Maricelys S. v. Saul

• Decision Date: 09 July 2019
• Docket Number: C.A. No. 18-479WES
• Parties: MARICELYS S., Plaintiff, v. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — District of Rhode Island

MARICELYS S., Plaintiff,
v.
ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant.

C.A. No. 18-479WES

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

July 9, 2019

REPORT AND RECOMMENDATION

PATRICIA A. SULLIVAN, United States Magistrate Judge.

Plaintiff Maricelys S. brings this action on behalf of her daughter, R.M., to challenge a decision of the Commissioner of Social Security denying R.M.'s application for surviving child insurance benefits under the Social Security Act (the "Act"). The case turns on whether R.M. is the child of a deceased wage earner, Roger M. ("the Decedent"). R.M.'s claim was complicated by Plaintiff's marriage to another man throughout the period in issue, although the administrative law judge ("ALJ") was satisfied that Plaintiff's husband was incarcerated, did not have conjugal rights and could not have been R.M.'s father, thereby rebutting the presumption of legitimacy. Nevertheless, finding that "it was not clearly established that [the Decedent] acknowledged in writing that the claimant was his child," Tr. 14 n.3, the ALJ answered in the negative the question whether R.M. was the Decedent's daughter. After that answer became the final decision of the Commissioner, Plaintiff brought her appeal to this Court. For the reasons that follow, I recommend that the matter be remanded for further proceedings.

I. Background

A. Facts

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On April 15, 2015, Plaintiff, acting on behalf of her minor child, R.M., applied for Social Security benefits (child insurance and lump sum death benefits) based on R.M.'s status as the child of the Decedent, a deceased wage earner who had died on March 9, 2015, shortly after he was released from incarceration at the Rhode Island Adult Correctional Institutions ("ACI"). Tr. 26. Plaintiff's older children (twins) were approved for benefits as the children of the Decedent because he had claimed them as dependents on a 2011 tax return, which was procured and reviewed by a District Office representative of the Social Security Administration ("SSA"). Tr. 46. However, R.M. was not born at the time of the filing of the tax return. Tr. 188.

To support R.M.'s claim that the Decedent was her father, Plaintiff presented many handwritten cards and letters, which she claimed the Decedent had mailed to her from the ACI, where he was incarcerated beginning sometime after R.M. was born. Tr. 45, 84-100, 129-85. These cards and letters include repeated references to the Decedent as the loving father of R.M. and to R.M. as the beloved child of the Decedent. E.g., Tr. 127 (listing references). Plaintiff also presented envelopes with postmarks and some with what purports to be an ACI stamp. E.g., Tr. 123-24, 142-43, 171-72, 185. She contends that these establish that the cards and letters were mailed to her from the ACI while the Decedent was confined there. It is not disputed that the handwriting on all the cards, letters and envelopes appears to be the same; all include the liberal and distinctive use of circles and hearts, particularly to dot the letter "i." Plaintiff testified that this handwriting is not hers but is that of the Decedent. Tr. 202, 215. She also submitted an affidavit purporting to be from the Decedent's mother averring that the handwriting on certain "attached papers" is that of her son.¹ Tr. 120-20A. The evidence further establishes that the Decedent was in contemporaneous contact with his mother in that he returned to live with her

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after his release from the ACI, permitting the inference that she was familiar with her son's handwriting. Tr. 196. The Commissioner does not dispute that the references to R.M. in the cards and letters amount to an unambiguous acknowledgment that the Decedent was R.M.'s father.

In addition to the cards and letters and the averments that they were written by the Decedent, Plaintiff relies on other evidence. First, she proffered an affidavit purporting to be from the Decedent's father averring that his son had three children, including R.M. Tr. 43. However, this affidavit states - incorrectly - that R.M. was born in Pennsylvania and that the Decedent died in Pennsylvania; in addition, it refers to the putative grandfather by a different first name from the name associated with his Social Security number. Tr. 43, 213. Plaintiff's testimony at the ALJ hearing casts further doubt over the putative grandfather's reliability - she said that the grandfather lives in Puerto Rico and has never seen R.M. Tr. 206-07. Additionally, Plaintiff herself could not explain the confusion over the putative grandfather's name because she had such limited contact with him. Tr. 213-14. Second, Plaintiff submitted an email purporting to be from the Decedent's mother stating that R.M. is her grandchild; however, the email is unsigned and sent from an email address bearing no discernable relationship to its putative author. Tr. 55. Third, Plaintiff submitted an unofficial "certificate of birth." Tr. 34-35. However, she acknowledged that she filled it in herself, Tr. 202, and does not dispute the ALJ's failure to credit this document as evidence of the Decedent's relationship with R.M. See Tr. 24 (discounting evidence of birth record because not completed by Decedent and not official birth certificate).

Before this Court, Plaintiff's focus is on the cards and letters that she claims were sent to her by the Decedent from the ACI. She argues that this evidence sustains her burden of

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establishing that, "in the case of a deceased individual[,] . . . such insured individual . . . had acknowledged in writing that the applicant is his or her son or daughter," which is one of the methods set out in the Act to prove paternity. 42 U.S.C. § 416(h)(3)(C)(i)(I).

B. Procedural History

During the administrative processing of the claim, a District Office SSA representative identified only as "S. Roy" compared a letter proffered by Plaintiff (described as the "love letter")² to handwriting on "the religious cards from [the Decedent's] funeral,"³ to an exemplar of the Decedent's handwriting from his 2011 tax return, and to exemplars from various Social Security filings that the Decedent had made, including a pain questionnaire form and a "827S" form he had submitted. Tr. 44.⁴ Based on this comparison, S. Roy concluded that the handwriting on the "love letter," particularly the letter "R" in the signature, is similar to that on the funeral cards, but is not similar to the handwriting on the Decedent's 2011 tax return or on his Social Security forms. Id. Accordingly, S. Roy prepared a brief report and concluded that "the validity of the love letter is called into question."⁵ Id. None of the exemplars that S. Roy used to make this comparison are now in the record. While Plaintiff plainly once had access to the original love letter and to the funeral cards, it appears they had been misplaced by the time of

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the ALJ's hearing so that the ALJ never saw them. It also seems clear that neither the ALJ nor Plaintiff ever had access to the Decedent's 2011 tax return or to the Social Security filings on which S. Roy relied as exemplars of the Decedent's handwriting.

After Plaintiff's claim was denied administratively, she testified at the ALJ's hearing.⁶ She said that the Decedent had been present at R.M.'s birth but was not listed on the official birth certificate because, as clarified by her attorney, Plaintiff was married to someone else. Tr. 199-200. Plaintiff denied that she wrote the cards and letters herself or that someone other than the Decedent wrote them at her request. Tr. 201-02. She also described her estrangement from all members of the Decedent's family, including that she did not attend his funeral. Tr. 206-08, 214, 216.

Issued almost four months after the hearing, the ALJ's decision consists of a lengthy exposition quoting from various statutes and regulations, followed by a brief evaluation of the evidence and the rationale for his finding that the Decedent had not "clearly acknowledged . . . in writing" that he was the father of R.M. Tr. 24. Most of the ALJ's analysis is set out in two lengthy paragraphs that are focused on the state law of paternity as adopted in Rhode Island, which is incorporated by reference into the Act by 42 U.S.C. § 416(h)(2)(A). Tr. 23-24. This portion of the decision emphasizes that, under Rhode Island law, paternity generally must be established by clear and convincing evidence, as well as that "the undersigned concludes that the record does not contain clear and convincing evidence to establish [that the Decedent was R.M.'s father]." Tr. 23 (emphasis in original). The ALJ also found that the record contained no self-authenticating document competent to prove paternity under state law (such as an official birth certificate). Tr. 24. Plaintiff has not challenged this portion of the ALJ's decision.

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Next the ALJ's decision discusses the cards and letters submitted by Plaintiff. The ALJ notes that "other documents submitted by the claimant's mother . . . purportedly from [the Decedent] reference at times . . . [R.M.] as his child[] . . ., despite [Plaintiff's] testimony that she never wrote any letter pretending to be the [Decedent] and his mother indicated that several documents were in his handwriting." Id. The ALJ juxtaposes this observation with the S. Roy report, finding that, "there were inconsistencies with respect thereto which call such evidence in question," and, "[t]hese inconsistencies cannot be ignored by the undersigned." Id. The decision does not clarify what are the S. Roy "inconsistencies" that the ALJ deemed dispositive or how any particular "inconsistency" impacted his assessment of Plaintiff's proffer of the cards and letters.

Returning to the applicable law, the ALJ shifted his analysis to the alternative method for establishing paternity in 42 U.S.C. § 416(h)(3)(C)(i)(I): "such insured individual . . . had acknowledged in writing that the applicant is her or her son or...