Schafer v. Astrue

• Decision Date: 12 April 2011
• Docket Number: No. 10–1500.,10–1500.
• Citation: 167 Soc.Sec.Rep.Serv. 22,641 F.3d 49
• Parties: Janice SCHAFER, Guardian Ad Litem for WMS, infant, Plaintiff–Appellant,v.Michael J. ASTRUE, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

641 F.3d 49
167 Soc.Sec.Rep.Serv. 22

Janice SCHAFER, Guardian Ad Litem for WMS, infant, Plaintiff–Appellant,
v.
Michael J. ASTRUE, Defendant–Appellee.

No. 10–1500.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 28, 2011.Decided: April 12, 2011.

[641 F.3d 50]

ARGUED: Kelsi Brown Corkran, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: George L. Fitzgerald, Charlotte, North Carolina, for Appellant. Tony West, Assistant Attorney General, William Kanter, United States Department of Justice, Washington, D.C.; Anne M. Tompkins, United States Attorney, Charlotte, North Carolina; David Black, General Counsel, Karen Aviles, General Attorney, Social Security Administration, Baltimore, Maryland, for Appellee.Before WILKINSON, AGEE, and DAVIS, Circuit Judges.Affirmed by published opinion. Judge WILKINSON wrote the majority opinion, in which Judge AGEE joined. Judge DAVIS wrote a dissenting opinion.

OPINION WILKINSON, Circuit Judge:

Don and Janice Schafer married in 1992. Don died the next year. With the help of in vitro fertilization, however, Janice gave birth to W.M.S., Don Schafer's biological child, a number of years later. Janice Schafer then applied on W.M.S.'s behalf for survivorship benefits under the Social Security Act. See 42 U.S.C. § 402(d) et seq.

The Social Security Administration rejected W.M.S.'s claim. Because under its view natural children must be able to inherit from the decedent under state intestacy

[641 F.3d 51]

law or satisfy certain exceptions to that requirement in order to count as “children” under the Act, W.M.S. was not eligible for survivorship benefits. See 42 U.S.C. §§ 416(h)(2), (h)(3)(C). The district court agreed. On appeal, Schafer contends that undisputed natural children such as W.M.S. plainly fall within 42 U.S.C. § 416(e)(1)'s basic definition of “child,” making their state intestacy rights irrelevant.

We shall affirm the judgment. The agency's view best reflects the statute's text, structure, and aim of providing benefits primarily to those who unexpectedly lose a wage earner's support. And even if the agency's interpretation were not the only reasonable one, it falls well within the range of permissible readings entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

I.

The sad facts giving rise to this case are not in real dispute. Janice and Don Schafer, Jr. were married in June 1992. Four months later he was diagnosed with cancer and informed that the chemotherapy he needed might render him sterile. In December 1992 he deposited sperm samples with a long-term storage facility, but in March 1993 he died of a heart attack. At the time Don was domiciled in Virginia.

In April 1999 Janice Schafer conceived a child through in vitro fertilization, and she gave birth to that child, W.M.S., on January 13, 2000 in Texas. ¹ There is significant evidence that W.M.S. is Don Schafer's biological child, born almost seven years after Don's death. There is also evidence that Don intended for Janice to use the stored semen to conceive a child after his anticipated death, though he never expressed consent in writing to be the legal father of a child resulting from post-humous in vitro fertilization. In 2001 a Texas court purported to declare Don Schafer W.M.S.'s father.

In 2004 Janice Schafer applied on W.M.S.'s behalf to the Social Security Administration (“SSA”) for surviving child benefits under the Social Security Act (“the Act”), see 42 U.S.C. § 402(d). An administrative law judge initially awarded W.M.S. benefits, but the SSA's Appeals Council reversed, reasoning that W.M.S. was not Don Schafer's “child” within the meaning of the Act because W.M.S. could not inherit from him under Virginia intestacy law. Janice Schafer then sought review of the SSA's decision in federal district court, which upheld the SSA's denial of benefits. She now appeals.

II. A.

Every child claiming survivorship benefits under the Act must meet a series of requirements. Initially, the child or his guardian must have filed an application. 42 U.S.C. § 402(d)(1)(A). The child must also fit certain substantive criteria: he must be unmarried and either under certain age limits or subject to a disability, id. § 402(d)(1)(B), and he must have been “dependent upon such individual ... at the time of such [individual's] death ...,”

[641 F.3d 52]

id. § 402(d)(1)(C)(ii) (internal subsection division omitted).²

Before even reaching these questions, however, an applicant must establish something more fundamental: that he is the insured's “child” within the meaning of the Act. The Act's basic grant of benefits provides that “[e]very child (as defined in section 416(e) of this title) ... of an individual who dies a fully or currently insured individual ... shall be entitled to a child's insurance benefit....” Id. § 402(d)(1). As relevant here, § 416(e) is sparse: “The term ‘child’ means (1) the child or legally adopted child of an individual.” Id. § 416(e)(1).

Section 416(e)(1), however, is not the only provision of the Act that bears on the determination of child status. Section 416, titled “Additional definitions,” also includes § 416(h), labeled “Determination of family status.” That provision states:

In determining whether an applicant is the child ... 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 ... 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 ... shall be deemed such.

Id. § 416(h)(2)(A).

Section 416(h) also provides three additional gateways to child status for those who cannot establish it through § 416(h)(2)(A)'s intestacy provision. First, an applicant who “is a son or daughter of a fully or currently insured individual” but cannot inherit from that individual is deemed a child if his parents went through a marriage ceremony that turned out to be legally invalid. Id. § 416(h)(2)(B). Second, a child who cannot inherit from a deceased insured individual under state intestacy law is a “child” under the Act where prior to death the decedent “had acknowledged [parentage] in writing,” “had been decreed [the child's parent] by a court,” or “had been ordered by a court to contribute to the support of the applicant because the applicant was [the insured individual's child].” Id. § 416(h)(3)(C)(i)(I)-(III) (internal subsection divisions omitted). Third, a child who cannot inherit is deemed a “child” if “such insured individual is shown by evidence satisfactory to the Secretary to have been the [parent] of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died.” Id. § 416(h)(3)(C)(ii).

In addition, the Act gives the Commissioner of Social Security rulemaking authority. See id. § 405(a).

B.

This case turns on the relationship between the brief definition of “child” in § 416(e)(1)—which is part of the only definition referred to in § 402(d)(1)'s basic grant of benefits—and § 416(h)'s more specific provisions. On the SSA's view, § 416(h) “provides the analytical framework that [it] must follow for determining whether a child is the insured's child” for purposes of § 416(e)(1)'s definition. Social Security Acquiescence Ruling 05–1(9), 70 Fed.Reg. 55,656, 55,657 (Sept. 22, 2005) (“Acquiescence Ruling”); see also 20 C.F.R. § 404.355(a) (using § 416(h)'s provisions as the only means of establishing

[641 F.3d 53]

child status as a natural child). In keeping with this view, the SSA has always required applicants claiming natural child status—including the undisputed biological children of married parents—to pass through one of § 416(h)'s pathways to secure that status. See, e.g., Old–Age, Disability, Dependents' and Survivors' Insurance Benefits, 44 Fed.Reg. 34,479, 34,487 (June 15, 1979) (listing the same requirements in an earlier version of 20 C.F.R. § 404.355 as part of a restatement of the applicable regulations).

The SSA has also taken the view that posthumously conceived children such as W.M.S. can qualify as “children” under the Act only through the state intestacy provision. See Acquiescence Ruling, 70 Fed.Reg. at 55,657 (“[T]o meet the definition of ‘child’ under the Act, an after-conceived child must be able to inherit under State law.”); Program Operations Manual System GN 00306.001(C)(1)(c), available at https:// secure. ssa. gov/ poms. nsf/ lnx/ 0200306001 (same).³ The insured parent of such a child by definition died prior to the child's conception, and therefore parentage could not have been acknowledged or decreed prior to death, nor could the applicant have been living with or receiving contributions from the decedent when the decedent passed away.

On the SSA's view, then, W.M.S. is entitled to benefits only if he could inherit from Don Schafer under Virginia law. But Virginia law does not recognize any “child born more than ten months after the death of a parent” as that parent's child for intestacy purposes. Va.Code Ann. § 20–164 (ten-month limitation); Va.Code Ann. § 64.1–5.1(2) (incorporating the provisions of Va.Code Ann. § 20–156 et seq. in determining the parentage of “a child resulting from assisted conception”). W.M.S., however, was born almost seven years after Don Schafer's death. The SSA therefore denied W.M.S.'s claim.

Schafer takes a very different view of the relationship between § 416(e)(1) and § 416(h). Adopting the view of Gillett–Netting v. Barnhart, 371 F.3d 593, 597 (9th Cir.2004), she argues that § 416(h)'s strictures do not apply to children whose “parentage ... is not disputed.” After all, § 402(d) refers explicitly to § 416(e), not § 416(h), in defining...