Gray v. Richardson

Decision Date28 February 1972
Docket NumberCiv. No. C 68-374.
Citation340 F. Supp. 680
PartiesJeanette GRAY, Plaintiff, v. Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant.
CourtU.S. District Court — Northern District of Ohio

John L. Wolfe, Hershey, Browne, Wilson, Steel, Cook & Wolfe, Akron, Ohio, for plaintiff.

Robert R. Bauer, Asst. U. S. Atty., Cleveland, Ohio, for defendant.

MEMORANDUM AND ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT

KALBFLEISCH, Senior District Judge.

This is a suit under § 205 of the Social Security Act (42 U.S.C. § 405(g)) for judicial review of a final decision of the Secretary of Health, Education and Welfare. Both parties herein have moved for summary judgment.

On March 21, 1969, this Court remanded the case to the Secretary of Health, Education and Welfare for the taking of further evidence, to wit, the taking of further blood tests of both the wage earner, Freddy Gray, and his alleged daughter, Tamara Lynn Gray. (For additional facts, see the March 21, 1969 and May 14, 1969 memoranda and orders, copies of which are appended hereto.)

Pursuant to the remand order, the Secretary requested the wage earner to submit to another blood test, which he refused to do. The wage earner died on February 22, 1970.

In accord with the remand order, the Secretary reopened the case and held another hearing on March 24, 1971. After receiving certain new evidence, the Secretary reaffirmed his prior decision. This new evidence included: (1) a Release from Administration of the estate of Freddy Gray (Ex. No. 36), (2) the Record of Proceedings, Ohio Bureau of Workmen's Compensation, and (3) the testimony of a Dr. James E. Fleming, who gave his opinion on the medical evidence in the record.

The Release from Administration merely listed Tamara Lynn as the child of the deceased wage earner. Ohio Revised Code § 2113.03, on the application of an interested party and after publication, relieves an estate of less than $3,000 in assets from probate. However, in order to obtain this release, there was no contested proceeding on the paternity issue resulting in a specific factual finding as to Tamara Lynn's paternity. See the Court's memorandum and order of March 21, 1969.

Doctor Fleming, an internist and instructor at Case Western Reserve Medical School, testified that on the basis of the medical evidence in the record it was unlikely that the wage earner was the father of Tamara Lynn. He also stated that the blood typing of the wage earner and Tamara Lynn as it appears in the record was inadequate to make a determination about paternity. He also stated that if ejaculatory fluid was negative as demonstrated after the vasectomy performed in 1950 on the wage earner, it was impossible for Freddy to have fathered a child in 1962. (For a full analysis of the vasectomy evidence, see the March 21, 1969 memorandum and order.)

Section 216(h) (2) (A) of the Social Security Act (42 U.S.C. § 416(h) (2) (A)) provides:

"In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this subchapter, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, * * *. Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such."

None of the documents — the order of the Common Pleas Court of Summit County, the Application for Release from Administration, the Record of Proceedings of the Ohio Bureau of Workmen's Compensation — listing Tamara Lynn as the child of the wage earner are the result of a proceeding that is "binding on the Secretary or on this Court for the purposes of determining whether Tamara Lynn Gray is the child of the wage earner and whether Tamara Lynn Gray is entitled to child's benefits under 42 U.S.C. § 402(d)." (Memorandum and order of March 21, 1969.) See Dowell v. Gardner, 386 F.2d 809 (6th Cir. 1967); Cain v. Secretary of Health, Education and Welfare, 377 F.2d 55 (4th Cir. 1967); Cruz v. Gardner, 375 F.2d 453 (7th Cir. 1967); Old Kent Bank & Trust Company v. United States, 362 F.2d 444 (6th Cir. 1966); Schultz v. Celebrezze, 267 F.Supp. 880 (N.D.Ind.1967); also Ashley v. Ashley, 118 Ohio App. 155, 193 N.E.2d 535, 25 O.Op.2d 13, 15-16 (1962); and the memoranda and orders of March 21, 1969 and May 14, 1969. The Secretary is only bound by the decisions of state courts "if a state court has conducted a hearing to determine legitimacy and has made express findings under its state law." (Memorandum and order of March 21, 1969). There is no such decision herein from an Ohio court.

Of the three new cases cited by the plaintiff in her brief in support of her position that ex parte nonspecific orders are binding on the Secretary, two of the cases, Cruz v. Celebrezze, 255 F. Supp. 665 (E.D.Wis.1966), and Cain v. Gardner, 256 F.Supp. 155 (S.C.1966) were reversed on appeal (375 F.2d 453 (7th Cir. 1967), cert. denied 389 U.S. 886, 88 S.Ct. 160, 19 L.Ed.2d 184; and Cain v. Secretary of Health, Education and Welfare, 377 F.2d 55 (4th Cir. 1967).) As to the third case, Snell v. Gardner, Secretary of Health, Education and Welfare, 275 F.Supp. 645 (E.D.La. 1967), rev'd on other grounds 416 F.2d 840, the portion relied upon is dictum and does not support plaintiff's position in any way.

The Secretary's determination that Tamara Lynn is not the child of the wage earner is final if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is such evidence that a reasonable mind would accept to support a decision. King v. Finch, 313 F.Supp. 909, 911 (N.D.Ohio, E.D.1970); Howard v. Finch, Civil No. C 69-280 (N.D.Ohio, E.D., filed March 26, 1971).

In Ohio the law is clear that every child born during the existence of a lawful marriage is presumed by law to be legitimate; however, this presumption is not conclusive and can be rebutted by clear and convincing evidence that the husband could not be the father of the child. State ex rel. Walker v. Clark, 144 Ohio St. 305, 58 N.E.2d 773 (1944); State v. Carter, 175 Ohio St. 98, 191 N.E.2d 541 (1963); 7 Ohio Jur. 2d § 60; also Rose v. Rose, 16 Ohio App.2d 123, 242 N.E.2d 677 (1968); Quasion v. Friedman, 110 Ohio App. 166, 169 N.E.2d 28 (1959); McGhee v. McGhee, (App.) 64 N.E.2d 254, 45 Ohio Law Abst. 465 (1945); Ashley, supra.

In this case, through letters and answers to written questions, the Secretary had before him the substantially uncontradicted statements of one Dr. McCready, a Barberton urologist, that he performed a bilateral vasectomy on Freddy Gray for the purpose of making him sterile and that the ejaculatory fluid was negative when checked on December 27, 1950 and September 7, 1962 for spermatozoid. Plaintiff's attorney, although practically invited to do so, never deposed or subpoenaed Dr. McCready.

While a vasectomy is not a one hundred per cent foolproof operation, there is no competent evidence herein that would substantially discredit Dr. McCready's conclusion that Freddy was sterile. It is the rankest speculation on the record herein to suggest, as plaintiff's attorney did, that the wage earner on the aforementioned test dates gave Dr. McCready someone else's ejaculatory fluid to test. Dr. Fleming, in commenting on the evidence received from Dr. McCready, stated in effect that the likelihood of Freddy's fathering a child after 1950 was extremely slight. Of course, neither doctor did say, nor could he have said, that it was entirely beyond the realm of possibility that Freddy could not have been the father of Tamara Lynn.

This Court concludes that the Secretary's decision herein is supported by substantial evidence. Thus, as there no longer appears to be any possibility of clearly and conclusively showing nonpaternity, the Court holds that the decision of the Secretary after this Court's remand is supported by substantial evidence.

It is ordered that the defendant's motion for summary judgment is granted and that the decision of the Secretary of Health, Education and Welfare is affirmed and the complaint is dismissed.

APPENDIX

MEMORANDUM AND ORDER OF MARCH 21, 1969 RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT

This is a suit under § 205(g) of the Social Security Act (42 U.S.C. § 405(g)) for judicial review of a final decision by the Secretary of Health, Education and Welfare.

The proceedings leading to the request for judicial review in this case are as follows: Freddy Gray, the individual on whose earnings record the benefits are claimed, filed an application for disability insurance benefits on January 22, 1962. A period of disability was established beginning November 4, 1960 and benefits were awarded effective June 1961. On December 28, 1962 plaintiff filed an application for child's benefits on behalf of Tamara Lynn Gray, a minor, under § 202(d) of the Act (42 U.S. C. § 402(d)). The application was denied because the Secretary found that Tamara Lynn was not the child of the wage earner. Plaintiff seeks reversal of that finding. Plaintiff and the Secretary have filed cross-motions for summary judgment.1

The parties are in agreement upon all but one critical fact. The plaintiff, Jeanette Gray, and the wage earner, Freddy Gray, were ceremonially married on August 27, 1960. Freddy had been married once previously in April of 1945; this marriage resulted in the birth of two children and ended in divorce in September of 1957. After Freddy's marriage to plaintiff the couple lived together in Barberton, Ohio, until they separated in January of 1961.

At the hearings before the Secretary, plaintiff testified that Freddy occasionally visited her during their separation and that he would stay with her for a period of...

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3 cases
  • Pyeatte v. Pyeatte
    • United States
    • Arizona Court of Appeals
    • March 29, 1974
    ...Sterility 187 (1951).5 Other courts have upheld trial court rulings of non-paternity based upon evidence of sterility. Gray v. Richardson, 340 F.Supp. 680 (N.D.Ohio 1972); Hughes v. Hughes, 125 Cal.App.2d 781, 271 P.2d 172 (1954).6 See also Annot., 104 A.L.R. 84, 85 which contains the follo......
  • Transport Ins. Co. v. Michigan Mutual Liability Ins. Co.
    • United States
    • U.S. District Court — Western District of Michigan
    • March 21, 1972
  • Gray v. Richardson, 72-1416.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • March 1, 1973
    ...Judge. PHILLIPS, Chief Judge. The legitimacy of a minor child is the issue presented in this Social Security case. The District Court, 340 F.Supp. 680, upheld the decision of the Secretary to the effect that the child is not the daughter of the wage earner. We The child is Tamara Lynn Gray,......

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