SSR 65-35: SECTION 202(d). -- CHILD'S INSURANCE BENEFITS -- LEGAL ADOPTION BY CLAIMANT ENTITLED TO DISABILITY INSURANCE BENEFITS

20 CFR 404.323 and 404.327

SSR 65-35

Where a claimant in June 1960 was found entitled to disability insurance benefits beginning in July 1957, legally adopted a child in January 1961, and filed application for child's insurance benefits on behalf of the child in March 1961, held, no child's insurance benefits are payable under section 202(d) of the Act as the adoption occurred more than 24 months after the month in which the claimant became entitled to disability insurance benefits.

In April 1957, R filed application for disability insurance benefits. This claim was initially disallowed because it was determined that she was not under a disability. In November 1959, R initiated legal proceedings to adopt C who was neither her natural child nor her stepchild. C was over 18 years of age, had been severely disabled from birth, and for many years had been cared for and supported by R in her home. In June 1960 at R's request, the Administration reconsidered its initial denial of the claim for disability insurance benefits and awarded R disability insurance benefits beginning July 1957, the first month which, by law, any claimant could have been so entitled. The final decree of adoption was entered in January 1961 and on March 8, 1961, R filed application on behalf of C for child's insurance benefits on R's earnings record.

Under section 202(d)(1) of the Social Security Act, as pertinent here, a legally adopted child of a worker entitled to disability insurance benefits can upon the filing of an application become entitled to child's insurance benefits if (in addition to other requirements not herein at issue) such child:

(C) was dependent upon such individual --
(i) if such individual is living, at the time such application was filed,

* * * * * * *

(iii) if such individual had a period of disability which continued until he became entitled to * * * disability insurance benefits, * * * at the beginning of such period of disability or at the time he became entitled to such benefits, * * *.

Section 202(d)(1) further provides that "* * * clause (i) of subparagraph (C) of this paragraph shall not apply to a child of such individual unless he (A) is the natural child or stepchild of such individual (including such a child who was legally adopted by such individual) or (B) was legally adopted by such individual before the end of the twenty-four month period beginning with the month after the month in which such individual most recently became entitled to disability insurance benefits, * * *." (Emphasis added.)

In order to meet the dependency requirement at any of the times specified in section 202(d)(1)(C), the necessary parent- child relationship must have existed at such point of time. In this case it is clear that no legal parent-child relationship existed between R and C until the adoption decree was entered in January 1961. Since R had become disabled prior to becoming entitled to disability insurance benefits and since she became entitled to such benefits prior to January 1961, the points of time specified in section 202(d)(1)(C)(iii) cannot be used in determining whether C had met the dependency requirement.

R contended, however, that the point of time specified in section 202(d)(1)(C)(i) (i.e., March 8, 1961, the date the application for child's insurance benefits was filed) could be used in determining whether the dependency requirement had been met. She contended that since she was awarded benefits in June 1960, the requirement of the law would be met if the adoption of C was accomplished at any time before July 1962, the end of the 24-month period after the month in which R "most recently became entitled to disability insurance benefits."

The issue in this case, therefore, is whether the phrase in the law "most recently became entitled to disability insurance benefits" refers to the date on which the administrative decision was made that the claimant was entitled to benefits, i.e., June 1960, or the date which the Administration determined the claimant became entitled to disability insurance benefits, i.e., July 1, 1957.

It is clear from the language of the law that the date of entitlement referred to therein is the date as of which by law the claimant has fulfilled all prerequisites to entitlement to benefits regardless of the date of the administrative determination of entitlement. Thus, in this case, R's entitlement occurred in July 1957 when all requirements therefor were first met, and not June 1960, the month in which the Administration first determined a benefit to be payable.

Since none of the points of time specified in section 202(d)(1)(C) could be used in determining whether C had met the dependency requirement, it is held that C is not entitled to child's insurance benefits.

[See Hashem v. Celebrezze, 226 F. Supp. 450 (E.D.Pa., 1964), affirming the hearing examiner's decision without discussing all of the issues above.]

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