Vernoff v. Astrue

• Decision Date: 17 June 2009
• Docket Number: No. 08-55049.,08-55049.
• Citation: 568 F.3d 1102
• Parties: Gabriela VERNOFF, on her own behalf and on behalf of her minor child Brandalynn Vernoff, Plaintiff-Appellant, v. Michael J. ASTRUE, of Social Security, in his official capacity, and his employees, agents and successors in office, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

568 F.3d 1102

Gabriela VERNOFF, on her own behalf and on behalf of her minor child Brandalynn Vernoff, Plaintiff-Appellant, v. Michael J. ASTRUE, of Social Security, in his official capacity, and his employees, agents and successors in office, Defendant-Appellee.

No. 08-55049.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 2009.

Filed June 17, 2009.

James T. Raetz and Wallace R. Vernoff, Coulter Vernoff & Pearson, Pasadena, CA, for the appellant.

Gregory G. Katsas, Assistant Attorney General, and Kelsi Brown Corkran, Attorney, Civil Division, Department of Justice, Washington, D.C. for the appellee.

Appeal from the United States District Court for the Central District of California, Cormac J. Carney, District Judge, Presiding. D.C. No. CV-04-03237-CJC.

Before CYNTHIA HOLCOMB HALL, ANDREW J. KLEINFELD, and BARRY G. SILVERMAN, Circuit Judges.

HALL, Circuit Judge:

Gabriela Vernoff ("Vernoff"), on her own behalf and on behalf of her minor child Brandalynn Vernoff ("Brandalynn"), appeals the district court's summary judgment in favor of the Commissioner of the Social Security Administration's ("SSA") denial of her claim for child survivor benefits. The SSA determined that Brandalynn did not meet the eligibility requirements because she could not establish that she was dependent upon the deceased insured at the time of his death under California law, due to her posthumous conception. Vernoff also appeals the district court's denial of her claim that the SSA's exclusion of certain posthumously-conceived children violates the Equal Protection Clause. We affirm.

I. Background

Vernoff and the insured, Bruce Vernoff, were married for five years when Bruce died of accidental causes in July 1995. Shortly after his death, Vernoff directed a physician to extract five vials of Bruce's semen. The couple had no children, and there is no evidence to suggest that Bruce consented to the procedure or had ever contemplated having a child postmortem. In June 1998, Vernoff underwent in vitro fertilization using Bruce's sperm and Brandalynn was born March 17, 1999.

In October 1999, Vernoff filed her initial claim for child survivor benefits with the Social Security Administration, on behalf of both Brandalynn and herself, as the mother of a surviving child. Her claim was denied both by the SSA and on appeal before an Administrative Law Judge ("ALJ") before she appealed to the district court. While her appeal was pending, this court decided Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir.2004), and the SSA subsequently issued an Acquiescence Ruling to the decision on September 22, 2005. See Social Security Acquiescence Ruling 05-1(9) ("SSAR"), 70 Fed.Reg. 55,656 (Sept. 22, 2005). The district court remanded the case to the SSA for further proceedings in light of the two decisions. The SSA reaffirmed its final decision in December 2006, and the district court affirmed the decision in 2007.

II. Standard of Review

We review de novo the district court's decision to uphold the SSA's denial of benefits. See Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir.2001). The agency's final decision denying benefits must be affirmed unless the findings are based on legal error or are unsupported by substantial evidence. Id. "Considerable weight" must be given to the construction of the Act adopted by the Commissioner of the SSA, who has statutory authority to interpret and enforce the Social Security Act ("Act") under 42 U.S.C. § 405(a). See Das v. Dep't of Health & Human Servs., 17 F.3d 1250, 1254 (9th Cir.1994).

III. Discussion

1. The Gillett-Netting Decision

In Gillett-Netting, we contemplated the Act's application to posthumously-conceived children for the first time. The case centered around twins conceived 10 months after their father's passing. Gillett-Netting, 371 F.3d at 595. Their father, Netting, delayed cancer treatment in order to deposit semen for later use by his wife. Id. at 594. Before he died, he confirmed that he wanted his wife to have their child using his frozen sperm. Id. at 595.

We first noted that to receive benefits under the Act, a claimant must show that: (1) he or she is a "child," under the Act; and (2) he or she "was dependent on the insured wage earner at the time of his death." Id. at 596 (citing 42 U.S.C. § 402(d)(1)). We then interpreted the word "child," for purposes of 42 U.S.C. § 416(e), "to mean the natural, or biological, child of the insured." Id. In doing so, this court held that, contrary to the SSA's interpretation, a child did not also have to satisfy the terms of § 416(h)(2), (3) (demonstrating right to take through intestacy laws of the State and other means of establishing paternity) where parentage was not disputed. Id. at 596-97.

We next examined the dependency requirement of § 402(d). The Act does not require proof of actual dependency for those children that are deemed dependent, through a determination either that they are the legitimate child of the insured under state law or a deemed legitimate child through compliance with § 416(h). See § 402(d)(3).¹ Applying Arizona law, we held that the twins were the deemed dependents of Netting because they were his legitimate children under state law, which recognizes "[e]very child[as] the legitimate child of its natural parents." Gillett-Netting, 371 F.3d at 598 (quoting Ariz.Rev. Stat. § 8-601). Netting was the "natural parent" of the twins, in turn, as the "biological father of a child born using artificial insemination" of his spouse. Id. at 599 (citing Ariz.Rev.Stat. § 25-501).²

2. The Social Security Acquiescence Ruling

In the SSAR, the SSA reaffirmed its interpretation of § 416(e) — that to meet the Act's definition of "child" for purposes of § 416(e) a child must also demonstrate a sufficient connection to the insured through compliance with § 416(h)(2), (3) — but acquiesced to Gillett-Netting's interpretation of § 416(e) for the Ninth Circuit only. 70 Fed.Reg. 55,657. The SSAR also reaffirmed that, in the usual circumstances, this means a "child" can only be deemed a legitimate child for dependency purposes, under § 402(d)(3), if she has already first complied with § 416(h)(2) and shown that she is able to inherit through the intestacy laws of the state of the insured's residence.³ Id. The SSAR noted that in the Ninth Circuit, however, due to Gillett-Netting, the child must only be biologically related to the insured, and must only "be the insured's `legitimate' child" under applicable state law to be deemed dependent for purposes of § 402(d)(3). Id. The SSAR further explained, however, that the legitimacy distinction has been replaced in jurisdictions within the Ninth Circuit by a system of "rights which flow between parents and their children, regardless of the parents' marital status." Id. In conclusion, the SSAR stated that "[a] child acquires these rights [and thus is deemed both legitimate and dependent] if he establishes that an individual is his parent under State family law provisions." Id. (emphasis added).

3. Determining Parentage Under California Law

Though our decision in Gillett-Netting and the SSA's subsequent Acquiescence Ruling require Brandalynn to be considered the insured's "child" under the Act because of her biological relationship to the insured, that determination does not end our inquiry. Vernoff must also establish that Brandalynn was dependent upon the insured at the time of his death, see § 402(d)(1)(C)(ii), to be eligible for benefits. Brandalynn has three methods of establishing dependency under § 402(d)(3): (1) show actual dependency at the time of the insured's death; (2) satisfy the requirements in the Ninth Circuit under the SSAR and Gillett-Netting by establishing that the insured is her "parent" under California law provisions and that she is, therefore, deemed both legitimate and dependent; or (3) satisfy the requirements under § 416(h)(2) by establishing that she may inherit from the insured under the intestacy laws of California, and therefore, is deemed legitimate, see SSAR, 70 Fed. Reg. 55,657. Vernoff cannot establish that Brandalynn was actually dependent upon the insured at the time of his death, as Brandalynn was not yet conceived, so she must rely on the other two methods of establishing deemed dependency. We first examine whether Vernoff can establish that the insured is Brandalynn's natural father under California law.

As noted above, in Gillett-Netting we relied on Arizona state law, which recognizes "[e]very child[as] the legitimate child of its natural parents." 371 F.3d at 598 (quoting Ariz.Rev.Stat. § 8-601, second alteration added). The SSAR recognized that all jurisdictions within the Ninth Circuit, excepting Guam, had similarly eliminated categorization of children based upon the marital status of their parents. 70 Fed.Reg. 55,657. Therefore, following the approach taken in Gillett-Netting, the SSAR instead required a claimant to establish that the insured was his or her parent under State law.⁴ For the court in Gillett-Netting, this determination was based upon Arizona's recognition of biological parenthood as sufficient to establish "natural" parenthood, particularly for the "biological father of a child born using artificial insemination" of his spouse. 371 F.3d at 599 (citing Ariz.Rev.Stat. § 25-501).

California has taken a different approach to resolving the problems posed by categorizing a child as legitimate or illegitimate. Rather than deeming every child legitimate, as Arizona has, California has instead chosen to replace the legitimacy determination with an alternate scheme "which bases parent and child rights on the existence of a parent and child relationship rather than on the marital status of the parents." See Johnson v. Calvert, 5 Cal.4th 84, 88-89, 19 Cal.Rptr.2d 494, 851 P.2d 776 (1993). A parent and child relationship can be established only between a child and his natural or adoptive parent. See Cal. Fam.Code § 7601...