Opinion
CIVIL ACTION NO. 19-10199-MPK
02-22-2021
HARRIET L. BORNSTEIN, Plaintiff, v. ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.
MEMORANDUM AND ORDER ON MOTION FOR ORDER REVERSING DECISION OF COMMISSIONER (#26) AND MOTION FOR ORDER AFFIRMING DECISION OF COMMISSIONER (#29).
I. Introduction.
In July 2002, plaintiff, Harriet L. Bornstein, filed an initial claim for widow's insurance benefits under Title II of the Social Security Act, based on the earnings of her former husband, Paul Bornstein, who divorced plaintiff effective in March 1980, and passed away in Massachusetts in 1999. (TR at 27-28, 50, 52-54.) Plaintiff stated in her claim that she had married Mr. Bornstein on May 10, 1970, in Massachusetts. Id. at 28, 53. Because plaintiff had not been married to Mr. Bornstein for at least ten years, the Social Security Administration (SSA or the administration) denied her claim pursuant to 42 U.S.C. §§ 402(b)(1), 416(d)(1); see also 20 C.F.R. § 404.336(a)(2). Id. at 156, 270-71.
The abbreviation TR refers to the administrative record.
The Social Security Act provides that, in order to receive a divorced spouse's insurance benefits, an applicant must have been validly married to the insured worker for a period of ten years immediately before the date of divorce became effective. See 42 U.S.C. §§ 402(b)(1), 416(d)(1); see also 20 C.F.R. § 404.336(a)(2).
Rather than appealing the denial of her claim, plaintiff filed the instant claims for Title II benefits in 2009 and 2010, which the SSA appears to have consolidated (the claim). (TR at 28-29.) Unlike in 2002, plaintiff claimed that she was in a common-law marriage with Mr. Bornstein prior to their formal marriage ceremony in Massachusetts. Id. at 31, 109.
On July 24, 2009, plaintiff filed her second application for widow's benefits, which was denied on August 24, 2009. (TR at 28.) Plaintiff filed a third application for widow's benefits on September 14, 2010, and was given a protective filing date of July 24, 2009. Id. at 28-29.
In August 2013, after the claim was denied on initial review and reconsideration, Administrative Law Judge (ALJ) Chester G. Senf held a hearing, at which plaintiff waived her right to representation. Id. at 30, 108. On October 1, 2013, ALJ Senf issued a decision approving plaintiff's claim, finding that plaintiff was in a common-law marriage to Mr. Borstein in Georgia and Texas beginning in 1969, more than ten years prior to their March 1980 divorce, allowing her to receive widow's benefits. Id. at 105-11. ALJ Senf's decision was sent to plaintiff on the same date. Id. at 105. ALJ Senf did not address any request to reopen the unfavorable decision on the 2002 application. Id. at 30, 105-11. On November 18, 2013, the SSA sent plaintiff a Notice of Award, explaining that she was entitled to Title II benefits beginning in July 2009. Id. at 112-14.
The SSA has not been able to locate a transcript of the hearing, although it represents that it has conducted an extensive search. (TR at 31.)
Section 416(h)(1)(A) requires that the law of the state of domicile of the deceased worker be used to determine if the applicant and the worker were married. 42 U.S.C. § 416(h)(1)(A). ALJ Senf correctly concluded that, because Mr. Bornstein died in Massachusetts, Massachusetts state law would apply in determining whether plaintiff and Mr. Bornstein were validly married. (TR at 109.)
ALJ Senf went on to explain that, while Massachusetts has never recognized common-law marriage, see Heistand v. Heistand, 384 Mass. 20, 24 (1981), Massachusetts conflict of laws rules apply where, as here, the marriage allegedly occurred elsewhere. See id. at 109-10 (noting that plaintiff claimed that she and Mr. Bornstein previously had a common-law marriage in Georgia or, alternatively, Texas where they lived together prior to their formal marriage ceremony in 1970). Because Massachusetts courts refer to the state where the parties were domiciled, ALJ Senf analyzed the Georgia and Texas laws regarding common-law marriage. Id. (citing Ex Parte Suzanna, 295 F. 713, 717 (D. Mass. 1924)).
Despite her favorable award from ALJ Senf, plaintiff filed a request for reconsideration seeking an "entitlement date" of July 31, 2002, around the date of her first Title II claim. Id. at 118. On December 26, 2013, plaintiff filed a request for review, seeking the same relief. Id. at 119. In December 2015, the Appeals Council granted plaintiff's request for review. Id. at 31, 134. Because it could not locate the transcript of the hearing and, therefore, determine whether ALJ Senf's decision was supported by "substantial evidence," the Appeals Council vacated ALJ Senf's decision and remanded the case to another ALJ for a new hearing. Id. at 31, 134-38. Plaintiff again waived her right to representation at the new hearing, held in front of ALJ Stephen C. Fulton on June 9, 2016. Id. at 159, 267-378.
The June 2016 hearing related to an alleged overpayment of income benefits, in addition to plaintiff's application for widow's benefits. (TR at 269.) The only relevant issue here is whether plaintiff and Mr. Bornstein were in a common-law marriage in 1969, so plaintiff could meet the 10-year marriage requirement for widow's benefits.
In July 2016, ALJ Fulton issued a decision denying plaintiff's claim. Id. at 27-43. Plaintiff then retained counsel, and counsel filed a Request for Review of ALJ Fulton's decision. Id. at 176. In March 2018, the Appeals Council denied plaintiff's request for review. Id. at 11-14. As a consequence of the denial, the ALJ's decision de facto became the final decision of the Commissioner, subject to judicial review under 42 U.S.C. § 405(g).
The instant action was filed on January 30, 2019. (#1.) On August 6, 2019, plaintiff filed the present motion for order reversing the decision of the Commissioner. (#26.) Defendant's motion for order affirming the decision of the Commissioner followed on September 18, 2019. (#29.) Both motions have been fully briefed. (##30, 33, 34.)
On November 13, 2019, plaintiff filed a motion to strike defendant's reply to plaintiff's response in opposition to its motion for an order affirming the decision of the Commissioner. See #35 (arguing that #34 should be stricken). Defendant opposed. (#36.) Plaintiff's motion is denied. Defendant had been permitted to file a reply. See #32. Moreover, plaintiff's motion is moot, as none of the arguments in defendant's reply affect the court's decision. See infra.
II. Facts.
A. The June 9, 2016 Hearing in Front of ALJ Fulton.
Plaintiff testified in front of ALJ Fulton that she met Mr. Bornstein some time in 1966, when they both were living in Massachusetts. (TR at 290.) Approximately one year later, the couple discussed getting married, and Mr. Bornstein gave plaintiff an engagement ring. Id. at 292. Around the end of 1968, before the couple set a wedding date, Mr. Borstein got drafted into the Army. Id. at 294-95.
In early 1969, Mr. Borstein was ordered to report to Fort Gordon, Georgia, for basic training. Id. at 295-98. Approximately ten weeks later, plaintiff joined Mr. Bornstein in Georgia, renting an off-base apartment Mr. Borstein had found for her in her maiden name. Id. at 298-99, 304-05. While Mr. Borstein was unable to stay with plaintiff at the apartment every night, it is undisputed that she and Mr. Borstein cohabitated there for purposes of a common-law marriage inquiry. Id. at 299, 342. Plaintiff testified that her parents were "[v]ery unhappy" about her decision to join Mr. Bornstein in Georgia and asked her to stay in Massachusetts. Id. at 295-96.
During her time in Georgia, plaintiff became acquainted with several other women who were living in the same apartment complex, showed them her engagement ring, and told them that she "had the intent to get married." Id. at 308-10. Also at this time, Mr. Bornstein obtained a life insurance policy, which named plaintiff, "Harriet Linda Bornstein[,]" as the beneficiary and referred to plaintiff as his spouse. Id. at 335. Plaintiff testified that Mr. Bornstein was "probably thinking futuristic wise" in referring to her as his spouse on the policy. Id. at 338; see also id. at 339 ("I'm thinking he was thinking ahead like I'm going to marry this person within the next year or so"). However, she noted that she and Mr. Borstein "were considering [themselves] like a married couple[,] . . . living like a married couple" and doing "everything that all married couples do," such as cohabitating, having sexual relations, and going places together. Id. at 332, 343.
Plaintiff later testified that she could not recall whether she introduced Mr. Bornstein as her husband while in Georgia. (TR at 335.) She noted that she would use her maiden name on some documents and Mr. Bornstein's last name on other documents, depending on what was more beneficial, or if she and Mr. Bornstein felt embarrassed about not being formally married in a particular situation. Id. at 339-40.
In February 1970, Mr. Bornstein received orders to transfer to Fort Hood, Texas, by March 20, 1970. Id. at 300. Plaintiff accompanied Mr. Borstein to Texas and, as she did in Georgia, rented an apartment in Texas. Id. at 314-15. When he was able, Mr. Borstein would stay in the apartment with plaintiff and commute to the military base at Fort Hood. Id. at 316. The couple split the rent on the Texas apartment, and plaintiff believes that their electric bill was in both of their names. Id. at 319. Plaintiff does not know whether she and Mr. Borstein jointly owned any personal property, such as a car or furniture, at that time. Id. at 331. The couple did not file any income tax returns at that point. Id.
Plaintiff testified that, during her time in Georgia and Texas, Mr. Borstein never requested a military spouse's ID card for her. Id. at 301. She never asked Mr. Bornstein why they could not live on the military bases in married housing, id. at 315, never considered whether she could receive medical treatment on the military bases, id. at 303, 318, and never applied for any other benefits as the wife of a military member before 1970. Id. at 317. However, she noted that she was young at the time and "maybe [she] never even thought to ask" about such things. Id. at 303.
Plaintiff testified that Mr. Bornstein obtained leave during the spring of 1970, and the couple briefly returned to Massachusetts for a formal wedding ceremony, held at the Temple of Ezrath Israel in Malden on May 10, 1970. Id. at 320-21. Prior to the ceremony, plaintiff and Mr. Borstein obtained a Massachusetts marriage license. Id. at 324. In order to be formally married at the Temple of Ezrath Israel, Mr. Borstein had to convert to Judaism, and he spent time studying with a Rabbi while in Georgia. Id. at 345-46. Plaintiff testified that she and Mr. Bornstein never met with the Rabbi in Georgia to discuss their marital status. Id. at 345. During the formal ceremony, plaintiff received her wedding ring, with the date of their formal ceremony, May 10, 1970, engraved inside. Id. at 323-24.
Plaintiff and Mr. Borstein then went on a 5-day honeymoon to Bermuda, after which they returned to Fort Hood, and plaintiff applied for benefits as the wife of a military member. Id. at 322, 328. Shortly after returning to Texas, Mr. Borstein was reassigned to Fort Devens in Ayer, Massachusetts, and the couple returned to Massachusetts. Id. at 328. Following his discharge from the military, Mr. Borstein worked as a mechanic in Somerville, Massachusetts. Id. at 329.
On September 28, 1979, a Judgment of Divorce Nisi was issued by the Middlesex Probate Court, Commonwealth of Massachusetts. Id. at 27. The Judgment became final on March 28, 1980. Id. at 27. The marriage date of May 10, 1970, was used in the divorce proceedings. Id. at 33.
B. Additional Evidence Submitted.
In addition to the life insurance policy and divorce filings, plaintiff submitted the following evidence at the hearing in front of ALJ Fulton: her bridal shower invitation, inviting guests to "attend a Bridal Shower in Honor of Harriet Lightman [plaintiff's maiden name] on [April 7, 1970]"; a Certificate of Conversion, dated March 20, 1970, welcoming Mr. Bornstein into the Jewish faith; a marriage certificate, stating that plaintiff married Mr. Bornstein in Malden, Massachusetts on May 10, 1970; the couple's certificate of divorce; Mr. Bornstein's death certificate; a Statement of Marital Relationship, dated July 16, 2010; a letter from Mr. Bornstein's sister, Patricia Fantasia, dated April 23, 2010; a letter from Mr. Bornstein's sister, Sandra L. Holmes, dated April 19, 2012; and a letter from plaintiff's lifelong friend, Dina Cavalieri, dated April 18, 2012. (TR at 44, 46-54, 63, 76-81, 98-99, 356-37.)
Plaintiff's Statement of Martial Relationship provided, in pertinent part, as follows:
I lived with my husband in FT. Gordon, GA and FT. Hood, TX from 1969-1971[,] then transferred to FT. Devens to complete his reserve time, active duty from Jan[.] 21, 1969-Jan[.] 20, 1971. . . . Common Law during these years was recognized in the State of Georgia and Texas. I married in a formal ceremony [on May 10, 1970] and divorced March 28, 1980.Id. at 76, 79. Plaintiff further indicated in her statement that she went by the name "Harriet Bornstein-Lightman" since living with plaintiff in Georgia and that the couple would introduce themselves to others as "husband and wife[.]" Id. at 79.
. . . .
The ceremony we believed was not necessary after the time of us living together until we returned after [Mr. Bornstein's] active duty to have a ceremony with family and friends.
Ms. Fantasia's letter provided as follows:
When Harriet Bornstein [plaintiff] first met by brother in 1967, she became a part of our family. They got engaged and my brother . . . went into the [A]rmy. They were so in love that Harriet wanted to be with him, so in 1969, Harriet moved down to Fort Hood, Texas to be with [him].Id. at 63.
They set a date[,] May 10, 1970[,] to marry in Malden, Massachusetts. Both of our families were so excited we started making plans for their return. When they did return,[, they] had a beautiful wedding in which I was a bridesmaid.
Ms. Holmes indicated in her letter:
I have known Harriet Bornstein since I was ten years old (46 years) when she started dating my brother, Paul David Bornstein. I remember growing up Harriet was at our house all the time like part of our family. I also remember babysitting for her two sons my whole teenage life (12 yrs old to 17 yrs old).Id. at 99.
When they moved to Texas they were already married but the formal ceremony took place when they came back to Massachusetts on May 10, 1970. I was one of their bridesmaids at the wedding.
Ms. Cavalieri's letter provided:
I have known Harriet Bornstein all my life as our parents knew one another since before we were born. Harriet and I are like sisters. Harriet met [Mr. Bornstein] the summer of 1967 and began dating; [Mr. Bornstein] entered the military in 1968. At that point they became engaged and she joined him at Fort Gordon, Georgia where he was stationed. They began to live together and made plans to legally marry back in Malden, Massachusetts. She moved with him to Killeen, Texas when he was transferred to Fort Hood. I was fully aware of [their] cohabitation agreement in both Georgia and Texas throughout this period. They flew back to Boston for their May 10[], 1970[,] wedding ceremony, which I personally attended.Id. at 98.
. . . .
Where, as here, "either the husband or wife is dead," the Code defines "preferred evidence" of a common-law marriage as "the signed statements of the [spouse] who is alive and those of two blood relatives of the deceased person." 20 C.F.R. § 404.726(b)(2). "If a written statement cannot be gotten from a blood relative, one from another person can be used instead." 20 C.F.R. § 404.726(b).
The Code explains that, if an applicant provides preferred evidence, it will generally be found to be convincing, unless there is other information within the record that raises a doubt about it. 20 C.F.R. § 404.709.
C. ALJ Fulton's Decision.
ALJ Fulton found that plaintiff "and Mr. Bornstein, during the time they were together in Georgia, did have intent to marry at some time in the future but did not have an actual present contract of marriage" until they returned to Massachusetts for their formal marriage ceremony. (TR at 39 (emphasis in original).) Because plaintiff had not established by a preponderance of the evidence that a common-law marriage existed between her and Mr. Bornstein during their time in Georgia, she did not meet the requirements for widow's benefits under 42 U.S.C. §§ 402(b)(1), 416(3)(1). See id. at 39-42.
ALJ Fulton noted that "Texas also recognizes common law marriage." (TR at 37 n.14 (citations omitted).) "However, [he] focused on whether [plaintiff] ha[d] established a common law marriage in Georgia rather than Texas because, if anything, the law of Texas may be more restrictive in that there may be a requirement of time spent in Texas before it recognizes common law marriage contracted in Texas. . . . If there was no common law marriage pursuant to the law of Georgia, there was none in Texas either." Id.
While ALJ Fulton also analyzed whether the unfavorable determination on plaintiff's 2002 application could be "reopened[,]" this issue is irrelevant for the reasons described infra. See TR at 34 n.13 (noting that, if plaintiff was not married to Mr. Bornstein for ten years before their divorce, "whether the prior unfavorable determination is reopened makes no difference").
After citing the laws regarding common-law marriage in Georgia, see id. at 37-38, ALJ Fulton addressed the "preferred evidence[,]" weighing the witness statements as follows:
I give the statement of Ms. Fantasia great weight. She does not state she believed that [plaintiff] and Mr. Bornstein were married prior to the May 10, 1970, marriage in Massachusetts. She states they were "engaged" and later "set a date to be married." Based on all the other evidence, I find this statement correctly describes the arrangement between [plaintiff] and Mr. Bornstein prior to the May 10, 1970, marriage in Massachusetts.Id. at 40. He also weighed plaintiff's statement:
I give little weight to the statement of Ms. [Holmes] that [plaintiff] and Mr. Bornstein "were already married when they moved to Texas." There is no explanation as to why Ms. [Holmes] believed that [plaintiff] and Mr. Bornstein were married prior to the May 10, 1970, marriage ceremony in Massachusetts. In addition, I find such a statement not consistent with the other evidence.
. . . .
. . . I give [Ms. Cavalieri's] statement great weight. There is no dispute that [plaintiff] and Mr. Bornstein cohabitated in Georgia and Texas. Ms. Cavalieri indicate[d] that at this time they were "engaged" and planning to come back to Massachusetts to "legally marry." Based on all the evidence, I find this statement correctly describes the arrangement between [plaintiff] and Mr. Bornstein prior to the May 10, 1970, marriage in Massachusetts.
I have considered the Statement of Material Relationship which is undated but appears to have been filed on or about July 26, 2011. . . . In that statement, [plaintiff] states that she and Mr. Bornstein agreed to live together when he was in the military and while he studied and converted to Judaism to marry her in a formal ceremony at a later date. She stated that she believed living together made her legally married because common law was recognized in Georgia and Texas. She said she did not believe a ceremony was necessary until she and Mr. Bornstein returned to Massachusetts after his military duty. She said that when she lived with Mr. Bornstein in Georgia and Texas that she used the name Harriet Bornstein-Lightman (Lightman was her maiden name). She said they would introduce themselves to relatives, family, friends, and business acquaintances as husband and wife.Id. at 42; see 20 C.F.R. § 404.709.
I give the statements that [plaintiff] and Mr. Bornstein introduced themselves as husband and wife and that she used his last name little weight. I find those statements are not consistent with her testimony and the other evidence.
ALJ Fulton referred to Ms. Holmes as "Angela M. Vasquez." (TR at 39.) The parties do not dispute that this was a mistake. See #26 at 10, #30 at 4. Ms. Vasquez was actually the person who notarized Ms. Holmes' letter. See TR at 99.
ALJ Fulton first considered plaintiff's testimony. Id. at 40. While plaintiff testified that she and Mr. Borstein lived as "man and wife in Georgia and Texas[,]" spending time together when Mr. Bornstein was not on military duty, having sexual relations, eating together, shopping together, and going places together, ALJ Fulton concluded that "[t]here is no evidence of joint undertakings by [plaintiff] and Mr. Bornstein while in Georgia (or Texas) such as a joint loan, joint bank account, or joint tax returns prior to the May 10, 1970, marriage ceremony." Id. at 40-41. Moreover:
There is no evidence of any Will, power of attorney, or health care proxy by which either [plaintiff] or Mr. Bornstein acknowledge[d] a marriage to each other in Georgia or Texas. Although, at least in Texas, Mr. Bornstein may have shared living expenses, the evidence indicates that [plaintiff], alone, entered into whatever legal or financial commitment was necessary for her living quarters in Georgia or Texas.
[Plaintiff] said she showed ("flashed") her engagement ring to others in Georgia or Texas. She did not say that she proclaimed to others generally that she was the wife of Mr. Bornstein or that he proclaimed to others that she was his wife.
[Plaintiff] said she used her maiden name and she or Mr. Bornstein might have said they were married to "secure" something or out of embarrassment. Such statements or state of mind convinces me that while in Georgia (or Texas before the Massachusetts marriage) [plaintiff] did not believe she and Mr. Bornstein were married but understood that she was merely living with Mr. Bornstein with the intent to marry in the future.Id. at 41.
Mr. Borstein . . . was undertaking teachings in [Judaism] with a Rabbi at Fort Gordon, in [Georgia], and in Massachusetts, so that he could marry [plaintiff]. . . . Although I find a subsequent marriage ceremony does not preclude, by itself, a pre-existing common law marriage, I find that Mr. Bornstein['s] religious training was understood by [plaintiff] and Mr. Bornstein to be a prerequisite to their marriage.
[Plaintiff] never applied for a military identification card as the spouse of a military member [until after the formal ceremony]. The evidence indicates that she did not live on the military base and had no access to the base as a spouse of a military member.
[Plaintiff] said her parents were not in favor of her going to Fort Gordon, Georgia to be with Mr. Bornstein and did not want them living together and asked her to wait. I infer that [plaintiff's] parents did not believe [plaintiff] to be presently married when she went to Georgia on or before the May 10, 1970, marriage ceremony.
ALJ Fulton further concluded that the following evidence weighed against the establishment of a common-law marriage: "the wedding rings exchanged at the May 10, 1970[,] wedding have engraved that date and not a date that [plaintiff] and Mr. Bornstein commenced cohabitation"; "the claimant's divorce identified her marriage date as May 10, 1970"; and "when the claimant first applied for widow's benefits, she indicated she was married May 10, 1970." Id. ALJ Fulton also stated:
I have considered the serviceman's group life insurance form which appears to have been dated January 27, 1969, and on which [plaintiff] is named Harriet Bornstein and listed as "spouse.". . . [Plaintiff] says Mr. Bornstein told her at Fort Gordon that he had put her on some life insurance. [Plaintiff] says he gave this document to her prior to his death because of the children (apparently after they were divorced). I do not find this document establishes there was an actual immediate contract of marriage at the time [plaintiff] moved to Georgia or at any time prior to the May 10, 1970 marriage ceremony.
I acknowledge that the prior [ALJ], in the now "vacated" decision dated October 1, 2013, gave great weight to this document as supporting a finding that [plaintiff] and Mr. Bornstein "held themselves out to the world as married." Based on all the evidence before me, I reach a different conclusion. . . . I find this document does not establish that [plaintiff] held herself out to herself out to the world as Mr. Bornstein's wife or that he held her out to the world as his wife or himself out to the world as her husband, especially in the view of the other circumstantial evidence. . . . I agree with [plaintiff] that, most likely, Mr. Bornstein was thinking "futuristic" and, believing he would be married to [plaintiff] in the near future, did not want any discrepancy over the document.Id. at 41-42.
In contrast to ALJ Fulton, ALJ Senf stated:
[E]vidence shows that [plaintiff] lived with Mr. Bornstein when he went to both Georgia and Texas while serving in the military. . . . Further, Mr. Bornstein signed a life insurance election naming plaintiff as his spouse on January 27, 1969. Clearly, this evidence supports the idea that they co-habituated and held themselves out to the world as married.(TR at 110.)
D. Plaintiff's Brief to the Appeals Council.
Plaintiff argued in her brief to the Appeals Council that she "was legally incompetent to represent herself due to SSA known mental illness at the hearing [in front of ALJ Fulton]. Thus, [ALJ Fulton] should have advised her to seek an attorney out prior to proceeding." (TR at 262.) She noted she was previously awarded [SSI benefits] on "June 29, 1993[,] due to mental disabilities." Id. While she obtained work in 2006, "ending her SSI benefit, the [a]gency had constructive, judicial, and actual notice of her impairments." Id. at 262-63.
Plaintiff further maintained that "[t]he Appeals Council decision vacating ALJ Senf's [f]avorable [r]uling . . . should be stricken because it was filed [at least sixteen days] late[,] and [she] never intended to seek its review and did so due to mental illness." Id. at 263. Rather, "she only wanted her entitlement date to be reconsidered. . . ." Id.; see id. at 264 ("it is clear that no appeal was made to the [Appeals Council], either legally in time or by intent"). She also argued that her claim that "she was married prior to [her Massachusetts] wedding should be given every benefit of the doubt under Georgia law . . . ." Id. at 264. Specifically, discussions with her attorney revealed that plaintiff was living "at a married only rental property" during her time in Georgia. Id. at 265. Plaintiff provided no evidence of this assertion at any time.
The Appeals Council subsequently denied plaintiff's request for a review, notifying plaintiff of its decision via letter, signed by Appeals Officer, Jill Luther. See TR at 11-13.
III. The Standard of Review.
Title 42 U.S.C. § 405(g) provides, in relevant part:
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow. . . . The 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. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .42 U.S.C. § 405(g). Where, as here, an ALJ's decision regarding social security benefits is appealed, and the Appeals Council denies a request for review, then the ALJ's decision will be considered the Commissioner's final determination. Purdy v. Berryhill, 887 F.3d 7, 12 (1st Cir. 2018).
The court's role in reviewing a decision of the Commissioner under 42 U.S.C. § 405(g) is circumscribed:
We must uphold a denial of social security disability benefits unless "the Secretary has committed a legal or factual error in evaluating a particular claim." Sullivan v. Hudson, 490 U.S. 877, 885, 104 L. Ed.2d 941, 109 S. Ct. 2248 (1989). The Secretary's findings of fact are conclusive if supported by substantial evidence. See
42 U.S.C. § 405(g); see also Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed.2d 842, 91 S. Ct. 1420 (1971).Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996); see Libby v. Astrue, 473 F. App'x 8, 8 (1st Cir. 2012); Eldrigde-Sampson v. Saul, 440 F. Supp.3d 126, 129 (D. Mass. 2020).
The Supreme Court has defined "substantial evidence" to mean "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (quoting Consol. Edison Co. v. Nat'l Labor Relations Bd., 305 U.S. 197, 229 (1938)); see Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991). As the First Circuit explained:
Substantial[] evidence review is more deferential than it might sound to the lay ear: though certainly more than a scintilla of evidence is required to meet the benchmark, a preponderance of evidence is not. . . . Rather, [the court] must uphold the Commissioner's findings . . . if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support her conclusion. . . . [I]ssues of credibility and the drawing of permissible inference from evidentiary facts are the prime responsibility of the Commissioner, and the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for her, not for the doctors or the courts.Purdy, 887 F.3d at 13 (internal citations, quotation marks, and alterations omitted); Charkowski v. Berryhill, No. 15-13356-GAO, 2017 U.S. Dist. LEXIS 41443, at *1 (D. Mass. Mar. 22, 2017).
Put differently, if supported by substantial evidence, the Commissioner's decision must be upheld even if the evidence could also arguably admit to a different interpretation and result. See Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000); Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); Torres-Martinez v. Colvin, No. 3:16-cv-30016-KAR, 2017 U.S. Dist. LEXIS 40545, at *13 (D. Mass. Mar. 21, 2017). "Even in the presence of substantial evidence, however, the Court may review conclusions of law and invalidate findings of fact that are derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts." Malone v. Colvin, 238 F. Supp.3d 151, 162 (D. Mass. 2017) (internal citations and quotation marks omitted).
IV. Discussion.
A. ALJ Fulton committed no legal error in determining that plaintiff and Mr. Bornstein were not in a common-law marriage under Georgia law, and his findings of fact are supported by substantial evidence.
Plaintiff's main argument is that the ALJ "misapplied Georgia law in determining if [she] was in a [c]ommon law [m]arriage and did not have substantial evidence to support his decision." (#26 at 1-2.) Specifically, plaintiff maintains that her testimony at the hearing was "unintentionally mischaracterized by [ALJ] Fulton"[;] that "[t]he law favors the validity of marriages"; and that her "[t]estimony proves a [c]ommon law [m]arriage existed . . . prior to the [formal] wedding." Id. at 15-16. These arguments are meritless.
Plaintiff does not challenge ALJ Fulton's finding that there could be no common-law marriage in Texas if there was no common-law marriage in Georgia.
The State of Georgia recognizes valid common-law marriages entered into prior to January 1, 1997. See Ga. Code Ann. § 19-3-1.1. "In order for a common-law marriage to [have] come into existence, the parties must [have been able] to contract, must [have] agree[d] to life together as [husband] and wife, and must [have] consummate[d] the agreement. All three of these elements . . . must be met simultaneously." In re Estate of O'Connell, 354 Ga. App. 333, 335 (2020) (citing In re Estate of Smith, 298 Ga. App. 201, 202 (2009)). The party asserting there is a common-law marriage "must establish its existence by a preponderance of the evidence." Id. at 335.
Circumstantial evidence may be used to show the existence of a valid common-law marriage contract. See In re Estate of Love, 274 Ga. App. 316, 319 (2005) (quoting Wright v. Goss, 229 Ga. App. 393, 394 (1997) ("Evidence tending to show the existence of a common law marriage may include 'such circumstances as the act of living together as man and wife, holding themselves out to the world as such, and repute in the vicinity and among neighbors and visitors that they are such, and indeed all such facts as usually accompany the marriage relation and indicate the factum of marriage.")). While "[t]he fact of cohabitation is treated as essential, if not the main factor in establishing . . . a common-law marriage[, ]" Wright, 229 Ga. App. at 394-95 (internal citations and quotation marks omitted), Georgia appellate courts have upheld trial courts' decisions finding common-law marriages not to exist where, as here, the evidence is conflicting. See, e.g., Estate of O'Connell, 354 Ga. App. at 335-38 (probate court appropriately determined that appellant and decedent did not have a valid common-law marriage, despite their long cohabitation and appellant's testimony that they exchanged rings and private vows, when decedent's siblings indicated that decedent never called appellant his wife or mentioned their private vows, and appellant herself testified that she and decedent never signed any legal document relating to their alleged marriage); Estate of Smith, 298 Ga. App. at 202-04 (affirming probate court's judgment denying existence of a common-law marriage, where administrator testified that she and the decedent cohabitated on and off for over a decade and that others knew her and decedent as husband and wife, but decedent's relatives testified that he never held himself out to be administrator's wife).
ALJ Fulton committed no legal or factual error in finding that plaintiff had not proven she was in a common-law marriage to Mr. Bornstein by a preponderance of evidence. As in Estate of O'Connell and Estate of Smith, the evidence in front of ALJ Fulton regarding the existence of a common-law marriage was conflicting. On the one hand, there is no dispute that plaintiff co-habituated with Mr. Bornstein when the couple was in Georgia, and Mr. Bornstein listed plaintiff as his "spouse" on his life insurance policy. On the other hand, two of plaintiff's three witnesses stated that plaintiff and Mr. Bornstein were originally married on May 10, 1970, in Massachusetts. There is no evidence of a joint loan, joint bank account, joint tax returns, or any other joint property prior to the couple's May 1970 marriage ceremony. Plaintiff testified that she did not attempt to obtain military spousal benefits until after the May 1970 ceremony; the couple's wedding rings were engraved with the May 1970 date; and the couple's divorce papers indicated that May 10, 1970, was their marriage date.
ALJ Fulton's findings of fact are supported by substantial evidence under the court's deferential standard of review. Given the two preferred witness statements, the couple's wedding rings, and their divorce papers, in addition to plaintiff's testimony that she may have said she and Mr. Bornstein were married in order to "secure" something or out of embarrassment, there was substantial evidence for ALJ Fulton to conclude that plaintiff understood that she was simply living with Mr. Bornstein in Georgia with the intent to marry later. The fact that plaintiff did not attempt to secure a military spouse's ID card until after the couple's marriage ceremony in Massachusetts, the fact that Mr. Bornstein was studying Judaism so he could convert prior to the couple's formal marriage ceremony, and the fact that plaintiff's parents did not promote the idea of her moving to Georgia to be with Mr. Bornstein, also support ALJ Fulton's conclusion that plaintiff and Mr. Bornstein were not legally married until they returned to Massachusetts. ALJ Fulton's findings are particularly supported by the fact that plaintiff indicated the May 1970 marriage date in her original 2002 application. Although plaintiff maintains that ALJ Fulton's leading questions at the hearing "drew vague answers capable of two interpretations on marriage" (#26 at 13), and his findings of fact were different from those of ALJ Senf, it is clear a reasonable mind could accept the evidence as adequate to support ALJ Fulton's conclusions. See Purdy, 887 F.3d at 13.
The cases plaintiff cites are either inapposite or do not aid her claim. See #26 at 12-13. Longstreet relates to a marriage annulment, rather than the existence of a common-law marriage. See Longstreet v. Longstreet, 205 Ga. 255 (1949). Lewis involved the claim of an employee's second wife for workers' compensation benefits. See State Highway Bd. v. Lewis, 167 S.E. 219, 219-20 (Ga. App. Ct. 1932). Reed analyzed whether a husband was required to pay his second wife alimony on the basis that his previous marriage had not been fully dissolved. Reed v. Reed, 202 Ga. 508, 512-13 (1947). While the court in Chance held that the "presumption of marriage from connubial habit is one of the strongest known to the law, and is to be repelled only by clear evidence[,]" Chance was decided over eighty years before O'Connell and approximately seventy years before Smith. See Chance v. Chance, 60 Ga. App. 889, 891 (1939). Moreover, unlike in the present case, "[t]here was evidence by [the couple's] neighbors and acquaintances to the effect that [they] lived together continuously for fifteen to twenty years . . . , that they held themselves out as husband and wife, and that it was the general repute in the community where they lived that they were living together as husband and wife." Id.
Plaintiff further argues that a later cross-examination by her attorney revealed that the property she rented in Georgia was for married couples only, making "a strong case for deeming her married." (#26 at 15.) This argument is also meritless. Defendant correctly points out that "courts 'may review the ALJ decision solely on the evidence presented to the ALJ[,]'" and there was no evidence of this fact in front of ALJ Fulton. (#30 at 25 (quoting Mills v. Apfel, 244 F.3d 1, 5 (1st Cir. 2001)); see Shea v. Colvin, No. 12-12420-JLT, 2013 WL 5952992, at *9 (D. Mass. Nov. 3, 2013)). Even if such evidence had been presented to ALJ Fulton, it was still reasonable for him to conclude that plaintiff and Mr. Bornstein were not married when they were living in Georgia, for the reasons described infra. B. Plaintiff's additional arguments are meritless.
1. Plaintiff validly waived her right to counsel before the agency.
Plaintiff argues that ALJ Fulton "failed to: (1) advise [her] of the manner in which an attorney [could] aid in [her] proceedings; (2) of the possibility of free counsel or a contingency agreement . . . ; and (3) the limitation on attorney fees to 25[%] of past due benefits and required . . . approval of fees." (#26 at 5.) Plaintiff contends that ALJ Fulton's alleged failure to adequately advise her of her right to an attorney was particularly egregious in light of the fact that her "mental incompetence to legally advocate or defend herself at the second hearing is solidly documented in the transcript." Id. at 8.
The Social Security Act requires the SSA to:
notify [the] claimant in writing, together with the notice to such claimant of an adverse determination, of the options for attorneys to represent individuals in presenting their cases before the Commissioner of Social Security. Such notification shall also advise the claimant of the availability to qualifying claimants of legal service organizations which provide legal services free of charge.42 U.S.C. § 406(c); see also 20 C.F.R. § 404.1706. Citing the Seventh Circuit, the court has explained:
It practically goes without saying that "a claimant has a statutory right to counsel at disability hearings." Thompson v. Sullivan, 933 F.2d 581, 584 (7th Cir. 1999) (citing 42 U.S.C. § 406). . . . Not only must a claimant be informed of this right, but the claimant's waiver of counsel is ineffective unless the claimant receives "sufficient information to enable him [or her] to intelligently decide whether to retain counsel or proceed pro se." id. at 584. More particularly, a claimant must be informed of the benefits of procuring counsel, the prospect of either free or contingency based representation, and the statutory limitation of attorney's fees in disability cases. id.Baez v. Astrue, 550 F. Supp.2d 210, 216 (D. Mass. 2008); see also Riley v. Berryhill, No. 16-109637-DJC, 2017 WL 3749415, at *8 (D. Mass. August 30, 2017).
The SSA fully complied with the requirements of the Social Security Act. Plaintiff was informed of her right to counsel, as well as the benefits of securing counsel, the existence of legal service organizations providing representation free or change, and fee approval and contingency requirements, in writing twice before the June 2016 hearing. See, e.g., TR at 235-36, 241-42 (hearing notice dated April 20, 2016); 139-40, 144-45 (hearing notice dated May 31, 2016). Each hearing notice indicated as follows: "You may choose to have a representative help you. . . . Many representatives charge a fee. Some representatives charge a fee only if you receive benefits. Others may represent you for free. Usually, your representative may not charge a fee unless we approve it." Id. at 236, 140. As part of standard practice, a document, entitled "Your Right to Representation," attached to each notice further provided, in pertinent part:
You can have a representative, such as an attorney, help you when you do business with Social Security. . . . For your protection, your representative cannot charge or collect a fee from you without first getting written approval from us.Id. at 144-45, 241-42. The document further provided a toll-free telephone number that plaintiff could call with questions. Id. at 145, 242.
. . . .
Some organizations can help you find an attorney or give you free legal services if you qualify. Some representatives do not charge unless you receive benefits. Your Social Security Office has a list of organizations that can help you find a representative.
. . . .
To charge you a fee for services, your representative first must file either a fee agreement or a fee petition with us. . . . Usually, we will approve the agreement and tell you in writing how much your representative may charge as long as . . . [t]he fee you agreed on is no more than 25[%] of the past-due benefits or $6,000, whichever is less.
Plaintiff conceded in her brief to the Appeals Council that "ALJ Fulton did ask if she wanted a lawyer at the hearing, she said no, and [she] signed . . . a waiver." Id. at 263. In signing the waiver, she acknowledged that she had "received a list of organizations that provide legal services." Id. at 159.
Even if plaintiff's waiver was not effective, the First Circuit has held that "remand for want of representation is necessitated only where there is a showing of unfairness, prejudice[,] or procedural hurdles insurmountable by laymen." Riley, 2017 WL 3749415, at *9 (quoting Evangelista v. Sec'y of Health & Human Servs., 826 F.2d 136, 142 (1st Cir. 1987)). "A court may consider factors such as whether the 'ALJ was solicitous in attempting to assist the plaintiff' or the claimant was incoherent." Id. (quoting Evangelista, 826 F.2d at 142-43). "The ultimate question is whether the claimant 'was able to present his case adequately, and that the ALJ was sufficiently forthcoming to meet the attendant burden.'" Id. (quoting Evangelista, 826 F.2d at 143). Applying these principles, the court concluded in Riley that plaintiff suffered no prejudice—and, therefore, no remand was required—when the ALJ explained to the plaintiff "the purpose of the hearing, not[ed] that he was not bound by the SSA's earlier decision, [l]isted the evidence he would consider[,] and explain[ed] what issues he would determine." Id. "The ALJ also gave [the plaintiff] opportunities to ask questions[,] often clarified legal terms of art[,]" and gave plaintiff the opportunity to provide a closing statement before concluding the hearing. Id. The entire hearing lasted over one hour. Id.
Plaintiff was not prejudiced at the hearing in front of ALJ Fulton. Similar to the ALJ in Riley, ALJ Fulton explained to plaintiff the purpose of the hearing (specifically, why a new hearing needed to be conducted after Judge Senf's original hearing), the issues he would determine, and plaintiff's burden of proof. See, e.g., TR at 269, 274-76, 362-64. He gave plaintiff ample opportunity to ask questions, clarified legal terms, and allowed plaintiff to discuss any additional issues at the end of the hearing. See, e.g., id. at 289, 340-43, 374-68. He also elicited questions that would tend to show a common-law marriage, see, e.g., id. 340-43, 351, and allowed plaintiff to explain why she had not argued that she was in a common-law marriage back in 2002. See, e.g., id. at 280-87, 374-76. As in Riley, the hearing lasted over one hour. See id. at 269 (hearing began at 2:24 pm), 378 (hearing concluded at 4:06 pm).
There is also no evidence within the record that plaintiff was mentally incompetent at the hearing. While plaintiff noted that she had once been approved for disability benefits, the fact that she had previously waived her right to representation in front of ALJ Senf under similar circumstances cuts against plaintiff's argument. See Vargas-Colon v. Fundacion Damas, Inc., 864 F.3d 15, 24 (1st Cir. 2017) (quoting U.S. v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed augmentation, are deemed waived. It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work[.]")).
2. Plaintiff's claim that ALJ Fulton was not properly appointed is rejected because plaintiff never raised it during the administrative process.
Although plaintiff never raised the issue in front of the ALJ or the Appeals Council, plaintiff now contends that ALJ Fulton's decision should be reversed because he "had not been properly appointed and did not have legal authority to preside over [the] case or issue an unfavorable decision." (#26 at 11 (citations omitted).) Plaintiff maintains that it does not matter that she is just raising this argument now because it "was made within the four-year window for good cause . . . ." Id.
Plaintiff is mistaken. While "'one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case' is entitled to relief[,]" Lucia v. Secs. & Exh. Comm'n, 138 S. Ct. 2044, 2055 (2018) (quoting Ryder v. United States, 515 U.S. 177, 182-83 (1995)) (discussing appointment of ALJs before Securities and Exchange Commission), district courts within the circuit have rejected plaintiffs' SSA Appointments Clause claims where, as here, the plaintiff failed to make the challenge at the administrative level. See, e.g., Myers v. Comm'r of Soc. Sec., 450 F. Supp.3d 92, 102 (D. Mass. 2020); Blaney v. Saul, No. 18-cv-12009-ADB, 2020 WL 6162944, at *4 (D. Mass. Oct. 21, 2020); Phillip W. v. Saul, No. 2:19-cv-00258-JDL, 2020 WL 68301, at *2 (D. Me. Jan. 7, 2020); see also Lucia, 138 S. Ct. at 2055 (plaintiff had made a timely challenge to the appointment of an ALJ before the Securities and Exchange Commission when "he contested the validity [of the appointment] before the Commission" and continued to do so on appeal to the courts).
3. Plaintiff otherwise fails to show any impropriety relating to ALJ Fulton or the June 2016 hearing.
Plaintiff contends that the hearing in front of ALJ Fulton was deficient in the following, additional respects: 1) ALJ Fulton "failed to suggest the legal [option] of withdrawing her request" for review; 2) she was not given adequate time between her hearing notice and the June 2016 hearing (and therefore, "had scant time to seek a representative"); 3) ALJ Fulton "misidentified the notary as" plaintiff's sister-in-law, Ms. Holmes; and 4) the evidence at the hearing in front of ALJ Fulton should have been construed against the SSA because it had lost the transcript to ALJ Senf's original hearing. (#26 at 8, 10.)
Plaintiff's argument that ALJ Fulton failed to suggest withdrawing her request is undeveloped. Similar to her argument that she was not mentally competent to participate in the hearing, she cites no case law or otherwise develops her argument that ALJ Fulton was required to tell her she could withdraw. See Vargas-Colon v. Fundacion Damas, Inc., 864 F.3d at 24.
Plaintiff's argument that she was not given adequate time between the notice and the June 2016, hearing is also misplaced. While plaintiff contends that she was not given notice of the June 9, 2016, hearing until May 31, 2016, see #26 at 10, the record indicates that she was first given notice on April 20, 2016. (TR at 235.) This was significantly more than the 20-day notice requirement applicable in 2016. See 20 C.F.R. § 404.938(a), Code of Federal Regulations (2016), https://www.govinfo.gov/content/pkg/CFR-2016-title20-vol2/pdf/CFR-2016-title20-vol2-sec404-938.pdf.
The Federal Regulations were since amended to require at least seventy-five days' notice prior to the hearing. See 20 C.F.R. § 404.938(a).
The fact that ALJ Fulton incorrectly referred to Mr. Bornstein's sister by the name of the notary is irrelevant. Regardless of what he believed her name to be, ALJ Fulton analyzed the statement and provided an explanation for why he was giving it little weight.
Finally, plaintiff's argument that ALJ Fulton should have construed the evidence against the SSA fails. The Appeals Council has stated:
With regard to partially favorable decisions [like ALJ Senf's in the present case], if an Administrative Law Judge holds, for example, that a claimant is under a disability but finds that the period of disability began later than alleged, the Appeals Council will, upon remand, vacate only that part of the decision pertaining to the unfavorable period and affirm the favorable portion if the favorable action is supported by substantial evidence.Vacating the Administrative Law Judge's Decision When the Appeals Council Grants Review to Remand, HALLEX II-5-1-2, https://www.ssa.gov/OP_Home/hallex/II-05/II-5-1-2.html (last visited Feb. 16, 2021) (emphasis added). Because the Appeals Council was unable to tell whether ALJ Senf's decision was supported by substantial evidence, the Appeals Council had the discretion to remand the case to ALJ Fulton, who, in turn, had the discretion to make his own independent findings based on the evidence.
The only case plaintiff cites in support of her argument is the criminal case, Arizona v. Youngblood, 488 U.S. 51 (1988), which considered the extent to which the State was required to preserve evidentiary material under the Due Process Clause of the Fourteenth Amendment. Youngblood has no application to the case at bar, and plaintiff fails to develop her argument. See Vargas-Colon, 864 F.3d at 24.
4. The Appeals Council's decision to review ALJ Senf's October 2013 decision and the related November 2013 Notice of Award was proper.
Plaintiff argues that the Appeals Council "had no jurisdiction or legal right to review" her submissions because the deadline to appeal ALJ Senf's decision had already passed, and she sent her request for review in error. (#26 at 9.)
Specifically, plaintiff maintains that she had "no intention of risking [her] favorable decision" from ALJ Senf and that she informed ALJ Fulton that she "just wanted to take a look at the entitlement date." (#26 at 9.) However, she acknowledged to ALJ Fulton that she was aware that the hearing needed to be redone due to her request. See TR at 363-64.
The Federal Regulations provide that a social security applicant may request Appeals Council review of an ALJ decision by filing a written request within sixty days of the date she received notice of the hearing decision. 20 C.F.R. §404.968(a)(1). Even if the request for review is untimely, the Appeals Council may still review an ALJ decision if good cause for doing so exists. See 20 C.F.R. §404.911. The Appeals Council may find good cause to exist under a variety of circumstances, not limited to those specifically enumerated in the regulation. See 20 C.F.R. §404.911(b).
While ALJ Senf issued his decision on October 1, 2013, and plaintiff did not request review until December 26, 2013, putting her outside the 60-day window, the record is unclear as to when plaintiff actually received the decision. Furthermore, ALJ Senf's decision did not note the 2009 entitlement date. Therefore, it appears logical that the November 18, 2013, Notice of Award could have been used to determine timeliness. If this were the case, plaintiff would have been well within the 60-day timeframe. Even if this were not the case, it is plausible that the Appeals Council found "good cause" to extend plaintiff's deadline, given that she was proceeding pro se at that time.
5. Plaintiff otherwise fails to show any impropriety relating to the Appeals Council's decision.
Plaintiff argues that Appeals Officer, Jill Luther, who "denied [Appeals Council] review . . . was not authorized to make a decision" in the matter because "she was not a properly appointed official for the task." (#26 at 11-12.) Specifically, plaintiff contends that, if ALJs must be appointed pursuant to the Appointments Clause, then "the same must apply to [Appeals Officers like Ms. Luther because t]he idea of lower officers overruling higher officers" does not make sense. Id. at 12.
Plaintiff's argument that Ms. Luther "overruled" ALJ Fulton's decision is mistaken. Rather, Ms. Fulton simply "denied review" of ALJ Fulton's decision, making it the final decision of the Commissioner. See 20 C.F.R. § 404.981. Plaintiff also ignores the fact that the Federal Regulations clearly allow such action, and plaintiff makes no challenge to the regulations themselves. See 20 C.F.R. § 422.205(c) ("The denial of a request for review of a hearing decision . . . shall be by such appeals officer . . . or by such member . . . of the Appeals Council as may be designated in the manner as prescribed by the Chair or Deputy Chair."); Mass. v. Sebelius, 638 F.3d 24, 30 (1st Cir. 2011).
V. Conclusion and Order.
For the reasons stated, plaintiff's motion for order reversing Commission's decision (#26) is DENIED, and defendant's motion to affirm the Commissioner's decision (#29) is GRANTED. Judgment shall enter for the Commissioner of the Social Security Administration. February 22, 2021
/s/ M. Page Kelley
M. Page Kelley
Chief United States Magistrate Judge