Thomas v. Astrue

• Decision Date: 09 December 2009
• Docket Number: No. 03 Civ. 3980(RJH)(DF).,03 Civ. 3980(RJH)(DF).
• Citation: 674 F.Supp.2d 507
• Parties: Kim THOMAS o/b/o N.T., Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security,<SMALL><SUP>1</SUP></SMALL> Defendant.
• Court: U.S. District Court — Southern District of New York

674 F.Supp.2d 507

Kim THOMAS o/b/o N.T., Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security,¹ Defendant.

No. 03 Civ. 3980(RJH)(DF).

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

December 9, 2009.

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COPYRIGHT MATERIAL OMITTED

Kim Thomas, Covington, GA, pro se.

Leslie A. Ramirez-Fisher, United States Attorney's Office, Southern District of New York, New York, NY, for Defendant.

MEMORANDUM OPINION AND ORDER

RICHARD J. HOLWELL, District Judge.

Plaintiff Kim Thomas brings this action on behalf of her daughter, N.T., to challenge a decision of the Commissioner of Social Security denying N.T.'s application for surviving child insurance benefits under the Social Security Act (the "Act"). The case turns on whether N.T. is the child of deceased wage earner Ronald Van Thomas ("Thomas"), a question that an administrative law judge ("ALJ") answered in the negative in a decision that later became the final decision of the Commissioner. Magistrate Judge Debra Freeman issued a comprehensive report and recommendation (the "Report"), familiarity with which is presumed, recommending that the Court reverse the Commissioner's decision and remand for benefits calculation. The Commissioner filed timely objections to the report on two grounds: (1) contrary to the Report, substantial evidence supported the ALJ's finding that a DNA test showing a 99.69% probability of paternity was not clear and convincing evidence that Thomas was N.T.'s father; and (2) the Report erred in failing to consider the ALJ's conclusion that plaintiff did not rebut the legal presumption that N.T. was the biological child of a different man, plaintiff's ex-husband. Having conducted a de novo review of the relevant portions of the Report, the Court adopts Judge Freeman's conclusions and remands to the Commissioner for benefits calculation.

DISCUSSION

I. Standards of Review

A. Review of the Magistrate Judge's Report

A district court may designate a magistrate to hear certain motions and to submit a report and recommendation as to how the Court should resolve the motions. See 28 U.S.C. § 636(b)(1)(2005). Within ten days of service of the recommendation, any party may file written objections. Id. In evaluating the magistrate's report, the court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

The court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.; see, e.g., Eisenberg v. New England Motor Freight, Inc., 564 F.Supp.2d 224, 226-27 (S.D.N.Y.2008). "If, however, the party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Silva v. Peninsula Hotel, 509 F.Supp.2d 364, 366 (S.D.N.Y.2007) (citations omitted). Where a party makes "merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition," the court reviews for clear error. Edwards v. Fischer, 414 F.Supp.2d 342, 346-47 (S.D.N.Y.2006) (internal quotation marks and citations omitted). Parties may not "attempt to relitigate the entire content of the hearing ... [and] are not to be afforded a `second bite at the apple....'" Camardo v. General Motors Hourly-Rate Employees Pension Plan, 806 F.Supp. 380, 382 (W.D.N.Y.1992).

B. Review of the ALJ Decision

A federal district court reviewing and ALJ decision in a social security appeal looks to whether the correct legal standards were applied and whether the agency's factual determinations are supported by "substantial evidence." Acierno v. Barnhart, 475 F.3d 77, 80-81 (2d Cir. 2007) (citing Pollard v. Halter, 377 F.3d 183, 188 (2d Cir.2004)); see, e.g., Jordan v. Comm'r of Soc. Sec., 194 Fed.Appx. 59, 61 (2d Cir.2006) (citing Urtz v. Callahan, 965 F.Supp. 324, 326 (N.D.N.Y.1997)). Substantial evidence is "more than a mere scintilla" of evidence. Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.1996) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Jordan, 194 Fed.Appx. at 61 (quoting Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.1988)). "Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, [the Court] will not substitute [its] judgment for that of the Commissioner." Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002).

Review of the ALJ's legal conclusions is de novo. Pollard, 377 F.3d at 188; see also Rivera v. Sullivan, 771 F.Supp. 1339, 1351 (S.D.N.Y.1991) (observing that "with respect to ... legal conclusions, or more generally ... application of legal principles, judicial review is de novo").

II. Plaintiff is permitted to proceed pro se on behalf of her child

Before reaching the merits, the Court considers whether Ms. Thomas may bring this action pro se on behalf of her daughter. Although a litigant may represent herself in federal court, Machadio v. Apfel, 276 F.3d 103, 106 (2d Cir.2002), "a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child." Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.1990). A district court has a duty to raise this issue sua sponte. Berrios v. N.Y. City Hous. Auth., 564 F.3d 130, 133 (2d Cir.2009) (citing Wenger v. Canastota Cent. School Dist., 146 F.3d 123, 125 (2d Cir.1998), overruled on other grounds by Winkelman v. Parma City School Dist., 550 U.S. 516, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007)). However, if a district court, after an "appropriate inquiry in to the particular circumstances of the matter at hand," determines that the non-attorney parent has a "significant stake in the outcome of the litigation," a parent may bring an action in federal court on behalf of their child without an attorney. See Machadio, 276 F.3d at 107. Here, the Social Security Administration would most likely pay N.T.'s benefits to Ms. Thomas as N.T.'s "representative payee." See id. at 106 (holding that as the natural parent with custody, plaintiff was most likely the one that would receive Social Security benefits for child, and could therefore represent the child in court). Any money received by N.T. would lighten Ms. Thomas's burden of caring for N.T. and increase the availability of money for other expenses in the family household. The Court therefore finds that the plaintiff has a sufficient interest to represent her daughter pro se in federal court.

III. The ALJ's decision is not supported by substantial evidence

The Commissioner argues Judge Freeman erred in finding a lack of substantial evidence for the ALJ's conclusion that the DNA test result did not constitute clear and convincing evidence of Thomas's paternity. The Commissioner contends that evidence of deficiencies in the chain of custody of the DNA samples amply supported the ALJ's determination. This argument, however, presupposes that the ALJ in fact based his decision on the supposed gaps in the chain of custody, a proposition that the text of the decision calls into doubt. Before considering the chain of custody, the ALJ found that the DNA test was invalid because it was not performed during Thomas's lifetime. (R. at 124.) Defendant concedes that this was legal error; New York law does recognize posthumous DNA tests as "clear and convincing" evidence of paternity in circumstances such as these. (See Report at 522; Def. Obj. at 5 n. 3.) From the text of the ALJ decision, it is impossible for the Court to conclude that, but for this legal error, the ALJ still would have found the DNA test to be of "[in]sufficient probative value to establish paternity." (R. at 124.) The decision contains only one paragraph on the issue, which first finds the test inadmissible as posthumous, and second, as something of an afterthought, opines that the DNA samples' chain of custody is infirm. Had the ALJ not erred in his application of New York law, he may well have found the DNA test to be "clear and convincing" evidence despite concerns over the chain of custody.

Even standing alone, however, the ALJ's two sentences of findings about gaps in the chain of custody are insufficient to support the decision that N.T. was not Thomas's child. The briefing record contains much discussion about the test's admissibility—specifically, whether it could be admitted as a lab-certified DNA test under N.Y. C.P.L.R. § 4518(d)-(e). But defendant rightly points out in its objections that the salient issue concerning the chain of custody is "not one of admissibility, but of the weight to be accorded the [DNA] evidence." (Def. Obj. at 5.) The ALJ could consider the DNA test whether or not it was admissible under New York evidence rules. See 42 U.S.C. § 405(b)(1)(2008). The question is whether the DNA test is sufficiently persuasive to constitute "clear and convincing" evidence of paternity, despite any problems in the chain of custody.

Defendant, having recognized that the issue is not one of formal admissibility, nonetheless submits a formalistic argument: that the ALJ's decision to disregard the DNA test should be upheld because (1) Micro Diagnostics (the testing laboratory) did not submit a chain of custody affidavit describing the handling of plaintiff's and N.T.'s DNA samples; and (2) the New Jersey Toxicology Laboratory submitted an incomplete chain of custody letter that failed to explain how it acquired and stored Thomas's sample. (Def. Obj. at 6.) This argument is formalistic because it questions the propriety of the evidence without actually challenging the persuasive force of the test result showing a 99.69% probability of paternity. The evidence that plaintiff and N.T. had their samples taken at a Micro...