Abkes v. Apfel, C 97-105 MJM.

• Decision Date: 18 November 1998
• Docket Number: No. C 97-105 MJM.,C 97-105 MJM.
• Citation: 30 F.Supp.2d 1149
• Parties: Alice ABKES, Mother of and o/b/o Anthony Abkes, a Minor Child, Plaintiffs, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Iowa

30 F.Supp.2d 1149

Alice ABKES, Mother of and o/b/o Anthony Abkes, a Minor Child, Plaintiffs, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.

No. C 97-105 MJM.

United States District Court, N.D. Iowa, Cedar Rapids Division.

November 18, 1998.

COPYRIGHT MATERIAL OMITTED

Vivian P. Meyer-Betts, Legal Services Corp. of Iowa, Waterloo, IA, for Plaintiffs.

Lawrence D. Kudej, U.S. Attorney's Office, Northern District of Iowa, Cedar Rapids, IA, for Defendant.

ORDER

MELLOY, Chief Judge.

The matter before the court is the Report and Recommendation of Magistrate Judge John A. Jarvey, in which Judge Jarvey recommends that the decision of the Commissioner of Health and Human Services be affirmed. Judge Jarvey's Report and Recommendation was filed with the Clerk of Court on September 15, 1998. To date, no objection to the Report and Recommendation has been filed.

More than ten days have now elapsed since the filing of Magistrate Judge Jarvey's Report and Recommendation. Accordingly, pursuant to 28 U.S.C. § 636(b)(1)(C) and F.R.C.P. 72(b), the Report and Recommendation of Magistrate Judge Jarvey is adopted.

IT IS THEREFORE ORDERED that Magistrate Judge Jarvey's Report and Recommendation is adopted. The decision of the Commissioner of Health and Human Services is affirmed, and plaintiff's complaint is dismissed.

REPORT AND RECOMMENDATION

JARVEY, United States Magistrate Judge.

This matter comes before the court pursuant to briefs on the merits submitted herein (Docket numbers 17, 20, 23). This matter was referred to the undersigned United States Magistrate Judge for the issuance of a report and recommendation. It is recommended that the final order of the Commissioner of Social Security denying child's insurance benefits to the plaintiff, Anthony Abkes be affirmed and the complaint in this matter dismissed.

Procedural Background

On April 25, 1994, Alice Abkes (Alice) filed an application for survivor's child's insurance benefits on behalf of her son, Anthony Abkes (Anthony) pursuant to 42 U.S.C. § 402(d) on the earnings record of the deceased wage earner, Robin L. Warren (died 8/15/88). This claim was denied on June 23, 1994 because Anthony did not qualify as Warren's "child" under the provisions of the Social Security Act. On August 19, 1994, Alice requested that the unfavorable decision be reconsidered. The decision was reconsidered and it was again denied on November 25, 1994. On January 5, 1995, Alice requested a hearing by an Administrative Law Judge (ALJ). The hearing was held on October 20, 1995. On March 21, 1996 the ALJ denied benefits to Anthony, deciding that Anthony was not dependent upon Warren's and therefore not entitled to survivor's benefits. Alice requested a review by the Appeals Council and was denied such review on March 14, 1997, thereby making the decision of the ALJ the final decision of the Commissioner of Social Security in this case. On May 23, 1997 Alice filed a complaint in United States District Court Northern District of Iowa pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security.

Alice now claims that Anthony is eligible for surviving child's insurance benefits pursuant to 42 U.S.C. § 402(d) because paternity has been established by a court of competent jurisdiction under Iowa law and there is substantial evidence in the record to conclude that Anthony was a dependent child. Alice also claims that reliance on Iowa's intestacy statute, Iowa Code § 633.222, in determining dependency under 42 U.S.C. § 416(h)(2)(A) violates Anthony's rights under the Equal Protection clause of the Fourteenth Amendment.

Factual Background

It is undisputed that Alice and Warren engaged in sexual intercourse around the middle of August, 1987 and Anthony was born approximately nine months later on May 10, 1988. However, Warren's ex-wife (Joni) and other members of Warren's family claim that Alice was having sexual relations with other men directly before and after the time she was intimate with Warren. Warren had no involvement with Alice's prenatal regimen other than possibly noticing that she was pregnant. He is not identified as the father on Anthony's birth certificate.

Shortly after Anthony was born, Alice informed Warren that he was the father. Warren's response to this news is the subject of a factual dispute. Alice and her family claim that Warren was enthusiastic about being Anthony's father and assumed an active role in Anthony's rearing. Warren's ex-wife and his family claim that Warren continuously denied paternity and showed little, if any, interest in Anthony. It is undisputed that Alice and Warren did spend some time together after the birth of Anthony, but again the quality and quantity of these contacts is greatly disputed. Alice told officials at the Child Support Recovery Unit that Warren was Anthony's father, but Warren died only three months after Anthony's birth, giving the recovery unit insufficient time to undertake any investigation. Prior to Warren's death, Alice attempted to secure a blood sample, but was unsuccessful as Warren was in a medical condition that made it impossible for him to consent to the procedure. Blood samples were taken from Warren's family members and tested, but the results were inconclusive.

On February 22, 1993 Alice filed a paternity action in Iowa District Court, Hardin County. The judge was aware that paternity mattered only to the issue of Social Security benefits. The judge in that case decided that, even though nearly every fact regarding Alice, Warren, and Anthony's involvement was disputed and it was a very close case, paternity was established by a preponderance of the evidence.

Scope of Review — Substantial Evidence

The scope of a district court's review of the Commissioner's final decision is set forth in 42 U.S.C. § 405(g) which provides, in part, that:

[t]he court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive ...

42 U.S.C. § 405(g).

In order for the court to affirm the ALJ's findings of fact, those findings must be supported by substantial evidence appearing on the record as a whole. See Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir.1992); Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir.1989). Substantial evidence is more than a mere scintilla. It means 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, 28 L.Ed.2d 842 (1971); Cruse, 867 F.2d at 1184; Taylor v. Bowen, 805 F.2d 329, 331 (8th Cir.1986). The court must take into account evidence which fairly detracts from the ALJ's findings. Cruse, 867 F.2d at 1184; Hall v. Bowen, 830 F.2d 906, 911 (8th Cir. 1987). Substantial evidence requires "something less than the weight of evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence." Cruse, 867 F.2d at 1184 (quoting Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966)). The court must consider the weight of the evidence appearing in the record and apply a balancing test to contradictory evidence. Gunnels v. Bowen, 867 F.2d 1121, 1124 (8th Cir.1989); Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir.1987).

CONCLUSIONS OF LAW

A "child of a fully insured deceased individual" is entitled to social security benefits if the child:

(1) as filed an application for child's insurance benefits;

(2) is under age 18 and unmarried at the time of the application; and

(3) was dependent upon the insured individual at the time of the death of the insured individual.

42 U.S.C. § 402(d)(1).

In cases such as this where there is a dispute over whether a person is in fact the child of a fully insured deceased individual, there are four ways for that child to be determined to be the child of a fully insured individual. First, in the case of a deceased individual, if he acknowledged in writing that the applicant is his child or he had been decreed by a court to be the father of the applicant or had been ordered by a court to contribute to the support of the applicant because the applicant was his son or daughter, then the child will be deemed to be the child of such insured individual. 42 U.S.C. § 416(h)(3)(C). However, such acknowledgment, court decree, or court order had to have been made before the death of the insured individual. Id. None of these things happened in the matter now before the court.

Second, the child will be deemed to be the child of the insured individual if the applicant can show that the insured individual was the father of the applicant and was living with or contributing to the support of the applicant at the time the insured individual died. Warren did not live with or contribute to the support of Anthony before he died.

Third, the applicant can be deemed to be the child of a fully insured parent if his parents subsequently marry. Finally, in determining whether an applicant is the child, the Secretary shall apply such law as would be applied in determining that devolution of intestate personal property by the courts of the state in which such insured individual is domiciled at the time such applicant files application. 42 U.S.C. § 416(h)(2)(A).

Once it is determined that the applicant is the child of a fully insured individual, the applicant must also prove that he was dependent on the fully insured individual at the time of his death. 42 U.S.C. § 402(d)(1). The child is deemed to be dependent upon the insured individual at the time of the individual's death unless at such time the...