Scheuering v . SSA CV-02-418-M 07/25/03
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Gabriela Scheuering for
Brittany Scheuering,
Claimant
v. Civil N o . 02-418-M
Opinion N o . 2003 DNH 130
Jo Anne B . Barnhart,
Commissioner, Social
Security Administration,
Respondent
O R D E R
Pursuant to 42 U.S.C. § 405(g), Gabriela Scheuering for
Brittany Scheuering moves to reverse the Commissioner’s decision
to award Social Security child’s insurance benefits, under
42
U.S.C. § 402(d), prospectively only, from the date of Brittany’s
application, and the Commissioner’s decision not to nullify a
1993 award of child’s insurance benefits to Myra Manalo, the
stepdaughter of Brittany’s deceased father, Kevin Robertson. The
Commissioner, in turn, moves for an order affirming her decision.
For the reasons given below, the decision of the Appeals Council
is affirmed, subject to certain modifications.
Standard of Review
The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power to enter, upon
the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without
remanding the cause for a rehearing.
42 U.S.C. § 405(g). The court “must uphold a denial of social
security disability benefits unless ‘the [Commissioner] has
committed a legal or factual error in evaluating a particular
claim.’” Manso-Pizarro v . Sec’y of HHS,
76 F.3d 1 5 , 16 (1st Cir.
1996) (quoting Sullivan v . Hudson,
490 U.S. 8 7 7 , 885 (1989)).
Background
On April 8 , 1992, Kevin J. Robertson filed an application
for Social Security disability insurance benefits in Pontiac,
Michigan. (Administrative Transcript (“Tr.”) at 128-31.) In his
application, he listed Filipinas Manalo as his wife (stating the
date and location of their wedding) and listed two children, Myra
2
Manalo and Catherine Robertson.1 (Tr. at 129.) Two days later,
Kevin filed an application for child’s insurance benefits on
behalf of Myra and Catherine. (Tr. at 132-34.)
Kevin Robertson died on September 2 0 , 1992. (Tr. at 97.)
His death certificate listed Filipinas as his surviving spouse.
(Tr. at 95.) A “Statement of Death by Funeral Director”
completed on September 2 3 , 1992, listed Filipinas as Kevin’s
widow.2 Kevin’s obituary listed three daughters, Myra,
Catherine, and Brittney Robertson.3 (Tr. at 97.)
From the date of Kevin’s death, child’s insurance benefits
were paid to Myra and Catherine. Necessarily, SSA determined
that Myra was Kevin’s child, within the meaning of the Social
1
All agree that Myra is not Kevin’s biological daughter
and, thus, her eligibility for child’s insurance benefits rests
on her status as Kevin’s stepdaughter. Because the benefit at
issue here is available equally to both biological children and
stepchildren, the term “daughter” and “stepdaughter” are used
interchangeably throughout this order.
2
“Statement of Death by Funeral Director” is a form
document promulgated by the Social Security Administration
(“SSA”).
3
There is no dispute that the Brittney Robertson listed in
the obituary is Brittany Scheuering, claimant in this case.
3
Security Act. (Tr. at 6.) That determination was made in 1993.
(See J t . Statement of Mat. Facts at 5 ; T r . at 127.) However,
the determination itself is not documented in the record.
One February 3 , 1998, some five years after Myra was
determined eligible for child’s insurance benefits, a claim for
the same type of benefits was also made on behalf of Brittany
Scheuering. (Tr. at 61-63.) That claim was allowed, and, as a
consequence, future benefits were split three ways, between Myra,
Catherine, and Brittany. (Tr. at 64.) Gabriela Scheuering, on
behalf of Brittany (her daughter), challenged SSA’s decision,
claiming that Myra, who had been receiving benefits since 1993,
was not Kevin’s stepdaughter, and not entitled to any benefits,
because Kevin never married Myra’s mother, Filipinas. By letter
dated July 2 0 , 1999, SSA ruled against claimant, finding that she
had “submitted no substantial evidence that the stepdaughter
[Myra] is not the stepchild of the worker [Kevin].” (Tr. at 86.)
Claimant requested a hearing before an ALJ, which was held
on September 4 , 2001, in Manchester, New Hampshire. Prior to
that hearing, on August 1 5 , 2001, the ALJ made Filipinas and Myra
4
(who were then living in Michigan) parties to the case and sent
them notices of the hearing. They did not appear. In an order
dated January 2 5 , 2002, the ALJ ruled in claimant’s favor. (Tr.
at 14-17.) Among other things, the ALJ found that “Myra Manalo
is not the stepchild of Kevin Robertson based upon the lack of
substantial evidence verifying a valid ceremonial marriage
between Filipinas Manalo and Kevin Robertson.” (Tr. at 17.)
Accordingly, the ALJ ruled:
[T]he claimant is entitled to surviving child
disability insurance benefits based upon the earnings
record of her father, Kevin John Robertson, SSN
, commencing on September 3 0 , 1992, under Section
202(d) of the Social Security Act. It is further the
decision of the Administrative Law Judge that Myra
Manalo is not entitled to receive surviving child
disability insurance benefits under Section 202(d) of
the Social Security Act. Another component of the
Social Security Administration will determine the
amounts owed to the claimant based upon her application
date as well as any possible overpayments made for the
benefit of Myra Manalo.
(Tr. at 17.)
Shortly after the ALJ issued his decision, SSA’s Great Lakes
Program Center (“GLPC”), which, presumably, administered Myra’s
benefits, wrote to the Office of Hearings and Appeals and
5
identified several perceived problems with the ALJ’s decision.
(Tr. at 126-27.) GLPC pointed out that: (1) the ALJ’s decision
deprived Myra of benefits without due process of law; and (2) the
ALJ reopened the 1993 determination that Myra was entitled to
benefits without first finding that the 1993 determination had
been obtained by fraud or similar fault, as required by 20 C.F.R.
§ 404.988(c)(1).
By letter dated May 2 3 , 2002, the Appeals Council informed
the Scheuerings that it had “decided to reopen the hearing
decision issued on January 2 5 , 2002, . . . because a revised
decision is necessary.” (Tr. at 8.) In the body of a decision
dated July 1 2 , 2002, the Appeals Council explained:
If Myra Manalo is not the biological child of the
deceased wage earner, then, based on Exhibits 16 and
1 7 , she is either his stepchild based on secondary
evidence of a valid ceremonial marriage between her
mother and the deceased wage earner in accordance with
20 C.F.R. § 404.725(c) or based on secondary evidence
of a deemed valid marriage between them in accordance
with 20 C.F.R. § 404.727(c), due to failure in
recordation of the marriage. Therefore, the
entitlement of Myra Manalo to child’s insurance
benefits on the record of the then disabled wage earner
effective January 1991 which terminated effective May
1999 cannot be disturbed.
6
(Tr. at 6.) The Appeals Council further explained that
Brittany’s “entitlement to benefits . . . may be retroactive for
no more than six months prior to January 1998 . . . .” (Tr. at
6.) The Appeals Council also made the following relevant
findings:
3. There is no legal or evidentiary basis to disturb
the entitlement of these other individuals [Myra
and Catherine] to benefits on the record of the
deceased wage earner.
4. Brittany Scheu[e]ring is entitled to payment of
zero benefits for the months, prior to January
1998, for which she is entitled to child’s
insurance benefits on the record of the deceased
wage earner, pursuant to section 202(j)(1), the
family maximum provision of the Social Security
Act.
5. The benefit rate of Brittany Scheu[e]ring must be
calculated effective January 1998 through May 199
based on there being three entitled beneficiaries
on the record of the deceased wage earner.
(Tr. at 7.) Under the heading “Decision,” the Appeals Council
stated:
It is the decision of the Appeals Council that, under
Section 202(j)(1) of the Social Security Act, payment
of child’s insurance benefits to the claimant for
Brittany Scheu[e]ring is only due effective January
1998, the month in which her application was
effectively filed, and continuing.
7
(Tr. at 7.) The Appeals Council’s decision effectively affirmed
the ALJ’s award of prospective benefits to Brittany, but reversed
his award of retroactive benefits, and reversed his nullification
of the 1993 award of benefits to Myra. This appeal followed.
Discussion
Claimant moves to reverse the decision of the Appeals
Council, or to remand the matter to the ALJ, on grounds that: (1)
the Appeals Council’s decision to reopen was not timely; (2) the
Appeals Council erroneously concluded that Myra Manalo was not
afforded due process, thus no basis existed for reopening the
ALJ’s decision; (3) the Appeals Council’s findings are legally
and factually incorrect, because claimant established by
competent evidence that Myra was not Kevin Robertson’s child,
within the meaning of the Social Security Act; (4) the ALJ’s
decision was proper and supported by substantial evidence; and
(5) the proper remedy here, at most, would be remand, not
reversal, to allow the ALJ to obtain additional evidence from
Filipinas Manalo regarding her relationship with Kevin Robertson.
Obviously, claimant does not seek to reverse the award of
prospective benefits affirmed by the Appeals Council. Rather,
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she seeks to reverse the Appeals Council’s decision not to
nullify Myra’s award of benefits – which effectively limited
claimant to a one-third rather than a one-half share, and she
seeks to reverse the Appeals Council’s decision to deny her
retroactive benefits.4 The Commissioner counters that the
Appeals Council properly reopened the ALJ’s decision, and
properly declined to reopen the 1993 SSA determination that Myra
Manalo was Kevin Robertson’s daughter.
I. The Appeals Council’s Authority to Reopen the ALJ’s Decision
The Appeals Council did not err when it reopened the ALJ’s
decision, even though it did so approximately 120 days after the
decision was issued. Under the provisions of 20 C.F.R. §
404.969(a), the Appeals Council has sixty days to review an ALJ’s
decision on its own motion. See also Reagan v . Sec’y of HHS, 877
4
As for the period of retroactivity, claimant offers no
legal support for the proposition that she is entitled to
benefits from the date of Kevin’s death, and she appears no
longer to press that claim. Based upon her motion to reverse the
Appeals Council’s decision, claimant seems to accept the Appeals
Council’s ruling that the period of retroactivity goes back only
six months prior to her date of application. Because the family
maximum benefit has already been paid out, claimant’s only hope
for recovery of retroactive benefits rests on reversing the
Appeals Council’s decision not to nullify Myra’s award of
benefits.
9
F.2d 123, 124 (1st Cir. 1989). After sixty days, an ALJ’s
decision becomes a final determination.
Id. However, the
Appeals Council “may reopen a final determination or decision on
[its] own initiative . . .”
20 C.F.R. § 404.987(b). That is
what happened here.5 (See T r . at 8.)
Here, the Appeals Council reopened the matter approximately
four months after the ALJ’s decision. Under the provisions of 20
C.F.R. § 404.988(a), a matter may be reopened “[w]ithin 12 months
of the date of the notice of the initial determination, for any
reason.” Accordingly, there is no merit to claimant’s argument
that the Appeals Council failed to take this matter up in a
timely manner. And because the Appeals Council was entitled to
reopen the ALJ’s decision “for any reason,” whether Myra did or
did not receive due process is immaterial; the Appeals Council
was not required to find a due process violation as a
precondition to reopening the ALJ’s decision.
5
At one time, the Court of Appeals for the First Circuit
construed a previous version of 20 C.F.R. §§ 404.987-89 to bar
the Appeals Council from reopening an ALJ’s decision on its own
initiative. See McCuin v . Sec’y of HHS,
817 F.2d 1 6 1 , 175 (1st
Cir. 1987). But subsequent revisions to
20 C.F.R. § 404.987 have
effectively side-stepped McCuin.
10
II. Adjudication of the 1993 Determination
Before the ALJ determined that Myra was not entitled to
child’s insurance benefits, he must necessarily have reopened the
1993 determination that she was entitled to such benefits.
However, the ALJ made no reference to any legal authority
warranting a reopening of the 1993 determination. If more than
four years has elapsed since the Commissioner made a
determination or a decision in a Social Security matter – as is
the case here – that determination may only be reopened under
specified circumstances. See generally 20 C.F.R. § 404.988(c).
The only basis for reopening pertinent to this case is set out in
§ 404.988(c)(1), which allows a determination to be reopened, at
any time, if it was “obtained by fraud or similar fault.” The
ALJ made no finding of fraud or similar fault. Therefore, he
erred as a matter of law when he reopened the 1993 determination
sub silentio. The Appeals Council similarly erred when it
reached the merits of the 1993 determination, rather than simply
reversing the ALJ’s decision based upon the ALJ’s unwarranted
reopening of the 1993 benefits determination.6
6
The Appeals Council’s decision seems to dodge this issue.
The GLPC correctly pointed out that the ALJ had reopened the 1993
determination without making the necessary finding of fraud or
similar fault. But, the Appeals Council made no mention of the
11
Because the Appeals Council reached the correct result
(leaving the 1993 determination intact), albeit on questionable
grounds, that result is affirmed. However, those portions of the
Appeals Council’s decision dealing with the merits of the 1993
benefits determination are vacated. The Appeals Council’s
decision is affirmed rather than remand ordered because there is
nothing in this record that even hints of fraud or similar fault
attributable to Filipinas or Myra. Absent such a showing, the
1993 determination is not subject to reopening. Whether such a
showing can be made will have to be taken up at another time in
legal authority under which it was considering the merits of the
ALJ’s decision, or under which it was reopening the 1993
determination itself to reach the merits.
The Commissioner argues that the Appeals Council did not
reopen the 1993 determination and that its decision not to is
unreviewable, because claimant does not argue that the 1993
determination infringed upon any of her constitutional rights.
It would have been legally correct on this record for the Appeals
Council to have not reopened the 1993 determination, or for it to
have reversed the ALJ for having done s o , but the Appeals Council
actually did neither; it reached the merits of the 1993
determination.
While this court does not reach the merits, there being no
demonstration of fraud or similar fault, it is worth noting, in
passing, that even if the evidence Myra produced to prove her
mother’s marriage to Kevin barely qualifies as “convincing
evidence of the marriage,” 20 C.F.R. §§ 404.725(c) and
404.727(c), claimant has produced no reliable evidence that
Filipinas and Kevin were not married. Claimant’s evidence
consists of two new affidavits from Kevin’s parents that do
little more than contradict an earlier set of affidavits, by
them, that supported Myra’s position.
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another proceeding, during the course of which Myra will of
course be afforded procedural and substantive due process.
Conclusion
For the reasons given, claimant’s motion (document n o . 8 ) is
denied, and the Commissioner’s Motion for Order Affirming the
Decision of the Commissioner (document n o . 10) is granted,
subject to the modification outlined above. The Clerk of the
Court shall enter judgment in accordance with this order and
close the case.
SO ORDERED.
Steven J. McAuliffe
United States District Judge
July 2 5 , 2003
cc: Francis XX.. Quinn, Jr., Esq.
David L . Broderick, Esq.
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