SSR 67-22

Where the Secretary of Health, Education, and Welfare disallowed an application for child's insurance benefits on the earnings record of the child's natural father who was not the husband of the child's mother, because no action had been taken to rebut the presumption under Puerto Rican law that the child was the legitimate child of the mother's husband, and a Federal court affirmed this "final decision" of the Secretary, but subsequently a local court properly decreed the child to be illegitimate as to the mother's husband, held, such local court decree, submitted to the Social Security Administration within 4 years after notice of disallowance of the claim, constitutes "new and material evidence" and thus "good cause" under the rules for reopening a determination of disallowance and the Administration may allow the claim on the basis of the original application if the child otherwise met the requirements for entitlement on his natural father's earnings record.

In November 1955, B filed application for child's insurance benefits on behalf of her child, C, the son of R, who was conceived and born while B was married to P. The worker, R, had acknowledged the child as his own in the registry of birth. The application for benefits was disallowed by the Social Security Administration and notice was sent to B on April 5, 1956. The disallowance was based on the fact that C was conceived and born while his mother was validly married to P and no action had been taken to rebut the presumption that the child was that of B's lawful husband; therefore, C did not have status as R's child. After an appeal by B, the hearing examiner affirmed the disallowance and on November 7, 1957, the Appeals Council denied B's request for review of the decision.

On December 30, 1958, the United States District Court, District of Puerto Rico, affirmed the disallowance, stating that under Title 32, LPRA 1887 (30), Code of Civil Procedure of Puerto Rico, the child must be presumed to be the legitimate child of P; that the acknowledgement of the child as their own by B and R in the Registry of Vital Statistics, as shown by the birth certificate, was not sufficient to overcome the presumption; and that under Title 31, LPRA, such presumption could only be overcome by judicial action contesting the legitimacy of the child.

In May 1959, P, the legal husband of C's mother, brought civil suit in the Superior Court of Puerto Rico. He was successful in rebutting the presumption of legitimacy of C and obtained a decree adjudging C not his legitimate child. B then submitted a copy of this decree to the Social Security Administration and again requested benefits on behalf of C.

The question thus raised is whether, under the rules for reopening a determination of disallowance which had become final, such determination may be reopened and revised even though the disallowance had been affirmed by a Federal court.

Section 404.957 of the Social Security Administration Regulations No. 4 (20 CFR 404.957) provides in substance that a determination or decision of the Administration may be reopened, within 4 years after the date of the written notice of the initial determination to the party to such determination, for "good cause."

Under section 404.958 of the Regulations, there is "good cause" for reopening a decision where the Administration receives "new and material evidence" after notice to the party to the initial determination. In this case, B submitted as evidence a decree by the Superior Court of Puerto Rico, clearly valid under Puerto Rican law, in which C was found by the court not to be the child of his mother's husband. This court decree constituted "new and material evidence" since it materially affected the status of the child for social security purposes. Moreover, this evidence was submitted by B within 4 years after notice of the initial determination of disallowance and constitutes "good cause" for reopening and revising the prior determination.

The fact that a Federal court had reviewed the Secretary's "final decision" and affirmed that it was correct does not limit the Secretary's authority to reopen and revise an initial determination where there is "good cause for such action." See Livingstone v. Folsom, 3 Cir., 234 F.2d 75, 78 (rehearing den. June 20, 1956). There is also ample judicial authority which sets forth the rationale in such cases i.e., the Congressional intent commits the primary responsibility for administering the particular law involved to the administrative agency concerned, the court being limited to reviewing the administrative determination, and affirming, reversing, or modifying it on the record then before it. See Sprague v. Woll, 122 F.2d 128 (1941), cert. denied 314 U.S. 669 (1941).

In this case, the court reviewed a record in which the presumption of a child's legitimacy with respect to its mother's husband had not been rebutted in the manner prescribed by Puerto Rican law. From the evidence then in the record, the court affirmed the Secretary's "final decision." Under section 205(g) of the Social Security Act, the court was required to base its decision only on the facts in the record before it. However, had the court had to review a record wherein there had been a valid rebuttal of the presumption of legitimacy (assuming, arguendo, the claim would have been denied despite such evidence), the court doubtless would have reached a different conclusion. So, too, would a reopening and revision by the Appeals Council of the Secretary's "final decision" be consistent with the court's order in this case.

Accordingly, it is held that the Appeals Council may reopen its decision in this case on the basis of the "new and material evidence" which rebutted the presumption of the claimant's legitimacy and allow the claim for child's insurance benefits as of November 1955, the month in which all other conditions of entitlement were initially met.

(Note: Section 216(h)(3) of the Act (42 U.S.C. 416(h)(3)), added by the 1965 amendments, provides that after August 1965 an individual who is the son or daughter of a worker can qualify as a "child" for social security purposes regardless of his status under State law, if, subject to the limitations specified in section 216(h)(3), he is acknowledged by the worker in writing to be his child, or a court decrees that the worker is his father, or the worker has been ordered by a court to contribute to his support because the worker is his father, or other evidence satisfactory to the Secretary shows that the worker is his father and the worker was living with him or contributing to his support.)

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