Kienutske v. Barnhart
| Decision Date | 30 November 2004 |
| Docket Number | Civil Action No. 03-73866. |
| Citation | 375 F.Supp.2d 556 |
| Parties | Tamara KIENUTSKE, for Jacob Dale Mosley, Plaintiff v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Patrick J. Marutiak, Owosso, MI, for Plaintiff.
Francis L. Zebot, U.S. Attorney's Office, Detroit, MI, Defendant.
ORDER ADOPTING THE MAGISTRATE'S REPORT AND RECOMMENDATION [11], REVERSING THE DECISION OF THE COMMISSIONER OF SOCIAL SECURITY, AND REMANDING FOR AN AWARD OF BENEFITS
Before the Court are competing motions for summary judgment [docket entries 8 & 9] by the parties. On October 21, 2004, the magistrate filed a Report and Recommendation (R&R), recommending that this Court grant Plaintiff's motion and remand the case for an award of benefits or, in the alternative, remand for further consideration of after-acquired evidence. No objections to the R&R have been filed.
The issue in this case is whether there is sufficient evidence to support the finding of the Administrative Law Judge (ALJ) that Jacob Dale Mosley, a minor, is not the child of Rodney Mosley, the deceased wage earner. This Court is in agreement with the magistrate that there is satisfactory evidence that Jacob Dale Mosley is Rodney Mosley's child and that the magistrate's finding is not supported by sufficient evidence.
Accordingly, the Court ADOPTS the R&R [11] as the findings and conclusions of the Court. Plaintiff's motion for summary judgment [8] is GRANTED, and Defendant's motion for summary judgment [9] is DENIED. The decision of the Commissioner of Social Security is REVERSED pursuant to 42 U.S.C. § 405(g), and the case is hereby REMANDED to the Commissioner of Social Security for an award of benefits under Title II of the Social Security Act.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION1
Plaintiff Tamara Kienutske brings this action on behalf of her infant son, Jacob Dale Mosley, under 42 U.S.C. § 405(g), challenging a final decision of Defendant Commissioner denying Jacob Dale Mosley Title II Child Survivors Benefits on the record wage earner Rodney D. Mosley. Both parties have filed summary judgment motions which have been referred for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). I recommend that Defendant's Motion for Summary Judgment be denied, that Plaintiff's Motion for Summary Judgment be granted, and that the case be remanded for an award of benefits. In the alternative, I recommend that the case be remanded for further proceedings pursuant to sentence six of 42 U.S.C. § 405(g), with this Court retaining jurisdiction.
On December 1, 2000, Plaintiff filed an application under Title II of the Social Security Act 42 (Tr. 19-21, 26-27). After denial of her claim, Plaintiff filed a timely request for an administrative hearing, conducted on September 17, 2002 in Lansing, Michigan before Administrative Law Judge (ALJ) B. Lloyd Blair. Plaintiff, represented by attorney Sarah Bouck, testified. (Tr. 89-96). Plaintiff's mother, Sharon Kieutsky, also testified (96-98). ALJ Blair found that Plaintiff was not entitled to Child Survivors Benefits because Jacob Dale Mosley "could not found to be the child of Rodney D. Mosley under Sections 216(h)(2)(A)2 and 216(h)(3)(C) of the Social Security Act (Tr. 13)."
On August 15, 2003 the Appeals Council denied review (Tr. 4-6). Plaintiff filed for judicial review of the final decision on September 29, 2003.
Rodney D. Mosley, wage earner, died on July 7, 2000 (Tr. 79). On November 4, 2000, Tamara Kienutske gave birth to Jacob D. Mosley (Tr. 55). Ms. Kienutske and Mr. Mosley began dating in November of 1999 and according to Ms. Kienutske's testimony, he began living with her at her parents' house "six days out of the week" beginning in December of 1999 (Tr. 91). Ms. Kienutske reported, however, that Mr. Mosley also maintained an apartment in Novi, Michigan which he shared with a roommate (Tr. 91-92). According to Ms. Kienutske, he continued to maintain the Novi residence address to be closer to his physicians (Tr. 92). Ms. Kienutske reported that Mr. Mosley worked for General Motors in Warren in November 1999, but by the time she discovered her pregnancy in April of 2000, Mr. Mosley had ceased work and was receiving disability benefits (Tr. 90, 93).
Ms. Kienutske testified that Mr. Mosley took her to Tennessee to meet his parents, financing the entire trip (Tr. 93-94). She reported that Mr. Mosley regularly bought groceries for Ms. Kienutske and her parents (Tr. 94). She reported that Mr. Mosley borrowed money from her mother so Ms. Kienutske and he could set up an apartment together in Owosso. (Tr. 94).3 In addition to borrowing money from her mother for the deposit for their apartment, Ms. Kienutske reported that Mr. Mosley bought a crib, stroller, and a car seat at a yard sale in anticipation of the baby's birth (Tr. 94).
Ms. Kienutske testified that she and Mr. Mosley moved into the Owosso apartment around July 1, 2000 (Tr. 94-95). She testified that she found him dead in the living room of their apartment when she came home from work on July 7, 2000 (Tr. 95). She testified that at the time of Jacob's birth, she wanted to list Rodney Mosley as the child's father on the birth certificate but hospital personnel informed her that in order to do so, his signature would be required (Tr. 95). At the hearing Ms. Kienutske testified that there was no possibility that anyone but Mr. Mosley could be Jacob's father (Tr. 93).
Sharon Kienutske, Tamara Kienutske's mother, also testified that Rodney Mosley regularly bought food for her household and assisted her at her job delivering newspapers (Tr. 97-98). She reported that Mr. Mosley acknowledged his belief to her that he fathered the child Tamara was carrying (Tr. 97).
At the hearing's conclusion, Plaintiff's attorney, Sarah Bouck, informed ALJ Blair that "there was quite an attempt made to track down a blood sample".... "[I]t turned out that there is none." (Tr. 99). Ms. Bouck reported that Korey Mosley, Mr. Mosley's son from a previous relationship, indicated that he would cooperate in providing a blood sample (Tr. 99). Ms. Bouck requested that the court hold the record open "if the court feels that [it] is necessary for it's decision" while the blood tests were being performed. ALJ Blair stated that he had not "made up [his] mind as to whether or not [he would] need [blood samples to complete his decision]." He indicated that "it couldn't hurt, certainly." (Tr. 99). Due evidently to Plaintiff's inability to pay for the blood test, Ms. Bouck asked the ALJ if Social Security funds could be used (Tr. 99). The ALJ replied that funding was "a possibility," adding, 4 Ms. Bouck requested ninety days to obtain blood tests (Tr. 100). ALJ Blair indicated that he would give Plaintiff until December 17, 2002 to perform blood tests (Tr. 100).
However, following a referral for blood/paternity testing from the Office of Hearings and Appeals, the Disability Determination Service (DDS) stated that paternity testing was impossible (Tr. 69-71):
(Tr. 71).
ALJ Blair denied benefits to Plaintiff on November 21, 2002 (Tr. 8). He found that Plaintiff failed to establish that Rodney Mosley fathered Jacob Mosley under the criteria mandated by the Social Security Administration for determining parentage (Tr. 14).
First, using the parameters of § 216(h)(2)(A), ALJ Blair held that a finding of parentage "must be based upon the law that, in determining inheritance rights to intestate personal property, would be applied by the courts of the state where the insured individual was domiciled at the time of his death" (Tr. 12). The ALJ cited The Michigan Probate Code, MCLA § 700.111(4),5 which indicates for the purposes of intestate succession for a child born out of wedlock, an individual can be considered the natural father if he signs a written acknowledgment of paternity, requests along with the mother to be added to the child's birth certificate, or the man and child have a "mutually acknowledged relationship which began before the age of 18...." (Tr. 13).
Second, the ALJ cited § 216(h)(2)(B), noting that Mr. Mosley and Ms. Kienutske never married or had a marriage ceremony, either of which would have determined Jacob Mosley's paternity under the Social Security Act (Tr. 12, 13). Third, stating that Plaintiff had failed both prongs of the two-part test of § 216(h)(3)(C), the ALJ ruled that he could not find Plaintiff Jacob Mosley to be Rodney Mosley's son because the Plaintiff had not submitted "satisfactory evidence" indicating parentage, nor had she established that Plaintiff was "either living with or supporting" Plaintiff at the time of the alleged father's death. (Tr. 13, 14).
The ALJ discounted several affidavits submitted by family and friends which indicated that Rodney Mosley had acknowledged that he fathered Jacob as not "sufficiently conclusive to establish paternity." (Tr. 12). Moreover, the ALJ held that prenatal medical records listing Rodney Mosley as the father of Jacob were "only based on subjective information given to them" (Tr. 13). He pointed out that an affidavit prepared by Rodney Mosley's mother indicated that Mosley told his mother she was going to be a grandmother again, but that the affidavit "never said directly that [Tamara Kienutske] was the mother of his unborn child." (Tr. 13).
On March 5, 2003, after Plaintiff filed her petition to the Appeals Council...
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