Abreu v. Colvin
| Decision Date | 06 October 2015 |
| Docket Number | No. 14 Civ. 9240(JCF).,14 Civ. 9240(JCF). |
| Citation | 152 F.Supp.3d 166 |
| Parties | Indiana ABREU, Madeline Martinez, and Jairo Martinez, Plaintiffs, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Guilene Cherenfant, Legal Services NYC, Bronx, NY, for Plaintiffs.
Joseph Anthony Pantoja, New York, NY, for Defendant.
There are two issues central to this case. The first is whether, under New York law, a DNA test is a sufficient basis for overcoming the presumption that a child born to a married woman was fathered by her husband. This question arises in the context of an application for child's insurance benefits, to which the surviving child of a deceased wage earner is entitled under the Social Security Act (the “Act”). The second critical issue is whether, despite definitive evidence that an applicant is not the biological offspring of the wage earner, she may nevertheless be “deemed” his child under the Act.
The plaintiffs, Indiana Abreu and her children, Madeline and Jairo Martinez, bring this action pursuant to section 205(g) of the Act, 42 U.S.C. § 405(g), seeking reversal of a decision of the Commissioner of Social Security (the “Commissioner”), denying Ms. Abreu's application for benefits on behalf Madeline and Jairo. The plaintiffs have moved for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. The Commissioner has cross-moved, seeking a remand for further administrative proceedings. The parties have consented to my jurisdiction for all purposes pursuant to 28 U.S.C. § 636(c). For the reasons that follow, the plaintiffs' motion is granted and the Commissioner's motion is denied.
Indiana Abreu married Santiago Martinez on August 18, 1986. (R. at 201).1 On September 15, 1988, Ms. Abreu gave birth to her first child, Madeline. (R. at 152, 384, 467). Three years later, her son Jairo was born on September 15, 1991. (R. at 153, 383, 466). In both instances, the birth certificates filed with the Bureau of Vital Records of the New York City Department of Health at the time of birth listed Ms. Abreu as the mother and Mr. Martinez as the father. (R. at 152–53, 383–84, 466–67).
Mr. Martinez suffered from alcoholism, and, as a result, sometime after the birth of Jairo, Ms. Abreu initiated divorce proceedings. (R. at 549–50). After the couple separated, Ms. Abreu obtained a Family Court order of support on March 10, 1992, requiring Mr. Martinez to provide financial assistance for Madeline and Jairo, whom the order identified as his children. (R. at 29394). The divorce was made final in the Dominican Republic on April 22, 1993 (Tr. at 203–09), and the order of support remained in effect until December 1996, when Mr. Martinez sought to terminate it because he was unemployed (R. at 80–81, 397–99, 480–82).
Mr. Martinez died on December 23, 2000 (R. at 70), and on April 20, 2001, Ms. Abreu filed an application for child's insurance benefits on behalf of Madeline, based on Mr. Martinez's insured status. (R. at 70–72). Ms. Abreu did not seek benefits on behalf of Jairo, noting in the application that he was not the biological son of Mr. Martinez. (R. at 71–72). Madeline was found eligible for a lump-sum death benefit and survivor benefits retroactive to December 2000. (R. at 77–96).
At some point thereafter, Ms. Abreu apparently initiated paternity proceedings, alleging that Madeline's actual father was a man named Ubaldo Dominguez. (R. at 103). She had previously had Madeline's surname changed to Dominguez on the child's birth certificate. (R. at 71). A DNA test was performed in September 2002, which confirmed Mr. Dominguez's paternity with 99.99 percent probability. (R. at 97–103).
Ms. Abreu then presented the report of the DNA test to the Social Security Administration (the “SSA”) and requested that Madeline's benefits be terminated, as she was not the child of Mr. Martinez. (R. at 104–05). According to Ms. Abreu, she came forward with this information because she had joined a church and felt guilty about having obtained benefits on the basis of false information. (R. at 169).
She also stated that Jairo, too, was the child of Mr. Dominguez rather than Mr. Martinez. (R. at 169). On April 17, 2003, the SSA rescinded Madeline's eligibility for survivor benefits and ordered repayment of the benefits already provided, including the lump-sum death benefit. (R. at 107–15).
On October 22, 2003, Ms. Abreu filed a new application for survivor benefits on behalf of Madeline and on behalf of Jairo as well. (R. at 122–47). The SSA denied her application based on the DNA test for Madeline and Ms. Abreu's prior statements regarding the paternity of both children. (R. at 149). Ms. Abreu sought reconsideration, alleging that she had made a “mistake” in stating that Mr. Martinez was not the father of her children because she had been sick and depressed at the time. (R. at 156). On July 20, 2006, the SSA denied reconsideration. (R. at 44–45). She then sought review by an administrative law judge (“ALJ”), the first of a series of administrative proceedings that will be described below.
The Social Security Act provides for child's survivor benefits for the dependent minor children of deceased insured workers. 42 U.S.C. § 402(d) ; see Bosco ex rel. B.B. v. Astrue, No. 10 Civ. 7544, 2013 WL 3358016, at *4 (S.D.N.Y. Feb. 19, 2013), aff'd in relevant part, 2013 WL 3357161 (S.D.N.Y. July 3, 2013). An applicant is eligible for benefits if “[1] she meets the Act's definition of ‘child,’ [2] is unmarried, [3] is below specified age limits (18 or 19) or is under a disability which began prior to age 22, and [4] was dependent on the insured at the time of the insured's death.” Astrue v. Capato, ––– U.S. ––––, ––––, 132 S.Ct. 2021, 2027, 182 L.Ed.2d 887 (2012) (citing 42 U.S.C. § 402(d)(1) ); see Bosco, 2013 WL 3358016, at *4 ; McLaughlin v. Astrue, No. 10 CV 506, 2012 WL 2449938, at *2 (E.D.N.Y. June 27, 2012) ; Thomas ex rel. N.T. v. Astrue, 674 F.Supp.2d 507, 520 (S.D.N.Y.2009) ; Howell ex rel. Howell v. Barnhart, 265 F.Supp.2d 268, 270–71 (S.D.N.Y.2003). The contested issue here is whether Madeline and Jairo each qualify as a “child” of Mr. Martinez.
The Social Security Act defines “child” as, among other things, “the child or legally adopted child of an individual.” 42 U.S.C. § 416(e). Fortunately, this “vague tautology,” Bosco, 2013 WL 3358016, at *4 ; see Capato, ––– U.S. at ––––, 132 S.Ct. at 2029 (referring to § 416(e)'s “tautological definition”), is not the exclusive statutory definition. Rather, 42 U.S.C. § 416(h) further addresses the term and provides multiple pathways by which an applicant can be deemed the “child” of the insured. The primary route incorporates state intestacy law:
In determining whether an applicant is the child or parent of a fully or currently insured individual ..., the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death....
42 U.S.C. § 416(h)(2)(A) ; see Capato, ––– U.S. at ––––, 132 S.Ct. at 2028.
Alternatively, even if state intestacy law would not recognize the applicant as the child of the wage earner, the Act deems her so “if the insured and the other parent went through a marriage ceremony that would have been valid but for certain legal impediments.” Capato, ––– U.S. at ––––, 132 S.Ct. at 2028 (citing 42 U.S.C. § 416(h)(2)(B) ).
Similarly, an applicant is deemed a “child” if the insured acknowledged her in writing as his daughter. 42 U.S.C. § 416(h)(3)(C)(i)(I) ; Capato, ––– U.S. at ––––, 132 S.Ct. at 2028.
Next, the applicant is considered the child of the insured if, prior to the death of the insured, the insured had been decreed by a court to be the parent of the applicant. 42 U.S.C. § 416(h)(3)(C)(i)(II) ; Capato, ––– U.S. at ––––, 132 S.Ct. at 2028.
Further, the applicant is deemed the insured's child if the insured “had been ordered by a court to contribute to the support of the applicant because the applicant was his or her son or daughter.” 42 U.S.C. § 416(h)(3)(C)(i)(III) ; see Capato, ––– U.S. at ––––, 132 S.Ct. at 2028.
Finally, “an applicant may gain ‘child’ status upon proof that the insured individual was the applicant's parent and ‘was living with or contributing to the support of the applicant’ when the insured individual died.” Capato, ––– U.S. at ––––, 132 S.Ct. at 2028 (quoting § 416(h)(3)(C)(ii) ).2 In order to meet this test, “[c]ontributions must be made regularly and must be large enough to meet an important part of [the applicant's] ordinary living costs,” 20 C.F.R. § 404.366, and the applicant bears the burden of producing evidence of contribution, 20 C.F.R. § 404.704.
Whether an applicant is considered to have been dependent upon the insured wage earner is closely tied to whether she is deemed a child. For example, a child is considered dependent on the wage earner if, at the time of death, the wage earner was living with or contributing to the support of the child. 42 U.S.C. § 402(d)(3). Alternatively, an applicant is deemed to be dependent if she is deemed to be the wage earner's child by means of one of the alternative pathways, including intestacy law, 20 C.F.R. §§ 404.361(a) (), 404.355(a)(1) (), or pursuant to a court order of support. See Capato, ––– U.S. at ––––, 132 S.Ct. at 2027 n. 3 (...
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