20 CFR 404.323 and 404.350(b)(2)
R, an insured worker, filed application for old-age insurance benefits in August 1965, and was found entitled to such benefits. In June 1967 R legally adopted his grandchild, C, a minor who had been living with and wholly supported by him from January 1965. From August 1964 through October 1964, C had lived with and been supported by her mother until placed in an orphanage from November 1964 to January 1965. R provided no support prior to January 1965. An application for child's insurance benefits on behalf of C was filed in July 1967.
Under section 202(d)(1) of the Social Security Act, as pertinent here, a legally adopted child of a worker entitled to old-age insurance benefits can upon the filing of an application become entitled to benefits if (in addition to other requirements not here at issue) such child:
Section 202(d)(9) of the Act, (formerly section 202(d)(10), before redesignation by the Social Security Amendments of 1967, P.L. 90-248, section 151(c)(1), provides as pertinent to this case:
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For the purpose of determining whether, under the facts in this case, the child meets the dependency requirement in section 202(d)(9) of the Act, the specific question presented is whether the words "for the year" in the phrase "receiving at least one- half of his support from such individual for the year before such individual filed his application for old-age insurance benefits * * *" which appears in section 202(d)(9) requires the continuous receipt of one-half support throughout the year or whether they could mean the receipt of one-half of the claimant's total support during the year, as a whole, irrespective of whether for some months in the year the claimant did not receive any of his support from the wage earner.
It would appear that Congress intended the former, i.e., that the child must have been continuously receiving one-half of his support during the year, for the following reasons. First, a study of the legislative history of the present section 202(d)(9) (formerly section 202(d)(10)), supports this interpretation. Former section 202(d)(10) was enacted by section 323(a) of P.L. 89-97, 89th Cong., July 30, 1965. In both Sen. Rep. No. 404, Part I, 89th Cong., 1st Sess. (1965), at pages 17 and 109, and H.R. Rep. No. 213, 89th Cong., 1st Sess. (1965), at pages 15 and 95, these provisions were referred to as requiring that "the child must be receiving one-half of his support for the entire year before the worker's entitlement" or as requiring that "The child had been receiving at least one-half of his support from the worker for the entire year before the worker became entitled to old-age insurance benefits * * *." (Emphasis supplied.)
Secondly, consideration of the purpose underlying the enactment of what is now section 202(d)(9) and the situation that provision sought to correct (as shown by its legislative history) also supports this interpretation.
Accordingly, in Sen. Rep. No. 404, Part I, supra, at page 108, and H.R. Rep. No. 213, at page 94 it is stated:
Clearly then, in enacting what is now section 202(d)(9), supra, it appears that Congress did not want a child to be considered dependent on an individual who adopted him after such individual's entitlement to old-age insurance benefits unless the child actually was dependent on that individual at the time he filed for old-age insurance benefits; that is, unless the child actually lost his primary regular source of support by the individual's retirement. Were the test the child's receipt from the individual of one-half of his total support during the pertinent one-year period, without regard to whether support was furnished continuously throughout the year, there could be cases in which the child would not be actually dependent on the insured individual at the time of the latter's application for old-age insurance benefits and yet qualify as a dependent under section 202(d)(9), supra. An example of this would be a case where a child received at least one-half of his total yearly support from an individual during the early months of the support period but then acquired a new, independent and permanent source of support during the latter part of that period. On the basis of the last- quoted portion of the legislative history of what is now section 202(d)(9), supra, as well as the reference therein to the "entire year," it seems clear that one of the reasons for which that section was enacted as to preclude a conclusion that the child was a dependent, for benefit purposes, of the former individual in a situation like that described above. Certainly, too, in other instances, the acquisition of a new permanent source of total support prior to the time as of which dependency is determined will defeat a finding of dependency where the receipt from the insured individual of one-half support at a particular time is an entitlement factor. See, for example, Baetich v. Hobby, 212 F.2d 480 (2 Cir., 1954), cert. den. 348 U.S. 831 (1954) and Steeb v. Folsom, 140 F. Supp. 463 (E.D.N.Y., 1956), which concerns parent's insurance benefits.
For the foregoing reasons, therefore, it is held that it is necessary for a child to have been receiving at least one-half his support from an insured individual, and been supported continuously, during the pertinent one-year period if he is to qualify as a dependent under section 202(d)(9), supra. In this case, this requirement has not here been met as there were 5 months (August 1964 through December 1964) during the pertinent one-year period in which the insured individual, R, did not support the child.