is evidence supporting a
conclusion that the decedent may have died as a result of an
accident. Significantly, should the ALJ determine that Mr.
Randazzo could have reasonably lived for nine months from the
date of his marriage to the plaintiff, under the POMS the fact
that Mr. Randazzo's death was a "consequence" of his accident
mandates a finding that Ms. Randazzo is eligible for widow's
benefits. See POMS GN 00305.105(A)(3)(d) ("If the worker had an
active, progressive disease, which, in and of itself, could have
caused death more than 9 months after the date of the marriage,
and an accident aggravated it so that death resulted before 9
months of marriage elapsed, consider the accident to be the sole
cause of the fatality.").
Finally, given the limited financial means of the plaintiff,
the Court reiterates the Commissioner's duty to notify the
of the options for obtaining attorneys to represent
[her] in presenting [her] case before the
Commissioner of Social Security. Such notification
shall also advise the claimant of the availability to
qualifying claimants of legal services organizations
which provide legal services free of charge.
42 U.S.C. §§ 406(c), 1383(d)(2)(B).
Based on the foregoing, it is hereby
ORDERED, that the Commissioner's motion for judgment on the
pleadings in DENIED; and it is further
ORDERED, that the final decision of the Commissioner is
vacated and this case is REMANDED to the Commissioner for a new
hearing during which he is to apply the Program Operations Manual
System regulations and the applicable law to determine whether
the Wage Earner was reasonably expected to live for nine months
from the date of marriage, and, if so, whether his death was
accidental; and it is further
ORDERED, that the Clerk of the Court is directed to close
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