Grossman v. Bowen

• Decision Date: 15 January 1988
• Docket Number: No. 86 Civ. 2577 (RLC).,86 Civ. 2577 (RLC).
• Citation: 680 F. Supp. 570
• Parties: Audrey GROSSMAN and Connie Grossman, Plaintiffs, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Southern District of New York

680 F. Supp. 570

Audrey GROSSMAN and Connie Grossman, Plaintiffs, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant.

No. 86 Civ. 2577 (RLC).

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

January 15, 1988.

Mudge Rose Guthrie Alexander & Ferdon, New York City, for plaintiffs; Keith M. Merriwether, III, of counsel.

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for defendant; Diogenes P. Kekatos, Sp. Asst. U.S. Atty., Annette H. Blum, Chief Counsel, Region II, Curtis Axelsen, Asst. Regional Counsel, Office of the General Counsel, U.S. Dept. of Health and Human Services, of counsel.

OPINION

ROBERT L. CARTER, District Judge.

Jack Grossman has not been seen by his family since March 24, 1977. In this action, his former wife, Audrey Grossman, and his daughter, Connie Grossman, appeal from a decision of the Secretary of Health and Human Services ("the Secretary") denying them survivors' insurance benefits based upon Grossman's earnings. The question presented is whether the plaintiffs are entitled to a presumption that Jack Grossman is dead. Both the plaintiffs and the Secretary have moved for an order granting judgment on the pleadings pursuant to Rule 12(c), F.R.Civ.P.¹

Background

In May, 1984, Audrey and Connie Grossman applied for survivors' insurance benefits under Sections 202(d) and (g) of the Social Security Act, 42 U.S.C. §§ 402(d) & (g), which provide for benefits to a child and divorced spouse of a deceased wage earner.²

Ordinarily, a claimant who seeks survivors' benefits must provide the Secretary with evidence of the date and place of the wage earner's death. 20 C.F.R. § 404.720(a) (1987). If proof of death cannot be obtained, the Secretary will assume that the wage earner is dead if the claimant presents the following:

.... Signed statements by those in a position to know and other records which show that the person has been absent from his or her residence for no apparent reason, and has not been heard from, for at least 7 years. If there is no evidence available that he or she is still alive, we will use as the person's date of death either the date he or she left home, the date ending the 7 year period, or some other date depending upon what the evidence shows is the most likely date of death.

20 C.F.R. § 404.721(b) (1987) (emphasis added).

Lacking proof that Grossman was dead, the plaintiffs relied upon the presumption-of-death regulation. Their applications were denied, both initially and upon reconsideration.³ The plaintiffs then requested a hearing to have their claims reviewed.

At the hearing, they introduced signed statements and other records documenting that Grossman had been absent from his residence and not been heard from for over seven years. On December 5, 1985, Administrative Law Judge Irwin M. Portnoy ("the ALJ") ruled that the plaintiffs had not presented convincing evidence that the wage earner was dead and, furthermore, were not entitled to a presumption of death.⁴ In the ALJ's view, "there are numerous ... reasons other than Grossman's death that would provide a reasonable and plausible basis for the wage earner to remain mute." Administrative Record ("A.R.") at 13. The opinion of the ALJ became the final decision of the Secretary when the Appeals Council denied the plaintiffs' request for review.⁵ See 20 C.F.R. § 404.970 (1987). This action ensued. See 42 U.S.C. § 405(g).⁶

In this appeal, the plaintiffs argue that the evidence adduced below is sufficient to raise a presumption of death. The Secretary maintains, however, that the plaintiffs have failed to raise that presumption because they have not excluded the possibility of rational explanations other than death for the wage earner's disappearance. He argues, moreover, that if the presumption did arise, he has rebutted it.

The Administrative Record

The documentary and testimonial evidence adduced below showed the following: Audrey and Jack Grossman were married on October 19, 1948. They settled in Brooklyn, New York, where Grossman had lived all of his life. During sixteen years of marriage, the Grossmans had three children: Edward, born in October, 1949; Andrea, born in 1953; and Connie, born in April, 1962. The record reveals little about the Grossmans' marriage before 1960, when Andrea was killed in a hit-and-run accident at the age of seven. After Andrea's death, Audrey Grossman felt compelled to leave Brooklyn, and the Grossmans moved to Ossining, New York. Grossman continued to commute to his job in Brooklyn. After a year in Ossining, he moved back to Brooklyn and remained there until he disappeared in March, 1977.

For nearly eighteen years, Grossman worked at the Sea Gull Restaurant in Brooklyn. He was a short-order cook and counterman and a member for nearly twenty-five years of the Cooks Countermans Union, AFL Local 325. By all accounts, Grossman loved his work. Audrey testified at the hearing that Grossman "took a lot of pride in his work. He was punctual. He would always get to work early rather than late and stay late rather than leave on time." A.R. at 41. When he had free time, "he went back to work and worked extra.... Everything was connected around that little nucleus of the job." Id. at 63. Edward testified that Grossman "was ... the pillar of the restaurant. He lasted 20 some odd years. He lasted longer than three groups of owners. He lasted through fires.... He always prided himself in going to work.... I never saw him miss a day." Id. at 75. His social life revolved around the restaurant, where virtually all of his friends were employed, and he was regarded as one of the best workers in the union. Id. at 41.

The Grossmans were divorced on December 5, 1964, by a Mexican court that declared that they had incompatible temperaments.⁷ The divorce was amicable. Grossman maintained close ties to his family thereafter. He visited his children regularly and, in accordance with a New York family court order, made child-support payments for Connie. On two occasions, in 1969 and in 1974, Grossman failed to make the required payments. In 1971, Audrey obtained a court order to compel him to meet his child-support obligations. Nonetheless, she later characterized his payments over the years as "generally prompt." Id. at 258.

The record shows that Grossman was faithful in meeting one other recurring financial obligation to his family: the expense of maintaining Andrea's grave. Before he disappeared, Grossman never failed to make these payments. On one of his last visits with Connie, he told Audrey that the day he stopped paying would be the day that he died. Id. at 52, 70, 259.

In 1967, Grossman married Gloria Hopstock, a waitress at the Sea Gull Restaurant. Nine years later, Gloria died after a long struggle with cancer. She was forty-seven years old. Grossman's father had died of cancer in 1964. Both deaths were terrible ordeals for Grossman. See id. at 52-54, 88-89, 257.

On March 21, 1977, Grossman called Audrey and requested to see her and their children for the last time. Audrey testified that she "respected his request, because he'd never asked anything that seemed so urgent before." Id. at 55. The family met for dinner three days later at a restaurant in New Jersey. Grossman, the plaintiffs, Edward, and his wife, Zelda, were present. The location was selected for its convenience for Zelda, who was suffering from terminal spinal cancer and could not travel long distances.⁸ Over dinner, Grossman told his family that he was seeing them for the last time. He said that his reasons would be made clear in a subsequent letter. Id. at 59.

After dinner, Grossman invited his family to accompany him to his room at a nearby motel. Once they were assembled there, he gave each of them a gift: Audrey received flowers, a card, and jewelry; Edward and Zelda received watches; and Connie received a mink stole that had once belonged to Gloria. Grossman called these gifts going-away presents.⁹ Id. at 56-57. In the room was Grossman's luggage, including one piece that contained medicine bottles, some of which bore Gloria's name. Audrey testified that one bottle appeared to contain morphine. Id. at 58. In the motel room, Grossman told her that "this is what's keeping me going," and then gestured by raising both of his hands. Id.

Audrey further testified that Grossman "didn't quite look the same" that evening. Id. at 56. He had grown a beard. "His face was drawn and he had ... a little tic in the cheek.... I didn't know what it was then." Id. Edward testified that Grossman looked "small ... drawn and thin.... Not enough to make me think he was sick, but enough to make me think that something was wrong. Also, he had this ... nervous twitching in his face and he told us it was tic douloureaux sic." Id. at 80.

The family pleaded with Grossman to explain what was wrong, but he refused, id. at 59, and eventually they left him. Later that evening, Edward phoned his father and implored him to spend the night at his house. The attempt failed. Id. at 81-82.

Five days later, Audrey received a ninepage handwritten letter from Grossman dated March 25, 1977, and postmarked Johnstown, Pennsylvania. Edward's address had been given as the return address. In the letter, Grossman revealed his belief that he was dying:

My Darling Audrey,

.... Well, here is my sad story. It started a few months ago. The first signs were numbness in my fingers. I went to a local doctor in Brighton and he diagnosed it as arthritis. When the second symptoms appeared I really got worried. Tingeling sic on my left side. (Pardon the spelling as I am half bombed.) Following the tingeling sic there was slight paralysis on my left side. That was enough to send me to a specialist. (Now the pain in my face becomes secondary.) He put me through every kind of test including a brain scan. When the results of the tests were concluded, they were not favorable. Do you recall what my father died of? It was a malignant brain tumor. All

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