Allen v. Bowen

• Decision Date: 08 June 1987
• Docket Number: No. 85 C 8031.,85 C 8031.
• Citation: 657 F. Supp. 148
• Parties: Edmund ALLEN, Gerome Allen and Henri Allen, by Geraldine Allen, their mother and next friend, Plaintiffs, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Northern District of Illinois

657 F. Supp. 148

Edmund ALLEN, Gerome Allen and Henri Allen, by Geraldine Allen, their mother and next friend, Plaintiffs, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant.

No. 85 C 8031.

United States District Court, N.D. Illinois, E.D.

March 10, 1987.

Reconsideration Denied June 8, 1987.

Jean Goodwin, Englewood Office, Legal Assistance Foundation of Chicago, Chicago, Ill., for plaintiffs.

James P. White, Asst. U.S. Atty., Michael T. Lamb, Asst. Regional Counsel, Region V, U.S. Dept. of Health and Human Services, Chicago, Ill., for defendant.

MEMORANDUM AND ORDER

MORAN, District Judge.

Henri, Gerome and Edmund Allen, by their mother and next friend Geraldine Allen, seek Social Security child's insurance benefits under 42 U.S.C. ? 402(d) on the wage record of the late Henry Ellis. They appeal from the Secretary's determination that they have not sufficiently proven their status as Henry's children under either 42 U.S.C. ?? 416(h)(2)(A) or 416(h)(3)(C)(ii). They ask for reversal and an award of benefits. The Secretary admits that the administrative law judge (ALJ) erroneously imposed a burden of clear and convincing proof on claimants for the determination under ? 416(h)(3)(C)(ii) and moves to remand that portion of the claim for reconsideration. However, the Secretary moves for summary judgment on the portion under ? 416(h)(2)(A).

Since the ALJ made two additional errors of law which affect both portions of the claim, this court's only alternative is to reverse both portions. However, a remand for reconsideration proves to be unnecessary. The proper burden of proof under ? 416(h)(3)(C)(ii) is a preponderance of the evidence. Since the ALJ implicitly concluded that claimants had shown by a preponderance of the evidence the elements necessary under that section to establish child status, and since the contrary conclusion on this record could not be supported by substantial evidence, we direct an award of benefits.

BACKGROUND

A claimant may establish status as a child of a wage earner through either of two alternative routes. He may show that he would take as a child under the law of intestate succession of the state in which the wage earner was domiciled, ? 416(h)(2)(A) (the "state law alternative"), or he may demonstrate "by evidence satisfactory to the Secretary" that the wage earner was his father or mother and that the wage earner either lived with him or contributed to his support, ? 416(h)(3)(C)(ii) (the "federal alternative"). See generally Schaefer v. Heckler, 792 F.2d 81 (7th Cir. 1986).

At least seventeen persons claim to be a son or daughter of Henry Ellis, although fortunately not all of them are seeking child's benefits before this court. Eight of these persons are children by his widow Nellie. Two of these, Shaun and Alonda Ellis, currently receive child insurance benefits through their father as wage earner.¹ Though Henry and Nellie had lived apart for quite some time before his death, they were never divorced. He apparently had another six children by Martha Gates, with whom he cohabited from about 1956 to 1966. One of these children, Sylvester Gates, testified on claimants' behalf at their hearing.

The instant case concerns the nature and extent of Henry's relationship with Geraldine (ne? Epperson) Allen and her three children. She states, and considerable evidence corroborates her statement, that they met in 1973 while she was still married to but separated from Isaac Allen, and that she and Henry lived together from 1974 until his death in 1982. She did not divorce Isaac Allen until 1979, but the divorce decree expressly states that no children were born to the marriage. Isaac Allen has also testified by affidavit that he and Geraldine had no children. Henri, Gerome and Edmund Allen were born in August 1974, January 1977 and December 1977, respectively. No father is listed on their birth certificates. Geraldine says they are Henry's sons. Henri and Gerome both testified at the hearing, each saying that Henry Ellis was his father, who lived with them and who they called "Daddy." The ALJ believed, however, that the Illinois Dead Man's Act, Ill.Rev.Stat. ch. 110, ? 8-201, required him to disregard most of their and their mother's testimony.

Henry Ellis' sisters Evelyn Ellis and Elizabeth Miller, brother Clinton Ellis, son Sylvester Gates and niece Shirley Miller also all testified that Henry and Geraldine lived together; that Henry repeatedly, consistently and constantly acknowledged and treated Henri, Gerome and Edmund as his sons; and that he contributed food and clothing to the boys, and various items to the household. Henry's obituary, apparently approved by his sisters and his widow, and distributed at the mortuary for his funeral, listed Henri, Gerome and Edmund as his sons (R. 523). The proportion of Henry's income which went to the support of these three boys could not be established, but only because Henry's income after about 1975 could not be established. Henry was employed at Sondag Chevrolet in Des Plaines, Illinois, from about 1966 to 1973 or 1974. After he was laid off from that job, he never held another. However, he seems to have supported himself in part by buying used cars and reselling them in the neighborhood of Roosevelt and Kedzie, and in part by gambling.

Geraldine has received Aid to Families with Dependent Children (AFDC) benefits since the birth of Henri. She testified that when she first applied, she invented the name "Antoine Sims" to list as Henri's father for fear that the agency would pursue Henry in court for child support. She nevertheless named the boy to strongly suggest his father's name (Henri Burchion Allen from Henry Burch Ellis). By 1981 her fear had abated sufficiently so that she listed Henry as the father of Gerome and Edmund with the AFDC, and by 1983 corrected the entry for Henri. Nevertheless, believing that she would lose her AFDC benefits if she admitted that Henry was living with and partially supporting them, she consistently reported to the agency that she did not know his whereabouts. Actually, she said, Henry lived with them and contributed money ($50 to $100 per month), food, clothing and other items regularly. Henry did not apply for public aid himself until about three months before his death, after he had fallen ill. According to Geraldine, he then listed an address of a friend as his address, to avoid jeopardizing her benefits.

In a lengthy opinion the ALJ held that Henri, Gerome and Edmund had failed to meet the burden of proof necessary to establish that they are the sons of Henry Ellis. Against the testimony of Geraldine, Henri and Edmund Allen, Evelyn and Clinton Ellis, Elizabeth and Shirley Miller, and Sylvester Gates, the ALJ noted that AFDC and Chicago Housing Authority records indicated that Henry Ellis did not live with Geraldine Allen, that Geraldine's public aid caseworker testified that he believed Geraldine when she said that no man was living with her, and that Nellie Ellis, Henry's widow, had submitted a statement to the Social Security Administration which said:

My husband had no other children under the age of 18. I believe this is so ... I don't trust my husband's family. They never tell the truth ...

(R. 526). The ALJ also thought that Nellie Ellis had said that Henry did not live with Geraldine (R. 24); in fact, her statement includes no comment about where Henry resided after they parted.

The ALJ's route to his holding is difficult to follow. Some portions of the opinion indicate that he believed that Henry Ellis was the father of the claimants and lived with Geraldine Allen (e.g., R. 17, 18). Notably, he specifically concluded (R. 11) that both Geraldine and Henry had deceived the Illinois Department of Public Aid and given fraudulent information to both that agency and the Chicago Housing Authority. He repeatedly castigated them for this deceit (R. 11, 20, 24), and further discounted most of Geraldine's testimony because he doubted her credibility (R. 24).

Nevertheless, he held that plaintiffs had not made their case. The apparent contradiction may be explained by his evidentiary rulings, which gave the claimants a distinctly uphill battle. As noted above, he barred some testimony from Henri, Gerome and Geraldine under the Dead Man's Act (R. 14-15, 23). He also ruled that each step of their claim required "clear and convincing" proof: clear and convincing evidence to overcome the presumption that the children were Isaac Allen's because they were born while Geraldine was still legally married to him (R. 10, 21); clear and convincing evidence of the competency of any interested party, as defined by the Dead Man's Act (R. 16); clear and convincing evidence of heirship, not only to satisfy the Illinois law method of proof under ? 416(h)(2)(A) (R. 21) but also the standard for the federal alternative method of proof under ? 416(h)(3)(C)(ii) (R. 22, 25); clear and convincing evidence again to establish either that Henry was living with the children or supporting them, for purposes of the federal alternative (R. 24, 25).

Moreover, he defined a clear and convincing burden of proof as proof beyond a reasonable doubt (R. 16, 23, 24). He may have thought that that level of proof required a written acknowledgment of paternity. In any case, his only conclusion directly relating to proof of paternity is that claimants failed to show by clear and convincing evidence that a deathbed acknowledgment of paternity which they introduced actually came freely and knowingly from Henry Ellis (R. 24). (Claimants on appeal do not challenge the decision to reject that document.) He also held that claimants had failed to meet their burden of proof either that Henry had lived with them (R. 24) or adequately supported them (R. 24-25). On the latter, he found a reasonable doubt whether claimants had proved that Henry's income was low enough to make the small contributions which the ALJ apparently...