Gillett-Netting v. Barnhart

• Decision Date: 09 June 2004
• Docket Number: No. 03-15442.,03-15442.
• Citation: 371 F.3d 593
• Parties: Rhonda GILLETT-NETTING, on her own behalf and on behalf of her minor children; Juliet O. Netting and Piers W. Netting., Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

371 F.3d 593

Rhonda GILLETT-NETTING, on her own behalf and on behalf of her minor children; Juliet O. Netting and Piers W. Netting., Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.

No. 03-15442.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 2004.

Filed June 9, 2004.

Hagit M. Elul, Hughes, Hubbard & Reed, New York, NY, briefed and argued the cause for the plaintiff-appellant. William T. Bissett, Hughes, Hubbard & Reed, New York, NY, and Priscilla J. Smith, Center for Reproductive Rights, New York, New York, were also on the briefs.

Sharon Swingle, U.S. Department of Justice, Washington, DC, briefed and argued the cause for the defendant-appellee. William Kanter, U.S. Department of Justice, Washington, DC, was also on the briefs.

Appeal from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding, D.C. No. CV-02-00014-JMR.

Before: B. FLETCHER, REINHARDT, Circuit Judges, and RESTANI, Judge.^*

BETTY B. FLETCHER, Circuit Judge:

Plaintiff-Appellant Rhonda Gillett-Netting ("Gillett-Netting"), on her own behalf and on behalf of her minor children Juliet O. Netting and Piers W. Netting, appeals the district court's grant of summary judgment for the Commissioner of Social Security ("Commissioner"). The district court affirmed the Commissioner's decision holding that Juliet and Piers are not entitled to child's insurance benefits based on the earnings of their deceased father, Robert Netting ("Netting"). Ten months after Netting died, his wife conceived Juliet and Piers using sperm that he deposited before undergoing chemotherapy for cancer. Gillett-Netting argues that the district court erred in holding that Juliet and Piers are not eligible for child's insurance benefits because they are not Netting's children under the Social Security Act ("Act") and were not dependent on Netting at the time of his death. Because Juliet and Piers are Netting's legitimate children under Arizona law, and therefore are deemed dependent on Netting for child's insurance benefits, we reverse the decision of the district court and remand to the district court with instructions to further remand to the Commissioner for an award of benefits.¹

I. BACKGROUND

In December 1994, Netting was diagnosed with cancer. At the time, he and his wife, Gillett-Netting, were trying to have a baby together, but Gillett-Netting suffered from fertility problems that had caused her to miscarry twice. Because doctors advised Netting that chemotherapy might render him sterile, he delayed the start of his treatment for several days so that he could deposit his semen at the University of Arizona Health Sciences Center, where it was frozen and stored for later use by his wife. Netting quickly lost his battle with cancer. He died on February 4, 1995 before his wife was able to conceive. Earlier, Netting confirmed that he wanted Gillett-Netting to have their child after his death using his frozen sperm. In-vitro fertilization of Gillett-Netting's eggs with Netting's sperm was undertaken successfully on December 19, 1995. The resulting embryos were transferred to Gillett-Netting on December 21, 1995, and Juliet and Piers Netting were born on August 6, 1996.

On August 19, 1996, Gillett-Netting filed an application on behalf of Juliet and Piers for Social Security child's insurance benefits based on Netting's earnings. The Social Security Administration (SSA) denied the claim initially and upon reconsideration, and Gillett-Netting timely filed a request for a hearing before an Administrative Law Judge (ALJ). Because neither the material facts nor the claimants' credibility were disputed, the parties agreed to submit the case to the ALJ without an administrative hearing.

The ALJ denied Gillett-Netting's claim, holding that Juliet and Piers are not entitled to benefits because they were not dependent on Netting at the time of his death. The ALJ held that "the last possible time to determine dependents [sic] on the wage earner's account is the date of the death of the wage earner." Therefore, children conceived after the wage earner's death cannot be deemed dependent on the wage earner. The Social Security Appeals Council denied Gillett-Netting's request for review, and the ALJ's decision became the final decision of the Commissioner.

Gillett-Netting filed a complaint in district court, alleging that the decision denying Juliet and Piers benefits was not supported by substantial evidence, was not in accordance with the law, and denied them equal protection of the laws.² The parties filed cross-motions for summary judgment, and the district court granted summary judgment for the Commissioner. The district court held that Juliet and Piers do not qualify for child's insurance benefits because they are not Netting's "children" under the Act and they were not dependent on Netting at the time of his death. See Gillett-Netting v. Barnhart, 231 F.Supp.2d 961, 965-69 (D.Ariz.2002). Additionally, the district court held that Juliet's and Piers's right to equal protection of the laws was not violated by applying the Act to deny them child's insurance benefits. Id. at 969-70. After the district court denied Gillett-Netting's motion for reconsideration, she timely filed an appeal to this Court.

II. STANDARD OF REVIEW

We review de novo the district court's decision upholding the denial of social security benefits. McCartey v. Massanari, 298 F.3d 1072, 1075 (9th Cir.2002). The Commissioner's denial of benefits may be set aside when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record. Id.

III. DISCUSSION

Developing reproductive technology has outpaced federal and state laws, which currently do not address directly the legal issues created by posthumous conception. Neither the Social Security Act nor the Arizona family law that is relevant to determining whether Juliet and Piers have a right to child's insurance benefits makes clear the rights of children conceived posthumously. Our task is to determine whether Juliet and Piers have a right to child's insurance benefits under the law as currently formulated.³

A. Demonstrating Entitlement to Child's Insurance Benefits

Under the Act, every child is entitled to benefits if the claimant is the child, as defined in 42 U.S.C. § 416(e), of an individual who dies fully or currently insured; the child or the child's representative files an application for benefits; the child is unmarried and a minor (or meets disability requirements) at the time of application; and the child was dependent on the insured wage earner at the time of his death. 42 U.S.C. § 402(d)(1); Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir.1987). It is undisputed that Netting was fully insured under the Act when he died, that Juliet and Piers are his biological children and are unmarried minors, and that Gillett-Netting filed an application for child's insurance benefits on their behalf. Because we conclude that Juliet and Piers are Netting's legitimate children, they are considered to have been dependent under the Act and are entitled to benefits.

B. Juliet and Piers are Netting's Natural, Biological Children

The Act defines "child" broadly to include any "child or legally adopted child of an individual," as well as a stepchild who was the insured person's stepchild for at least nine months before the insured person died, and a grandchild or stepgrandchild of the insured person under certain circumstances. See 42 U.S.C. § 416(e). Courts and the SSA have interpreted the word "child" used in the definition of "child" to mean the natural, or biological, child of the insured. See, e.g., Weinberger v. Salfi, 422 U.S. 749, 781 n. 12, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) (noting that a "natural or adopted child" of a wage earner need not meet the nine-month time requirement to which stepchildren are subject); Tsosie v. Califano, 630 F.2d 1328, 1333 (9th Cir.1980) ("Under § 416(e), the term `child' includes a person's natural children and his legally adopted children."); 20 C.F.R. § 404.354 (stating that a claimant may be "entitled to benefits as [an insured person's] child, i.e., as a natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child").

The Commissioner argues and the district court held that "child" is further defined by 42 U.S.C. §§ 416(h)(2), (3), and that Juliet and Piers cannot be considered the children of Netting unless they meet the requirements of one of these provisions.

These sections were added to the Act to provide various ways in which children could be entitled to benefits even if their parents were not married or their parentage was in dispute. They have no relevance to the issue before us. As the Fourth Circuit explained "[a]n illegitimate claimant may establish that he is a `child' for eligibility purposes under either of three critical provisions of the Act" in § 416(h). McMillian by McMillian v Heckler, 759 F.2d 1147, 1150(4th Cir.1985) (emphasis added).

Until 1965, § 416(h)(2) provided the sole means by which illegitimates could establish entitlement to benefits as dependent children, with § (h)(2)(A) the primary vehicle. Under that provision, an illegitimate claimant could establish entitlement to benefits by proving his entitlement to inherit from the insured wage earner as a "child" under the intestate succession law of the state of the insured's domicile. In 1965, § (h)(3)(C) was added specifically to provide other means by which entitlement might be established.

Id. at 1152.

Under the current version of § 416(h), a claimant whose parentage is disputed is deemed to be the child of an insured individual if: (1) the child would be entitled to take an intestate share of the individual's property under the laws of the state in which the individual resided at death; (2) the child's parents went through a...