United States District Court, D. Utah
MEMORANDUM DECISION & ORDER
B.PEAD UNITED STATES MAGISTRATE JUDGE.
to 42 U.S.C. § 405(g), Plaintiff Maureen Hansen
(Plaintiff) seeks judicial review of the decision of the
Acting Commissioner of Social Security (Commissioner) denying
her claim for mother’s insurance benefits under Title
II of the Social Security Act (Act). After careful review of
the entire record, along with the parties’ briefs, and
arguments presented at a hearing held on March 27, 2017, the
court concludes that the Commissioner’s decision is
supported by substantial evidence and free of harmful legal
error and is, therefore, AFFIRMED.
court reviews the Commissioner’s decision to determine
whether substantial evidence in the record as a whole
supports the factual findings and whether the correct legal
standards were applied. See Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007). “Substantial evidence is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id.
(citation omitted). The court may neither “reweigh the
evidence [n]or substitute [its] judgment for the
[ALJ’s].” Id. (citation omitted). Where
the evidence as a whole can support either the agency’s
decision or an award of benefits, the agency’s decision
must be affirmed. See Ellison v. Sullivan, 929 F.2d
534, 536 (10th Cir. 1990).
applied for mother’s insurance benefits in July 2012,
alleging entitlement to benefits as the surviving divorced
spouse of Scott H. Hansen (Certified Administrative
Transcript (Tr.) 24-25). After Plaintiff’s claim was
denied at the initial level and on reconsideration (Tr.
26-29, 34-36), an administrative law judge (ALJ) held a
hearing in March 2014 (Tr. 579-629). The ALJ subsequently
issued a decision on July 23, 2014, finding that Plaintiff
was not entitled to mother’s insurance benefits (Tr.
12-16). The Appeals Council denied Plaintiff’s request
for review (Tr. 3-6), making the ALJ’s July 2014
decision the Commissioner’s final decision for purposes
of judicial review. See 20 C.F.R. §§
404.981, 422.210(a). This appeal followed.
Entitlement to Mother’s Insurance Benefits
individual may be entitled to mother’s benefits on the
earnings record of a spouse or ex-spouse who was fully or
currently insured when he died. See 20 C.F.R. §
404.331. As relevant here, the individual must be the widow
of the insured; must apply for benefits; must be unmarried;
must not be entitled to widow’s benefits or an old-age
benefit that is equal to or larger than the insured’s
benefits; and must have in her care the insured’s child
who is entitled to child’s benefits and the child is
under 16 years old or is disabled. See 20 C.F.R.
§ 404.339(a)-(e). In this case, the court finds that
Plaintiff fails to meets the above requirements because she
did not have her children in her “care” during
the relevant period.
Plaintiff Fails to Establish The Children Were In Her
“Care” During the Relevant Time Period.
requirement for receiving mother’s benefits, a claimant
must “have in her care the insured’s
child who is entitled to child’s benefits and [the
child] is under 16 years old or is disabled.” 20 C.F.R.
§ 404.339(e) (emphasis provided). The Commissioner
points out that “in care” means that the claimant
must “exercise parental control and
responsibility,” i.e., supervise the
child’s activities and participate in the important
decisions about the child’s physical and mental needs.
See Social Security Administration Program
Operations Manual System (POMS) RS 01310.001(D)(1); see
also POMS RS 01310.010(A).Parental
control and responsibility may be direct in situations where
a parent lives with the child, or indirect in situations
where a parent gives instructions to the child’s
custodian and ensures those instructions are carried out.
POMS RS 01310.010(B).
case, the court finds the ALJ reasonably concluded that
Plaintiff failed to meet the in care requirement (Tr. 14-15).
In making this finding, the ALJ relied on evidence showing
that Plaintiff did not live with her children during the
relevant period, did not have custody of her children, had a
protective order issued against her in 2003 which prohibited
her from removing the children from the possession of her
ex-husband, and was only allowed supervised possession of the
children once a week for one day (Tr. 14; see Tr.
94-92, 97-99). The ALJ also relied on a 2006 Texas Court
Order (Texas Order), stemming from Plaintiff’s divorce,
which made Plaintiff the “possessory conservator”
for her children (Tr. 14). The Texas Order provided Plaintiff
with very limited rights, including the right to consent to
medical, dental, and surgical treatment, but only
“during an emergency involving an immediate danger to
the health and safety of the children”; the right to
direct the moral and religious training of the children; and
the duty to support the children, including clothing, food,
shelter, and medical and dental care not involving an
invasive procedure (Tr. 155-56). The ALJ reasonably concluded
that this order “significantly limited
[Plaintiff’s] ability to care for and interact with her
children,” and that she was “not able to exercise
parental control and authority, as that duty was reserved for
the managing conservators” (Tr. 14).
the Texas Order explicitly provided the children’s
uncle and aunt, Clark and Sheila Hansen, with many
“exclusive rights,” including the right to
designate the children’s primary residence, consent to
medical and dental care, make decisions concerning their
education, direct their moral and religious training, as well
as the duty of care, control, protection, and reasonable
discipline (Tr. 154-55). The Court finds, on its face, the
Texas Order establishes that Plaintiff did not
“exercise parental control and responsibility,”
i.e., supervise the children’s activities and
participate in the important decisions about their physical
and mental needs. See POMS RS 01310.001(D)(1); POMS
RS 01310.010(A). Plaintiff had no authority to give
instructions to the custodians of the children and ensure
that those instructions were carried out. See POMS
RS 01310.010(B)(2). Instead, Clark and Shelia Hansen had the
“exclusive right” to make the important decisions
about the children’s physical and mental needs,
including their place of residence, education, and
non-emergency medical and dental care (Tr. 154-55).
See POMS RS 01310.001(D)(1); POMS RS 01310.010(A).
Although Plaintiff asserts that she retained “those
powers she considered essential to a mother for the
children’s upbringing,” her claim fails to
overcome the explicit grant of parental control and
responsibility provided to the Hansens under the Texas Order
(Pl. Br. 18). Thus, this court finds substantial evidence
supports the ALJ’s finding that Plaintiff “did
not have the children in her care and was strictly limited in
her ability to interact with her children by the Texas
District Court” (Tr. 14).
Plaintiff Fails To Show She Filed An Application For
Mother’s Insurance Benefits In 2005.
the ALJ’s decision could be affirmed on this basis
alone, the parties disagree on whether Plaintiff meets the
first requirement for obtaining mother’s insurance
benefits, i.e., whether she filed a written application for
benefits prior to July 2012. See 20 C.F.R. §
404.339(a)-(e). It is well-established that a claimant must
file a written application prior to any entitlement to Social
Security benefits. See 42 U.S.C. §
402(b)(1)(A); see also 20 C.F.R. § 404.310(c)
(requiring an application); Johnson v. United
States, 572 F.2d 697, 699 (9th Cir.1978) (recognizing
that the explicit language of § 402 makes filing an
application a substantive condition to receiving benefits
under the Act); see also Smithback v. Sullivan, 899
F.2d 698, 699 (7th Cir. 1990) (same); Miller v.
Comm’r. of Soc. Sec. Admin., 280 F. App’x.
870, 872 (11th Cir.2008) (unpublished) (same). Here,
Plaintiff asserts that she attended a meeting at the Social
Security Administration in 2005, after her ex-husband’s
death, and alleges that she “attempted to
claim benefits” at that time (Pl. Br. 11)
(emphasis in original). There is, however, no record showing
whether Plaintiff attended the meeting or what was discussed
at the meeting. In ...