Kohut v. Secretary of Health, Ed. and Welfare

Decision Date18 November 1981
Docket NumberNo. 80-3090,80-3090
Citation664 F.2d 120
PartiesDorothy Baron KOHUT, on behalf of Michael A. Sabo, Plaintiff-Appellant, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Frank Murtaugh, Davlin & Murtaugh, Cleveland, Ohio, for plaintiff-appellant.

John J. Horrigan, Asst. U. S. Atty., James J. Komorowski, Cleveland, Ohio, Gabriel L. Imperato, Office of Gen. Counsel, HEW, Region V, Steven J. Plotkin, Mike Zarski, Chicago, Ill., for defendant-appellee.

Before MERRITT and MARTIN, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

PER CURIAM.

Appellant seeks review of a final decision of the Secretary denying her application on behalf of her son, Michael Sabo, for Surviving Child Insurance benefits. The child is the illegitimate son of the insured wage-earner, Anthony Sabo. Appellant contends that the Secretary incorrectly determined that the child was not dependent, because the child's father did not make regular contributions to his support. The District Court granted the Secretary's motion for summary judgment, based on a magistrate's recommendation that substantial evidence supported the Secretary's finding that Anthony Sabo did not contribute to the child's support.

Appellant first applied for benefits in 1972, shortly after Sabo's death. In the interim, she changed Michael's last name from "Baron" to "Sabo." Benefits were denied initially and upon reconsideration, because appellant failed to demonstrate that Michael was Sabo's child, and that he was dependent on Sabo at the time of Sabo's death.

In 1976, Kohut reapplied for benefits, presenting additional evidence to support her original allegations. After a hearing, an administrative law judge granted benefits, finding that Michael Sabo was Anthony Sabo's "child," and was therefore entitled to benefits under section 202(d) of the Social Security Act, 42 U.S.C. § 402(d), without proof of actual dependency. The administrative law judge based its paternity finding on oral testimony. At the time of his death, Sabo had never acknowledged paternity in writing, and no judicial proceeding had ever established paternity. The administrative law judge concluded that under Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), Michael Sabo must be entitled under Ohio law to share in his father's estate as would a legitimate child. Therefore, Michael was entitled to a presumption of dependency under section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A).

On its own motion and that of Sabo's wife, the Appeals Council reviewed and reversed the administrative law judge's decision, because appellant had failed to prove that Michael was dependent on Anthony Sabo for support at the time of the wage-earner's death. According to the Appeals Council, Michael Sabo must establish eligibility under 42 U.S.C. § 416(h)(3)(C)(ii), which provides that:

An applicant who is the son or daughter of a fully or currently insured individual, but who is not (and is not deemed to be) the child of such insured individual under paragraph (2) of this subsection, (42 U.S.C. § 416(h)(2)(A)) shall nevertheless be deemed to be the child of such insured individual if: ...

(C)(ii) such ... individual is shown by evidence satisfactory to the Secretary to have been the father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured ... died. (emphasis added).

The Appeals Council concluded that Michael was not Sabo's "child" under the Act, because he was ineligible to inherit from Sabo's estate under the Ohio intestacy statute, O.R.C. ch. 2105.18. In Ohio, an illegitimate child may inherit from its father only if the father took certain specified steps to acknowledge paternity during his lifetime. At the time of the Appeals Council's review, the Franklin County Court of Appeals had declared chapter 2105 unconstitutional, in Moore v. Dague, 46 Ohio App.2d 75, 345 N.E.2d 449 (1975). However, the Cuyahoga County Court of Appeals upheld the statute against constitutional challenge in Green v. Woodard, 40 Ohio App.2d 101, 318 N.E.2d 397 (1974). The ...

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8 cases
  • Young v. Secretary of Health and Human Services
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • April 8, 1986
    ...app. dismissed sub nom. Jackson v. White, 444 U.S. 1061, 100 S.Ct. 1000, 62 L.Ed.2d 743 (1980). See also Kohut v. Secretary of HEW, 664 F.2d 120, 122 (6th Cir.1981) (noting that Ohio Supreme Court in White resolved conflict in Ohio appellate courts as to constitutionality of Chapter Accordi......
  • Hammonds for Green v. Bowen
    • United States
    • U.S. District Court — Southern District of New York
    • January 27, 1987
    ...v. Califano, 633 F.2d 430, 434 (6th Cir.1980); Santiago v. Mathews, supra, 431 F.Supp. at 1215; cf. Kohut v. Secretary of Health, Education and Welfare, 664 F.2d 120, 122 (6th Cir.1981) (contribution-to-support requirement not satisfied where insured individual, at the time of his death, wa......
  • In re Long Distance Telecommunication Litigation
    • United States
    • U.S. District Court — Western District of Michigan
    • June 27, 1985
  • Chester for Chester v. Secretary of Health and Human Services, 86-5005
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • January 5, 1987
    ...support even when measured against the less stringent requirements established by this court. In Kohut v. Secretary of Health, Education and Welfare, 664 F.2d 120 (6th Cir.1981), the illegitimate child failed to demonstrate the requisite dependency on his biological father where the father ......
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