679 F.2d 623 (6th Cir. 1982), 80-1489, Childress v. Secretary of Health and Human Services

Docket Nº:80-1489.
Citation:679 F.2d 623
Party Name:Garner CHILDRESS, on behalf of Patrick Childress, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
Case Date:May 28, 1982
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 623

679 F.2d 623 (6th Cir. 1982)

Garner CHILDRESS, on behalf of Patrick Childress, Plaintiff-Appellant,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 80-1489.

United States Court of Appeals, Sixth Circuit

May 28, 1982

Argued Dec. 16, 1981.

Page 624

Flossie Weill, Weill, Ellis, Weems & Copeland, Chattanooga, Tenn., for plaintiff-appellant.

John H. Cary, U. S. Atty., Byron R. Trauger, Asst. U. S. Atty., Chattanooga, Tenn., Holly Grimes, Washington, D. C., for defendant-appellee.

Before BROWN and JONES, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

PHILLIPS, Senior Circuit Judge.

This action involves a claim for social security benefits on behalf of the illegitimate son of a deceased fully insured wage earner. Patrick Childress, the claimant, maintains that he is a "child" of the wage earner within the meaning of 42 U.S.C. § 416(h)(2)(A) 1 or § 416(h)(3)(C)(ii), 2 and, therefore, is entitled to benefits under 42 U.S.C. § 402(d)(1) and § 402(d)(3). 3

The claimant's mother, Ms. Garner Childress, filed an application for child's insurance benefits with the Social Security Administration in October 1975. The claim was denied on March 11, 1976. She requested reconsideration and the claim again was denied on December 21, 1976. She did

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not request a hearing at that time. 4 In 1977 the mother of claimant again filed for insurance benefits. This application and request for reconsideration were denied. In June 1978 she requested a hearing before an administrative law judge. A hearing was held in September 1978, and the administrative law judge rendered his opinion in January 1979, finding that the claimant was the biological son of the deceased wage earner but that he was not entitled to benefits because there had been no satisfactory showing that the wage earner had made regular and substantial contributions to the claimant's support, according to the Social Security Administration's interpretation of 42 U.S.C. § 416(h)(3)(C)(ii). On February 27, 1979, the Appeals Council refused to review the decision.

The district court affirmed the decision of the Secretary in January 1980. The claimant's motion to alter or amend the judgment was denied by the district court in May 1980. A timely appeal was filed in June 1980.

The district court did not have the benefit of the decision of this court in Boyland v. Califano, 633 F.2d 430 (6th Cir. 1980), rendered May 29, 1980. The Boyland rule was reaffirmed in Parker v. Schweiker, 673 F.2d 160 (6th Cir. 1982). Because we find that Boyland and Parker control the outcome in this case we reverse and remand with instructions that the payments be made to the claimant.

I

It is undisputed that Patrick Childress ("the claimant") is the biological son of the deceased wage earner, Gary Rounsaville, and that Patrick is the illegitimate son of Gary Rounsaville and Garner Childress. Patrick was born in July 1967, when both parents were teenagers, living with their parents in the same apartment building in Chattanooga, Tennessee. In May 1969 the wage earner, Gary Rounsaville, married Lillie Elaine Reese. A legitimate child was born to them in June 1969. The wage earner graduated from high school in the month when the legitimate child was born. Shortly thereafter the wage earner moved to Atlanta, Georgia, with his wife and legitimate son. The claimant Patrick and his mother continued to live in Chattanooga with Patrick's maternal grandparents.

After he moved to Atlanta, Rounsaville frequently returned to Chattanooga to visit Patrick and Ms. Childress.

The record establishes that the deceased wage earner also contributed money to Patrick's support. The claimant, his mother and grandmother, and several of the wage earner's family members all testified or submitted statements to the effect that the wage earner contributed $15-$20 every month. The ALJ did not credit any of this evidence.

The ALJ concluded that "the claimant in this case has not shown by satisfactory evidence that the claimant was receiving regular and substantial contributions from the wage earner." He supported his conclusion by noting that there was no documentation of the contributions, no indication of them on Garner Childress's applications before the Tennessee Department of Human Services for Aid to Families with Dependent Children, and an inconsistency with the first application of the claimant regarding the amounts of the contributions.

In applying the "regular and substantial contributions" standard, the ALJ followed Social Security Ruling 77-31 (Cumulative Bulletin, 1977, p. 19), and rejected the argument of claimant, based on Santiago v. Mathews, 431 F.Supp. 1213 (E.D.N.Y.1977), that "support need not be regular and substantial."

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The Appeals Council denied review and affirmed the application of the ALJ of the "regular and substantial" test, stating that "(t)he administrative law judge is not bound by a court decision in another jurisdiction and correctly followed the Social Security Ruling." This decision became the final decision of the Secretary, subject to review by the courts. 5

In affirming the decision of the Secretary, the district court approved the use by the ALJ of the regular and substantial test and found that the conclusion of the ALJ under that test was supported by substantial evidence.

II

The Social Security Act ("the Act") allows insurance benefits for the illegitimate children as well as the legitimate children of a fully insured deceased wage earner. See 42 U.S.C. §§ 402(d)(1), 416(e), 402(d)(3) and 416(h). In order to qualify for support, however, a child must have been "dependent" on the wage earner at the time of his death. 42 U.S.C. § 402(d) (1)(C). Legitimate children are "deemed dependent" under the Act. 42 U.S.C. § 402(d)(3). According to the same code section, an illegitimate child will be deemed "legitimate", and thus "deemed dependent", if he can show he is a "child" of the wage earner within the meaning of 42 U.S.C. § 416(h)(2)(B) or § 416(h)(3). An applicant for benefits will also be deemed a "child" of the wage earner if he could inherit personal property from the wage earner under the intestacy laws of the state of the wage earner's domicile at the time of his death. 42 U.S.C. § 416(h)(2)(A). An applicant who is a "child" under this section will also be deemed "legitimate" under § 402(d)(3) of the Act and thus will enjoy the presumption of dependency. Mathews v. Lucas, 427 U.S. 495, 498-99 & nn. 1 & 2, 514-15 & n. 17, 96 S.Ct. 2755, 2758-59 & nn. 1 & 2, 2766-67 & n.17, 49 L.Ed.2d 651 (1976). Jimenez v. Weinberger, 417 U.S. 628, 631 n. 2, 94 S.Ct. 2496, 2499 n. 2, 41 L.Ed.2d 363 (1974). 6

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The claimant, Patrick Childress, has not been legitimated under the laws of either Georgia, the domicile of the wage earner, see Ga.Code §§ 74-101, 74-103, or Tennessee, the domicile and place of birth of the claimant, see T.C.A. §§ 36-302, 36-303 and 36-307. Nor has the claimant acquired the status of a "child" under 42 U.S.C. § 416(h)(2)(B) (marriage by parents that would be valid except for nonobvious legal impediments), or 42 U.S.C. § 416(h)(3)(C)(i) (written acknowledgment of paternity by father, court decree of paternity or court order of support). In order to qualify for the presumption of dependency, the claimant must show that he is a "child" within the meaning of either 42 U.S.C. § 416(h)(2)(A) or 42 U.S.C. § 416(h)(3)(C)(ii).

Even if a claimant does not qualify for the presumption of dependency, that claimant still may prove dependency. Section 416(h)(3)(C)(ii)...

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