Albertson v. Apfel, Docket No. 00-6255
| Decision Date | 09 April 2001 |
| Docket Number | Docket No. 00-6255 |
| Citation | 247 F.3d 448 |
| Parties | (2nd Cir. 2001) DOROTHY ALBERTSON, Plaintiff-Appellant, v KENNETH S. APFEL, Commissioner of Social Security, Defendant-Appellee. August Term 2000 Submitted: |
| Court | U.S. Court of Appeals — Second Circuit |
Plaintiff-appellant Dorothy Albertson appeals from a decision of the United States District Court for the Eastern District of New York (Arthur D. Spatt, Judge) that upheld the determination of defendant-appellee Kenneth S. Apfel, Commissioner of Social Security, that plaintiff was not entitled to Social Security benefits as a "surviving divorced wife" pursuant to 42 U.S.C. §§ 402(e) and 416(d).
We affirm.
DOROTHY ALBERTSON, Pro Se, Messapequa, NY for Plaintiff-Appellant.
ARTEMIS LEKAKIS, Assistant United States Attorney (Loretta E. Lynch, United States Attorney, Varuni Nelson and Kathleen Mahoney, Assistant United States Attorneys Eastern District of New York), Brooklyn, NY for Defendant-Appellee.
Before: WALKER, Chief Judge, McLAUGHLIN and SOTOMAYOR, Circuit Judges.
Plaintiff-appellant Dorothy Albertson appeals from an August 10, 2000 judgment of the United States District Court for the Eastern District of New York (Arthur D. Spatt, Judge) that upheld the determination of defendant-appellee Kenneth S. Apfel, Commissioner of Social Security, that plaintiff was not entitled to Social Security benefits as a "surviving divorced wife" pursuant to 42 U.S.C. §§ 402(e) and 416(d).
Albertson was married to Thomas Greilich, the wage earner, on February 9, 1952. She obtained a divorce from him on February 3, 1962, in Mexico City, Mexico, which the Consul of the United States authenticated on February 6, 1962. After Greilich's death in July 1995, Albertson applied for survivorship benefits as a "surviving divorced wife" under 42 U.S.C. § 402(e). To qualify for survivorship benefits, however, § 416(d)(2) requires that a "surviving divorced wife" must have been married to the wage-earning spouse, prior to his death, "for a period of 10 years immediately before the date the divorce became effective." 42 U.S.C. § 416(d)(2). Because, under the best case scenario for Albertson, her divorce from Greilich became effective three days shy of the requisite ten years (e.g., when it was authenticated by the U.S. Consul), the Social Security Administration ("SSA") denied her application for survivorship benefits.
Albertson appealed to the district court and argued that she should be credited with three days because there were three leap years during her marriage, thus, in her view, making the duration of the marriage exactly 10 years as required by § 416(d)(2). The district court rejected this argument; it reasoned that "leap years are considered to be nothing more than ordinary calendar years, and do not provide a'spare day' to be added." We agree.
The statutory requirement of "10 years" in § 416(d)(2) does not differentiate between leap years and non-leap years. See George v. Sullivan, 909 F.2d 857, 862 (6th Cir. 1990) (requiring 10 full years); Moon v. Shalala, No. 93-1267, 1994 WL 740899, at *3 (N.D.N.Y. Oct. 4, 1994) (same). Rather, it simply denotes the recognized "calendar year" which, as it happens, includes an extra day every fourth year.1 See also ...
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Turner v. Colvin, Case No. 4:14cv622-WS/CAS
...wife benefits because the undisputed facts show that Plaintiff does not meet the criteria for eligibility. See Albertson v. Apfel, 247 F.3d 448, 449 (2d Cir. 2001) (claimant widow ineligible for surviving divorced wife benefits because divorce effective three days shy of ten-year requiremen......
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... ... Docket No. FA-14-4073712-S (January 25, 2016, Suarez, J.) ... (2016 WL ... the plaintiff for more than ten years. Albertson v ... Apfel , 247 F.3d 448, 449 (2nd Cir., 2001) ... ...
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Turner v. Berryhill
...WIB eligible, see N.Y. Dom. Rel. Law § 10. Courts strictly construe the ten-year duration requirement. See, e.g., Albertson v. Apfel, 247 F.3d 448, 449-50 (2d Cir. 2001) (rejecting a claimant's application because her marriage to the wage earner fell three days short of ten years). In gener......
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Table of Cases
...9th-02 Alacare Home Health Servs., Inc. v. Sullivan , 891 F.2d 850, 855 n.5 (11th Cir. 1990), §§ 106.10, 601.1, 1601.1 Albertson v. Apfel, 247 F.3d 448 (2d Cir. Apr. 27, 2001) , 2d-01, §404.4 Albright v. Comm’r of SSA , 174 F.3d 473 (4th Cir. Apr. 22, 1999), 4th-99, §§ 506.1, 603.4, 1103 Al......
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Nondisability issues
...spouse “‘for a period of 10 years immediately before the date the divorce became effective,’” prior to his death. Albertson v. Apfel , 247 F.3d 448, 449 (2d Cir. 2001), quoting 42 U.S.C. § 416(d)(2). In Albertson , the claimant argued that she should be credited with three days because ther......
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Case Index
...v. Barnhart , 299 F.3d 1004 (8th Cir. June 14, 2002), 8th-02 § 404.3. Deemed Valid Marriage § 404.4. Divorced Spouses Albertson v. Apfel , 247 F.3d 448 (2d Cir. Apr. 27, 2001), 2d-01 Costello v. Astrue , 499 F.3d 648 (7th Cir. Aug. 23, 2007), 7th-07 § 404.5. Widow’s Benefits Barron v. Apfel......
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Case index
...v. Barnhart, 299 F.3d 1004 (8 th Cir. June 14, 2002), 8 th -02 § 404.3 Deemed Valid Marriage § 404.4 Divorced Spouses Albertson v. Apfel, 247 F.3d 448 (2d Cir. Apr. 27, 2001), 2d-01 Costello v. Astrue , 499 F.3d 648 (7 th Cir. Aug. 23, 2007), 7 th -07 § 404.5 Widow’s Benefits Barron v. Apfe......