Outwater for McClinchey v. SECRETARY HHS, Civ. A. No. 94-71890.

• Citation: 894 F. Supp. 1114
• Decision Date: 07 August 1995
• Docket Number: Civ. A. No. 94-71890.
• Parties: Debra OUTWATER for the minor child, Cody McCLINCHEY, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

894 F. Supp. 1114

Debra OUTWATER for the minor child, Cody McCLINCHEY, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.

Civ. A. No. 94-71890.

United States District Court, E.D. Michigan, Southern Division.

August 7, 1995.

COPYRIGHT MATERIAL OMITTED

Deborah A. Bonner, Joseph K. Cox, Joseph K. Cox Assoc., Webberville, MI, for plaintiff.

ORDER ACCEPTING THE MAGISTRATE JUDGE'S JANUARY 30, 1995 REPORT AND RECOMMENDATION AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

GADOLA, District Judge.

The court, pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, 28 U.S.C. § 636(b)(1)(B), and LR 72.1(d)(2) (E.D.Mich. Jan. 1, 1992), has reviewed the magistrate judge's January 30, 1995 report and recommendation as well as plaintiff's February 16, 1995 objections and defendant's March 14, 1995 response filed thereto. After conducting a de novo review, the court accepts the magistrate judge's report and recommendation as the court's findings and conclusions.¹ A copy of the magistrate judge's report and recommendation is attached hereto as part of this order.

NOW, THEREFORE, IT IS HEREBY ORDERED that the magistrate judge's January 30, 1995 report and recommendation is ADOPTED.

IT IS FURTHER ORDERED that plaintiff's motion for summary judgment is DENIED.

IT IS FURTHER ORDERED that defendant's motion for summary judgment is GRANTED. The findings of the Secretary are AFFIRMED.

SO ORDERED.

REPORT AND RECOMMENDATION

MORGAN, United States Magistrate Judge.

I.

This matter is before the court on cross-motions for summary judgment. This is a social security action in which plaintiff seeks child's insurance benefits on behalf of the minor child Cody McClinchey, born to her out of wedlock. The issue before the court is whether the defendant's determination that Cody was not the deceased wage earner's child, as defined under the Social Security Act, is supported by substantial evidence. At the request of plaintiff's counsel, oral argument was held before the magistrate judge. After considering the briefs, as well as the arguments of counsel, and the law, see Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973); Estate of Spencer, 147 Mich.App. 626, 383 N.W.2d 266 (1985); Estate of Scharenbroch, 191 Mich.App. 215, 477 N.W.2d 436 (1991); and MCLA 700.111(4), the magistrate judge recommends that the motion of the government for summary judgment be granted and the decision denying child's benefits be affirmed.

Plaintiff submits that Cody is the child of the deceased wage earner Bryan Kirk Meyer, a Michigan resident, who died on or about January 13, 1991. Cody was born April 17, 1987, is under eighteen and unmarried. Plaintiff submits that the Michigan Probate Court proceeding determining Cody to be the sole heir at law is sufficient to establish entitlement to benefits.

The Social Security Act provides for survivor benefits for a child of a deceased wage earner if certain criteria are met. The child must be under eighteen, unmarried, and satisfy one of several statutory definitions to be "child of a deceased wage earner." 42 U.S.C. § 402(d), § 416(h). An individual who is under 18 and unmarried is defined as a child of the wage earner if the mother was married to the insured wage earner or if the child is adopted by the wage earner. Neither of these definitions is applicable in this case. Other methods allowing the child to collect, but on which plaintiff does not rely, include (2) common law marriage of the parents, defined as a technically deficient marriage ceremony, 42 U.S.C. § 416(h)(2)(B), no ceremony was performed in this case; (3) written acknowledgment of parentage by the wage earner, 42 U.S.C. § 416(h)(3)(C)(i)(I), Mr. Meyer refused to provide the same; (4) a court decree that the wage earner is the parent of the applicant, provided that the decree was issued prior to the death of the insured, 42 U.S.C. § 416(h)(3)(C)(i)(II), no court decree was issued prior to the wage earner's death; (5) a court order requiring the insured person to contribute to the support of the applicant because the applicant was his son or daughter, 42 U.S.C. § 416(h)(3)(C)(i)(III), this did not occur; (6) a determination by the Secretary that the deceased insured was the parent of and "was living with or contributing to the support of the applicant at the time the insured individual died," 42 U.S.C. § 416(h)(3)(c)(ii) this did not occur.

Plaintiff relies of the portion of the federal statute which allows the establishment of entitlement to child's benefits through eligibility to inherit property under the intestate succession laws of the state. 42 U.S.C. § 416(h)(2)(A). The section states in pertinent part:

In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this title, 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 a the time of his death.

42 U.S.C. § 416(h)(2)(A).

Here, the Michigan Probate Court found Cody to be the sole heir of Kirk Meyer. The ALJ considered the state law and reached a different legal conclusion. The ALJ declined to defer to the state probate court decision because it did not meet the criteria for deference set forth in Gray v. Richardson, 474 F.2d 1370 (6th Cir.1973), adopted by the Secretary in SS Ruling 83-37c. The ALJ determined that the Probate Court did not conform to the requirements of the Michigan Probate Code, and would be subject to reversal by the Michigan Supreme Court. (Tr. 12)

The law applicable to the state court's determination is the Michigan Probate Code, which provides four ways for a child born out of wedlock to be included in intestate succession. The code states in relevant part:

(4) if a child is born out of wedlock ... a man is considered to be the natural father of that child for all purposes of intestate succession if any of the following occurs:

(a) the man joins with the mother of the child and acknowledges that child as his child in a writing executed and acknowledged by them ...

(b) the man joins with the mother in a written request for a correction of certificate of birth pertaining to the child that results in the issuance of a substituted certificate recording the birth of the child;

(c) the man and the child have borne a mutually acknowledged relationship of parent and child that began before the child became age 18 and continued until terminated by the death of either;

(d) the man has been determined to be the father of the child and an order of filiation establishing that paternity has been entered pursuant to the paternity act ...

MCLA § 700.111 (1993) (Tr. 100).

Michigan appellate courts have held that the express mention of four circumstances under which a man is considered to be the natural father of a child born out of wedlock implicitly excludes all other circumstances. See, Matter of Estate of Vellenga, 120 Mich. App. 699, 327 N.W.2d 340 (1982).

Plaintiff relies on the third criteria, a mutually established relationship, and concedes that none of the other sections would apply. No father's name is listed on Cody's birth certificate and no request for correction was made. No written acknowledgment was executed. No Order of Filiation was entered by the circuit court or any state court.¹ Mr. Meyer was never served with any court documents. Mr. Meyer had no assets. However, after his death, in January, 1992, DNA testing conducted on his parents resulted in a conclusion that Cody was most likely his child. (Tr. 85)² This testing indicated that Mr. Meyer could not be excluded and that his chances of being Cody's father were more than 99 percent. Plaintiff testified at the Probate Court hearing that she never told Cody that Kirk was his father. (Tr. 145) The Livingston County Probate Court determined that based on plaintiff's testimony and the results of the blood test, Cody was the son of Kirk Meyer and the sole heir under the Michigan laws governing intestate succession. MCLA 700.111 (Tr. 146).

There was some other evidence of paternity in the record, although it is insufficient to meet the regulatory criteria. Plaintiff testified at the social security hearing that Mr. Meyer admitted paternity to Charles Salyers. (Tr. 24) However, the record is equivocal on this point. Two documents from Mr. Salyers are in the record. The first is a handwritten note dated 4-15-91 which states in full as follows: "Kirk Meyer was a friend of mine we have hung around together and he has mentioned to me several times that Cody is his child." (Tr. 80) The second document is the undated request for information from the social security office. The questions propounded by the office are crossed out and the answer written in is as follows: "The broad is sick, the man is dead let him rest in peace. Now that he is gone, he is defenseless She's been with other men besides Kirk. She slept with two other men while I was with her. If you want to find the father look in the Pinckney phone book. That's the truth Don't bother me with this nonsense." (Tr. 65-6) spelling and grammar unedited

Two other individuals, Carol Flack, the mother of plaintiff Debra Outwater, and Leana Crockett, submitted statements indicating that they knew that Kirk Meyer and plaintiff had lived together in 1985-1986 and that plaintiff was pregnant when they separated. Ms. Crockett did not testify in any proceeding. Ms. Flack stated at the social security hearing that Mr. Meyer never admitted to her that Cody was his son, but he asked her if she thought Cody was his child. (Tr. 83) The decedent and Ms. Outwater were not living together at the time of his death and he was not contributing to Cody's support.

Plaintiff does not rely on these witness statements. Rath...