EFFECTIVE DATE: 06/27/94
Whether the contributions for support by the father of an unborn child commensurate with the needs of the unborn child at the time of the father's death establish support of the child in order to entitle the child to survivor's benefits as a deemed child, even though the contributions to the child or the child's mother were not regular and substantial. Further, whether the Secretary in determining if the worker was "contributing to the support" of the unborn child must consider such contributions in relation to the worker's economic circumstances.
Section 216(h)(3)(C)(ii) of the Social Security Act (42 U.S.C. 416(h)(3)(C)(ii)); 20 CFR 404.366(a)(2); Social Security Ruling (SSR) 68-22.
Tenth (Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming)
Wolfe v. Sullivan, 988 F.2d 1025 (10th Cir. 1993)
This Ruling applies to determinations or decisions at all administrative levels (i.e., initial, reconsideration, Administrative Law Judge (ALJ) hearing and Appeals Council). To the extent indicated, this ruling expands the tests for dependency status, as set forth in SSR 68-22, in the Tenth Circuit.
Della Wolfe and Earl Bialczyk began living together in May 1988, although they maintained separate residences. During the time they lived together, Bialczyk purchased groceries so Wolfe could fix his favorite breakfast, purchased cigarettes for Wolfe, paid for her expenses when they went on dates, and installed an alternator in her car. In late August 1988, Wolfe learned that she was pregnant and informed Bialczyk of the pregnancy two days later. The couple separated in early September 1988. Bialczyk died on October 5, 1988. David Weyburn was born to Wolfe on April 26, 1989.
Weyburn's application for child's benefits on Bialczyk's earnings record was denied by initial and reconsideration determinations. Pursuant to section 216(h)(3)(C)(ii) of the Social Security Act (the Act), an ALJ found that Bialczyk was not Weyburn's biological father and, at the time of his death, he was not living with or contributing to Weyburn's or Wolfe's support. In concluding that the evidence did not establish that Bialczyk contributed to Weyburn's or Wolfe's support, the ALJ decided that the contributions were not regular and substantial, in cash or kind. The Appeals Council denied Weyburn's request for review of the ALJ's decision.
The plaintiff sought judicial review alleging that the regular and substantial test was inappropriate with respect to contributions to a posthumous illegitimate child. The district court affirmed the Secretary's decision and found that the evidence did not prove that Bialczyk had contributed to Wolfe's support under either the regular and substantial test or the more liberal criteria for evaluating contributions to a posthumous illegitimate child utilized by the Ninth Circuit in Doran v. Schweiker, 681 F.2d 605 (9th Cir. 1982). Weyburn appealed and the United States Court of Appeals for the Tenth Circuit affirmed the judgment of the district court.
The Court of Appeals agreed with the Doran court that the proper test for determining whether the father was "contributing to the support" of his posthumous illegitimate child is whether the father's support was commensurate with the needs of the unborn child at the time of the father's death. The court also agreed with Doran that the economic circumstances of the worker must be taken into account when making such a determination. The court stated that support may be shown by proof that contributions were made to either the unborn child (e.g., baby clothes or a crib) or the mother (e.g., food, shelter or medical care). The court further indicated that the contributions to the mother must have been made with knowledge of the pregnancy and that expenditures intended for courtship of the mother did not constitute contributions for support of the unborn child.
Although the unborn child needed only minimal support when Bialczyk died, the court ruled that the evidence did not show that Bialczyk had contributed anything to Weyburn's or Wolfe's support after he learned of the pregnancy. Moreover, the court found that the controlling date for evaluating contributions under section 216(h)(3)(C)(ii) of the Act was at the time of Bialczyk's death in October 1988. By that date, Wolfe and Bialczyk had ended their relationship and the worker was no longer making any of the alleged contributions. The court concluded that, based on the record, the evidence failed both to satisfy the Secretary's test or prove under the Doran criteria that Bialczyk had contributed to the child's support according to his ability. Because of this holding, the court of appeals did not rule on the issue of the child's paternity.
According to the Social Security Administration's (SSA's) regulations implementing section 216(h)(3)(C)(ii) of the Act (20 CFR 404.366(a)), "contributions for support" of the claimant must be made regularly and must be substantial. To be substantial, contributions must be large enough to meet an important part of the ordinary living costs of the claimant. A consistent pattern of contributions is sufficient to show regularity. Under SSR 68-22, and SSA's operating instructions, the "living with" or "contributing to the support" requirements are established for the posthumous child of a worker if the worker was living with, or contributing to the support of, the child's mother at the time of the worker's death.
In adopting the Doran criteria, the Wolfe court stated that the proper test for contributions is whether the father's support was commensurate with the needs of the unborn child at the time of the father's death, taking into account the father's economic circumstances at the time of his death.
This Ruling applies only to cases involving an applicant for child's benefits as a deemed child under section 216(h)(3)(C)(ii) of the Act who resides in Colorado, Kansas, New Mexico, Oklahoma, Utah or Wyoming at the time of the determination or decision at any administrative level, i.e., initial, reconsideration, ALJ hearing or Appeals Council, and who was born after the worker died.
Such an applicant will be deemed to be the worker's child when satisfactory evidence establishes that the worker is the father of the child and the worker's contributions to his unborn child, at the time of his death, were commensurate with the needs of the unborn child, even though the contributions were not regular and substantial. The economic circumstances of the worker (i.e., ability to contribute) will also be taken into account in determining whether the worker was contributing to the claimant's support. Support may be shown by proof that the worker made contributions to either the unborn child (e.g., baby clothes or a crib) or the mother (e.g., food, shelter or medical care). The worker's contributions must have been made with knowledge of the pregnancy. Expenditures intended for courtship of the mother will not be considered contributions to the unborn child.
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