Beaty v. Weinberger

• Decision Date: 23 April 1973
• Docket Number: No. 72-1356.,72-1356.
• Citation: 478 F.2d 300
• Parties: Annie J. BEATY, Individually and as next friend of Franklin T. Beaty and Tracy A. Beaty, minors, Plaintiffs-Appellees-Cross-Appellants, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

478 F.2d 300 (1973)

Annie J. BEATY, Individually and as next friend of Franklin T. Beaty and Tracy A. Beaty, minors, Plaintiffs-Appellees-Cross-Appellants, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellant-Cross-Appellee.

No. 72-1356.

United States Court of Appeals, Fifth Circuit.

April 23, 1973.

John W. Stokes, Jr., U. S. Atty., Julian M. Longley, Jr., Asst. U. S. Atty., Atlanta, Ga., Stanton Koppel, Civil Div., Morton Hollander, Chief, Appellate Sec., Kathryn H. Baldwin, Civil Div., Dept. of Justice, Washington, D. C., for appellant.

Kenneth G. Levin, Atlanta, Ga., for appellees.

Before TUTTLE, WISDOM and SIMPSON, Circuit Judges.

TUTTLE, Circuit Judge:

This action was brought under Section 205(g) of the Social Security Act, 42 U. S.C.A. § 405(g), for review of a final decision of the Secretary of Health, Education and Welfare, denying the claim of Annie J. Beaty, on behalf of her two illegitimate children, Franklin and Tracy, for children's insurance benefits. The claim was based on the social security earnings record of J. B. Bryant, a disabled worker conceded by the Secretary to be the children's natural father. Benefits were denied the children on the basis of the Secretary's finding that neither had been dependent upon Bryant at the time his period of disability began, a prerequisite to recovery by illegitimate children under the relevant provisions of the Act. Upon review the district court held that the record would not support the Secretary's finding of non-dependency as to one of the children, Franklin, but upheld the Secretary's determination with regard to the other child, Tracy, who had been born after the onset of Bryant's disability. We affirm in part and reverse in part.

This claim for insurance benefits is governed by Section 202(d) of the Act, 42 U.S.C.A. § 402(d), which in pertinent part provides that "Every child (as defined in section 416(e) of this title) of an individual entitled to old-age or disability insurance benefits" who "has filed application for child's insurance benefits," and "was dependent upon such individual—if such individual is living, at the time such application was filed . . . shall be entitled to a child's insurance benefit. . . ."

Section 216(e) of the Act, 42 U.S.C.A. § 416(e), provides that the term "child" means the child or legally adopted child of an individual. However, in order to be eligible for social security benefits the child must qualify under one of the criteria set forth in sections 216(h) (2) or 216(h) (3) of the Act, 42 U.S.C.A. § 416(h)(2) and § 416(h)(3). Though we treat of these statutes in greater detail below, it is sufficient for our purposes here to note that in order to be deemed eligible for the insurance benefits which they seek, the two illegitimate children in this case were obliged to meet the requirements of 42 U.S.C.A. § 416 (h) (3) (B) (ii) which provides for the recovery of benefits where "such insured individual is shown by evidence satisfactory to the Secretary to be the father of the applicant and was living with or contributing to the support of that applicant at the time such period of disability began."

Turning to the salient facts of this case, we note the following: On September 2, 1969, Annie J. Beaty, the mother of the two illegitimate children of J. B. Bryant, applied for insurance benefits in behalf of the children based on Bryant's earnings record. On the same day Bryant applied for disability insurance benefits and in a separate proceeding the Social Security Administration determined that Bryant had been under a disability, paranoid schizophrenia, since March 10, 1961 and awarded him benefits retroactive to September, 1968 pursuant to Section 223(b) of the Act, 42 U.S.C.A. § 423(b). Insurance benefits were denied to the children, however, on the grounds that, although Franklin and Tracy were Bryant's natural children, Bryant had not been contributing to their support at the time his disability began in March of 1961.¹ The hearing examiner concluded that Tracy, who had been born in 1966, could not possibly have been receiving support from Bryant, as required by statute, at the time Bryant's period of disability began in 1961. As to Franklin, who was born in 1960, and thus was not, because of date of birth, barred by the statutory exclusion which deprived Tracy of insurance benefits, the examiner concluded that the "reliable, probative, and substantial evidence of record" did not establish the existence of support payments from Bryant before the onset of his disability. This determination became the final decision of the Secretary on December 31, 1970, and claimant brought this action in the district court for review.

As noted, the district court reversed the determination of the Secretary with regard to Franklin's claim, but affirmed as to the denial of benefits to Tracy. In its present posture the case involves two distinct issues. Raised on direct appeal by the Secretary is the issue with regard to Franklin's claim as to whether there was substantial evidence in the record to support the Secretary's findings that Bryant had not been contributing to the child's support at the time of the onset of his disability. As to the denial of benefits to Tracy, which is the subject of Ms. Beaty's cross-appeal, the constitutional issue is raised: whether Section 416(h) (3) (B) (ii), which excludes the possibility that Tracy, born after his father's period of disability commenced, could ever receive child's insurance benefits on account of such disability constitutes a denial of equal protection to Tracy.

We deal initially with Franklin's claim. Before the Social Security hearing examiner, whose findings of fact were accepted in toto by the Secretary, appellant Beaty testified that from about the time of Franklin's birth in August, 1960, Bryant contributed approximately $10 twice each month for the child's support.² However, Bryant's social security earnings record for 1960 disclosed income of only $331 and for 1961 of $426. In view of this fact the examiner found it unlikely that with such minimal income Bryant would have been contributing $20 per month to the support of his illegitimate child. This conclusion was based on the presupposition that the income of $331 in 1960 and of $426 in 1961 had been evenly spread over the four quarters of each of those calendar years. In point of fact Bryant's income of $331 during 1960 had been received in the last three quarters of that year and his reported income of $426 during 1961 was all received in the first quarter. It is to be noted that Franklin was born during the third quarter of 1960. Bryant, of course, was subsequently determined to have been disabled as of March 10, 1961, and thus, for Franklin to be eligible for insurance benefits it was necessary for him to prove only that his father had been contributing to his support prior to that time. In the perspective from which we view Bryant's earnings record for 1960 and 1961 it does not seem so unlikely as the examiner concluded that Bryant could not have contributed $20 monthly to Franklin's support during the last four months of 1960 and certainly not unlikely that out of $426 earned during the first quarter of 1961 Bryant could not have contributed $20 per month to the child's support—a total of $60—until the onset of his disability in March of that year. Plainly Bryant's income for the months of January, February, and March, 1961 was much more than adequate for Bryant to have been making the $20 per month payments which Ms. Beaty claimed he had made.

A second basis which the government posits for denying Franklin's claim is the putative conflict between Ms. Beaty's testimony at the hearing and a prior written statement signed by her and considered along with the case. In filing her claim Ms. Beaty signed a statement to the effect that "Franklin Tony Beaty and Tracy A. Beaty are my children by J. B. Bryant. We have never lived together and he has not supported the children since 1957. The VA advised us to go to the court and file an acknowledgment of paternity and support agreement before we filed with the VA." This statement had been written out by a caseworker, later identified as Helen Wilson, who also prepared a statement for J. B. Bryant (which he signed) which said in part "Franklin Tony Beaty and Tracy Al Beaty are my children by Ms. Annie Jewel Beaty. I have never lived with her or the children and have not contributed to their support since 1957."

Since the first of these two children was born in August, 1960, and the second in 1966, it is plain that these statements could not mean what they purport to say. One may speculate as to whether the statements were meant to refer to 1967 or some other date, but in any event it is clear that the reference to 1957 was a scrivener's error. We note that the statements were not sworn to and, of course, neither was in the hand-writing of the affiant, but rather had been written out by the same case worker.³

In view of these circumstances we think that Ms. Beaty's sworn testimony at the hearing, to the effect that Bryant had paid her approximately $10 every 2 weeks after the first child was born, together with Bryant's affidavit to substantially the same effect, would have to prevail on the grounds that there was no substantial evidence on the record to support the hearing examiner's findings that Bryant had not contributed to Franklin's support prior to March 10, 1961. We, therefore, conclude that the district court's determination in this respect was correct.

We turn then to the equal protection issue raised by Ms. Beaty on cross-appeal concerning the denial of benefits to her son Tracy. The issue arises within the framework of the following statutory scheme for awarding children's insurance benefits. As noted, the entitling provision is 42 U.S.C.A. § 402(d) (1). In pertinent part it provides for insurance benefits to every...