DiGiovanni v. Heckler, 81 CV 1546(ERN).

• Decision Date: 09 September 1983
• Docket Number: No. 81 CV 1546(ERN).,81 CV 1546(ERN).
• Citation: 571 F. Supp. 342
• Parties: Josephine DiGIOVANNI, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Eastern District of New York

571 F. Supp. 342

Josephine DiGIOVANNI, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.

No. 81 CV 1546(ERN).

United States District Court, E.D. New York.

September 9, 1983.

David R. Walton, Brooklyn, N.Y., for plaintiff.

Raymond J. Dearie, U.S. Atty., E.D.N.Y. by Ruth V. Simon, Asst. U.S. Atty., Brooklyn, N.Y., for defendant.

MEMORANDUM OF DECISION AND ORDER

NEAHER, District Judge.

Plaintiff brought this action to review the defendant Secretary's final determination denying her application for widow's insurance benefits as provided for in 42 U.S.C. §§ 402(e) and 416(c). That determination was based upon a decision made by an administrative law judge (ALJ) following an evidentiary hearing, which was later sustained by the Appeals Council after reviewing a memorandum of law filed on plaintiff's behalf by an attorney.

The facts developed before the ALJ are not in dispute. Plaintiff married Joe (Jasper or Gaspar) DiGiovanni in Alexandria, Louisiana, on October 22, 1943, where he was stationed on military service. Both had resided in New York City and each had prior marriages but denied it in their application for a marriage license. Plaintiff had been married to Santo Riggi in Staten Island, New York, on September 23, 1934, but was later granted a divorce in that jurisdiction which became final on October 22, 1943, the day she married DiGiovanni in Louisiana. DiGiovanni, however, was merely separated at that time from his wife, nee Vincenza (Nancy) Ambrosino, whom he had married on June 16, 1934, and who bore him two daughters prior to 1940. Tr. 135.¹ Records of the Supreme Court, Kings County, New York, confirm that Vincenza Ambrosino was granted a legal separation from DiGiovanni on May 4, 1942, and was awarded custody of the children and alimony. Tr. 151. No record was found of any divorce. Moreover, in applying for Social Security disability benefits on June 23, 1965, DiGiovanni stated that he had been married to "Nancy Ambrosino" in 1934 and that they had separated "about 1938" but there was "no divorce." Tr. 148-49.

Although Nancy DiGiovanni is not a formal party to this proceeding, it was her action in applying for wife's insurance benefits on May 12, 1977, that ultimately precipitated the controversy. As a result of that application she has been receiving wife's and subsequently widow's benefits by reason of Joe DiGiovanni's death on October 7, 1979. Tr. 32. Two and a half years later, on November 19, 1979, Josephine DiGiovanni, plaintiff here, also filed an application for widow's insurance benefits because of his death. Tr. 86. She was denied benefits, however, on the ground that whether she was a widow or a "deemed" widow as defined by Sections 216(h)(1)(A) or (1)(B) of the Social Security Act, 42 U.S.C. § 416(h)(1)(A) or (B), she could not qualify for benefits because of Nancy DiGiovanni's status as a widow who had prior lawful entitlement to such benefits.

The Court has carefully reviewed the evidence contained in the administrative record and concludes that it fully supports the Secretary's decision denying benefits to the decedent's second wife, Josephine DiGiovanni. The...