Where a child was born to the worker's unwed daughter in January 1955, and 9 months later, in October 1955, the worker filed an application for, and became entitled to, old-age insurance benefits; where the worker legally adopted the child in April 1966 and in May 1966 filed an application on behalf of the child for child's insurance benefits; and where the evidence established that throughout the 3-month period prior to the child's birth, the mother was living with and fully supported by the worker, and for the 9 months after its birth up to the time the worker filed his application, the child was living with and fully supported by the worker, held, the child was receiving at least one-half of its support from the worker for the year preceding the time the worker filed his application for old-age insurance benefits, and since the child was living with the worker at the time he filed such application the child may be deemed dependent on the worker at the time of the application for child's benefits. Accordingly, all other requirements of the law being met, the child is entitled to child's insurance benefits.
This case is before the Appeals Council upon the request of A, hereinafter referred to as the claimant, for review of the hearing examiner's decision issued on December 20, 1966. The request for review was granted and the claimant was apprised of his rights with respect thereto.
In his decision, the hearing examiner found that S was not adopted by the claimant within 24 months after the claimant became entitled to old-age insurance benefits; and that the child was not receiving at least one half of her support from the claimant during the year before the date he filed his application for old-age insurance benefits because she was born less than one year before that date. The hearing examiner concluded that the child was not entitled to child's insurance benefits.
The general issue before the Appeals Council is whether S is entitled to child's insurance benefits as the adopted child of A. The specific issue is whether the child was dependent upon A within the meaning of the pertinent provisions of the Social Security Act, as amended in 1965, at time of application.
Section 202(d) of the Social Security Act, as amended in 1965, provides, as pertinent here, that child's insurance benefits are payable to the legally adopted child of an insured individual, but only if certain requirements are met. One of these requirements, in the case of an insured individual who is living, is that the child must be dependent upon him at the time the child's application for benefits was filed. However, a child legally adopted by the insured individual (who was not his natural parent or his stepparent) after the latter became entitled to old-age insurance benefits, shall be deemed not to be dependent upon the insured individual at the time the child's application is filed unless, in addition to other conditions not pertinent here, the following requirements set forth in paragraph 9(B) of section 202(d) of the Act (Section 202(d)(10(B) prior to the 1967 Amendments, Public Law 90-248) are met:
The child was receiving at least one-half of his support from the insured individual for the year before that individual filed his application for old-age insurance benefits, and
Either adoption proceedings had been instituted by the insured individual in or before the month application was filed for old-age insurance benefits or the child was living with the insured individual in that month.
The above requirements of section 202(d)(9)(B) of the Social Security Act were added by section 323(a) of the 1965 Amendments (Public Law 89-97). This section also provides that the legal adoption of the child (who is not the natural child or the stepchild of the insured individual) must be completed before the end of a 24-month period after the month in which the adopting insured individual became entitled to old-age insurance benefits. This requirement as to the time limit for adoptions did not become effective until August 1966. However, the other requirements of section 202(d)(9)(B) to which reference has been made, became effective as to applications for child's insurance benefits filed on or after July 30, 1965.
The claimant filed his application for old-age insurance benefits on October 12, 1955, and became entitled to such benefits effective October 1955. On May 3, 1966, he filed an application for child's insurance benefits on behalf of S, his granddaughter, born on January 5, 1955, and legally adopted by him on April 30, 1966.
Under these circumstances, the 24-month time limit for adoption set forth in section 202(d)(9)(B) of the Act is not applicable because S was adopted before August 1966.
It is clear from the record that adoption proceedings had not been instituted by A in or before the month he filed his application for old-age insurance benefits. However, S was living with him in the month he filed his application for old-age insurance benefits. Therefore, the remaining issue before the Appeals Council is whether S was receiving at least one-half of her support from the claimant for the year preceding the filing of his application for old-age insurance benefits, i.e., for the period October 12, 1954 through October 11, 1955.
S was born out of wedlock to M, the claimant's daughter, in his home in West Virginia. M estimated that she did not earn over $50 "spending money" in the year prior to S's birth. The claimant's statement that M did not start working regularly until after S was about a year old is corroborated by M's earnings record showing no earnings posted until the first quarter of 1956. Both statements are further corroborated by M's application for a social security account number dated December 29, 1955. At some later date, apparently in mid-1957, M left the child with the claimant and his wife and went to New York City to work.
The Appeals Council is satisfied from the evidence that M lived with and was supported by the claimant during the three months prior to S's birth (i.e. October through December 1954). It also seems clear that the child was fully supported by the claimant from her birth in January 1955 until he filed his application for old-age insurance benefits in October 1955 and probably beyond that time.
Since the support period under section 202(d)(9)(B) of the Act is from October 1954 to October 1955, and S was born in January 1955, a question arises as to whether S may be considered to have been living with and receiving at least one-half of her support from the claimant for the one year period prior to her birth by reason of the fact that her mother was living with and being supported by the claimant during the 3 month period prior to her birth. It is generally accepted that when justice or convenience requires, the child in the womb is dealt with as a human being even though physiologically it is part of the mother. Thus it has been held that the marriage of a wage earner and his wife created a step-relationship between the wage earner and his wife's child, even though the child was unborn at the time (Social Security Ruling 60-9, Cumulative Bulletin 1960-1961 p. 35).
Further, where a legally adopted child of a disability insurance beneficiary was conceived before the beginning of the beneficiary's period of disability but born thereafter, and the child's mother, the beneficiary's stepdaughter, was residing in his household at the beginning of his period of disability, it has been held that such child was "in being" at the beginning of the period of disability and "living with" the beneficiary at the time (Social Security Ruling 67-17, Cumulative Bulletin 1967, p. 16).
Applying these principles to the facts in the instant case, the Appeals Council believes, and so finds, that the child was dependent upon the claimant for her support during the three months prior to her birth (by virtue of the support extended to the child's mother), as well as during the nine months after her birth.
Based on the foregoing, the Appeals Council makes the following specific findings:
S was living with the claimant in October 1955, the month in which he filed his application for old-age insurance benefits.
She was receiving at least one-half of her support from the claimant during the year preceding the filing of his application for old-age insurance benefits.
She is deemed dependent upon the claimant at the time her application was filed.
It is the decision of the Appeals Council that S is entitled to child's insurance benefits based on the application therefor filed on her behalf on May 3, 1966.
Back to Table of Contents