SSR 78-19c: SECTION 202(d)(1) and (d)(4), and 216(e) (42 U.S.C. 402(d)(1) and (d)(4), and 416(e)) -- CHILD'S INSURANCE BENEFITS -- DEFINITION OF STEPCHILD -- DEPENDENCY UPON WAGE EARNER WHILE NATURAL FATHER LIVING

20 CFR 404.325, 404.1109(b) and 404.1113(a)

SSR 78-19c

HOLLEY v. MATHEWS, 1A U.I.R. ¶ 15398, USDC, S.D. FLA. (7-7-77)

The claimants, natural children of the deceased wage earner, contended that two other children (born to the wage earner's second wife in her previous marriage) should not be entitled to benefits as step-children. The step-children's natural father was still living and had custody of them two months of the year. During the remaining ten months, the step-children lived with the wage-earner and were living with him at the time of his death. The wage earner married the children's mother when the ages of the children were 5 and 6 years. During the period of time they lived with the wage earner, he had the right to exercise parental control and authority over them. The claimants contended a stepparent relationship could not exist as long as the natural parents were living. Held, the children are the step-children of the deceased wage earner within the meaning of section 216(e) of the Social Security Act. Further held, since the step-children were living with (as defined in Regulations No. 4, section 404.1113) the wage earner at the time of his death, they meet the requirement for entitlement as step-children.

KING, District Judge:

Plaintiff brought this action pursuant to Section 205(g) of the Social Security Act (42 U.S.C. § 405(g)) for judicial review of a final decision of the Secretary of Health, Education and Welfare, granting her children child's insurance benefits as children of wage-earner William Day Hixon, but in less than full amount because of benefits awarded to stepchildren of Mr. Hixon.

The only issue before this Court is whether the Secretary's determination that the children involved were "stepchildren" of and "dependent" upon William Day Hixon within the terms of the Act and thus entitled to child's insurance benefits is supported by substantial evidence upon the record as a whole. 42 U.S.C. § 405(g).

Plaintiff, on behalf of her children, [hereinafter "claimants"] originally filed an application for benefits on August 25, 1975. Mr. Hixon died on July 2, 1975. On October 20, 1975, claimants, as the surviving natural children of the deceased wage earner, were awarded benefits, commencing in July, 1975.

On September 22, 1975, Howard M. Sharp, Jr. [hereinafter "Murphy" Sharp] and Anna T. Sharp filed their application for child insurance benefits as surviving stepchildren of William Day Hixon. On the same date, an application for mother's insurance benefits was filed by Mary Jo Hixon, natural mother of Murphy and Anna, and widow of William Day Hixon. Notification was sent to the claimants on November 18, 1975 that Mary Jo Hixon and Murphy and Anna Sharp had filed for benefits and that should they be awarded such benefits, claimants benefits would be reduced. Claimants object to the awarding of these benefits and after the award was made to Mary Jo Hixon and her two children, they requested a hearing.

A pre-hearing conference was held and the mother of the claimants, Erlynne D. Holley, and her husband, Charles R. Holley, acting as their attorney, appeared and it was agreed that a hearing was unnecessary. Mr. Holley did submit a letter advocating the position of the claimants. On September 15, 1976, the Administrative Law Judge entered a decision after detailing his findings of fact and conclusions of law, which denied the claimants' requested relief. A request for review of the decision was filed on September 28, 1976 with the Appeals Council and resulted in the affirmance of the decision on November 1, 1976. Plaintiff then sought judicial review pursuant to 42 U.S.C. § 405(g) by filing the Complaint in the instant case.

The following findings were entered by the Administrative Law Judge:

"1. Anna and Murphy Sharp are the "step- children", as that term is used in the Social Security Act, as amended, of the wage earner, William D. Hixon.

2. Anna and Murphy Sharp were "dependent", as that term is defined in the Act, on William D. Hixon at the time of his death.

3. Since all other requirements for child's insurance benefits have been met, Anna and Murphy Sharp are entitled to child's insurance benefits based on their applications filed on September 22, 1975."

These findings were predicated upon the following evaluation by the Administrative Law Judge of the evidence presented to him:

". . . a child is the stepchild of a man when the child's mother, while the relationship between mother and child existed, enters into a valid marriage with that man. This relationship exists regardless of whether the child's natural father is still alive. Therefore, since the evidence reveals that Mary J. Hixon entered in a valid marriage with William D. Hixon on 1967, and her children, Anna and Howard, were born prior to this date as a result of her previous marriage, then Anna and Howard Sharp were the 'stepchildren' of William D. Hixon subsequent to his marriage to Mary J. Hixon. The fact that the natural father of Anna and Howard was alive at the time of the marriage between William D. and Mary J. Hixon does not alter this finding."

Since it does not appear that Anna and Howard Sharp received at least one-half of their support from their stepfather, then Anna and Howard Sharp must have been 'living with' their stepfather at the time of his death for them to be entitled to benefits on his earnings record."

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"There appears to be no question that Anna and Howard have shared the same residence with their stepfather for approximately ten months out of each year. Although they have been temporarily separated each year when in the custody of their natural father, these have been only temporary separations and it was expected by all that the children would again share the residence of their stepfather. In addition, although little evidence is included in the record regarding whether William D. Hixon actually exercised parental control and authority over Anna and Howard, it certainly appears that he had the right to do so. It is difficult for the undersigned to imagine a situation where a man would marry a woman with two children ages five and six, live with them for approximately eight years, and exercise no parental control or authority over the children. At least, William D. Hixon certainly had the right to exercise parental control and authority over the children considering the ages of the children and the length of time he share the same residence with them."

Section 202(d) of the Act, in pertinent part, states that:

"1) Every child (as defined in section 216(e)) of an individual entitled to old age or disability insurance benefits, or of an individual who dies a fully or currently insured individual if such child --

(A) has filed application for child's insurance benefits,

(B) at the time such application was filed was unmarried and

(i) either had not attained the age of 18 or was a full-time student and had not attained the age of 22, or (ii) is under a disability (as defined in section 223(d) which began before he attained the age of 22, and

(C) was dependent upon such individual --

(i) if such individual is living, at the time such application was filed,

(ii) if such individual has died, at the time of such death, or

(iii) if such individual had a period of disability which continued until he became entitled to old-age or disability insurance benefits or (if he has died) until the month of his death, at the beginning of such period of disability or at the time he became entitled to such benefits, shall be entitled to a child's insurance benefit for each month, beginning with the first month after August 1950 in which such child become so entitled to such insurance benefits . . ."

Section 216(e) of the Act, in pertinent part, provides that:

"The term 'child' means . . . (2) a stepchild who has been such stepchild for not less than one year immediately preceding the day on which application for child's insurance benefits is filed or (if he insured individual is deceased) not less than nine months immediately preceding the day on which such individual died."

The record reflects that Mary Jo Hixon and the natural father of Anna and Murphy Sharp were divorced pursuant to a court order of the Circuit Court of the Twelfth Judicial Circuit in and for Collier County, Florida on January 10, 1967. On September 8, 1967, Mary Jo Hixon married William Day Hixon in Broward County, Florida. At that time, Anna and Murphy Sharp were five and six years old, respectively. According to these facts, the Administrative Law Judge initially determined whether Anna and Murphy Sharp were considered "stepchildren" under the Act and were eligible or benefits. The claimants proffered, prior to the Administrative Law Judge's determination, that the Act and its regulations fail to define "stepchild", and in their Memorandum of Law accompanying their Motion for Summary Judgment, assert that the case law fails to interpret the "stepchild as used in the Act. In this situation, the claimants contend, the common law controls, and at common law, Anna and Murphy Sharp could not have a stepparent as long as both of their natural parents were living. The Court is unpersuaded by the novel argument of claimants' counsel, and agrees with the Administrative Law Judge that Anna and Murphy Sharp are the stepchildren of William Day Hixon.

The Social Security rulings cited by the Administrative Law Judge (and the case law, infra) demonstrate that Anna and Murphy Sharp are stepchildren under the Act. SSR 61-52, C.B. 1960-61, p. 42, illustrates that a child born of a marriage that ends in divorce, custody of the child given to the natural mother, becomes the stepchild of her mother's second husband. This is implicit in that decision since the Judge had to first find a stepchild-stepparent relationship in order to then go on to the crucial question of whether the child was "dependent" on her stepfather at the time of his death. In SSR 66-11, C.B. 1966, p. 55, a stepchild was denied benefits under the Act because she was born while her mother was engaged in an extramarital relationship, and subsequent to the marriage of the deceased wage earner and her mother. Thus, the Act contemplates that ". . . a child is the stepchild of a worker only if such worker contracted a valid marriage with the child's mother while the relationship of parent and child existed between the mother and child." SSR 66-11, C.B. 1966, at p. 55.

Furthermore, the parameters governing entitlement of child insurance benefits under the Social Security Act are evidently broad ones. To be eligible for benefits under the Act as a stepchild, one need not be the "legal stepchild" of the deceased wage earner. Eisenhauer v. Mathews, 535 F.2d 681 (2nd Cir. 1976). In Eisenhauer, the deceased wage earner had never obtained a divorce from his first wife, but still entered into a purportedly valid ceremonial marriage with a woman who had four children from a prior marriage. Those four children were declared eligible for benefits, thus establishing that the meaning of "stepchild" under the Act extends beyond the "legal" definition.

The Court notes that an argument could be made that the case at bar is distinguishable from the above-cited cases in that those cases do not expressly refer one way or the other to whether the stepchild's natural father is living, and if so, is obligated to support his child. This matter is settled, however, by the Second Circuit Court of Appeals' decision in Florio v. Richardson, 469 F.2d 803 (2nd Cir. 1972). In that case a stepfather attempted to discontinue benefit payments to his stepson once he was separated from the stepson's natural mother and again when he divorced her. In support of his argument, the plaintiff proffered that the natural father had "reassumed" the obligations of support of his son. The court stated the following in regard to that argument:

"Indeed it appears undisputed that both by law and by separation agreement . . . the relationship between Enos and his natural father was at all relevant times, including the period of Enos' steprelationship with the wage earner, unchanged. The natural father continued to be primarily obligated to support his son . . ." Florio v. Richardson, supra at 807.

The court found the natural father's relationship with his son to have no significance in the determination of a child's entitlement or divestment of benefits, as it is not one of the "extrinsic events" or "objective tests" delineated in the Act. This is true even though it will sometimes result in inequities:

". . . [To] stretch the terms of the Act to accomodate apparent equities in a given case would be to rewrite both its language and Congress' intent. Disregarding the serious factual issue raised as to whether the natural father "reassumed" support, we would be confronted with the question of whether the stepson would become re-entitled to payment of benefits if his natural father should fail to continue supporting him. This is the very type of continuing factual review and redetermination which Congress sought to avoid. If, on the other hand, it were decided that payment of benefits should depend upon the natural father's legal relationship with his child, the latter would not have qualified for benefits in the first place, since that relationship was the same at the time of application as it is now." Florio v. Richardson, at 808.

Thus, the case law, the statutory scheme and the policy underlying the Act dictate that the determination of children's benefits, when dependent upon the threshold consideration of who is a "stepchild" under the Act, will bear no relationship with whether or not the child's natural father is living and/or is supporting him. This Court thus finds that the Secretary had substantial evidence to conclude that Anna and Murphy Sharp were children as defined under 42 U.S.C. § 416(e) by virtue of their mother's marriage to the deceased wage earner and were eligible for benefits if found to be "dependent" on their stepfather.

Section 202(d)(1)(C) of the Act, 42 U.S.C. § 402(d), requires that a child be "dependent" on the deceased wage earner in order to be entitled to benefits. Section 202(d)(4), 42 U.S.C. § 402(d)(4) reads in pertinent part:

"A child shall be deemed dependent upon his stepfather or stepmother at the time specified in paragraph (1)(C) if, at such time, the child was living with or was receiving at least one-half of his support from such stepfather or stepmother."

Section 404.1113 of Regulations No. 4, in pertinent part, reads:

"(a) Defined. "Living with" as used in sections 202(d)(3), 202(d)(4), 202(d)(8), 202(d)(9), and 216(h)(3) of the Act as amended and "living in such individual's household" as used in section 216(e) of the Act mean the parent and child are sharing the same residence and that the parent is exercising or has the right to exercise parental control and authority over the child. As used in this section, the term "parent" includes a natural parent, legally adopting parent, stepparent, the foster parents as to whom the child- claimant has the status of "child" under a theory of "equitable adoption," and the grandparent or step- grandparent."

The record reflects that the Sharp children did not receive one-half of their support from their stepfather, and the Administrative Law Judge so found. The only question to be resolved is whether there was substantial evidence to support the Administrative Law Judge's finding that the children were "living with" their stepfather. In that regard, the claimants do not question the Judge's finding that the Sharp children shared the same residence with their stepfather, but do contend that there was no evidence to support the finding that he exercised or had the right to exercise parental control over them.

At the outset, the Court notes that the claimants have the burden of refuting the children's eligibility for benefits, and so the finding of the Secretary that the children were eligible for benefits was presumptively valid and remained so until the claimants introduced evidence to rebut this prima facia presumption. Eisenhauer v. Mathers, supra. The Administrative Law Judge found "little evidence" in the record regarding actual exercise of parental control, but found that the deceased wage earner had the "right to exercise control" over the Sharp children. This determination was based on the fact that he married the natural mother of the children when the children were ages five and six and lived with them for eight years for approximately ten months out of each year. In their attempt to rebut these facts, the claimants proffered that Hixon never ". . . assumed parental posture with reference to the [children]. In addition, the claimants emphasized that the natural parents had divided custody of the Sharp children.

The question of control or the right to exercise parental control is separate from the question of financial support of a child under the Act. This is clear from the wording of 202(d)(4) (42 U.S.C. 402(d)(4), which deems a child to be dependent upon a stepparent if the child either "lives with" or receives one-half of his support from the stepparent. In this case, the fact that the natural father had custody of the children for two months out of the year bears no rational relationship to the parental control the children's stepfather actually or could have exercised during ten months out of each year. Further, the claimants proffered "evidence that William D. Hixon never" assumed parental posture" towards the children is a mere conclusion with no factual basis in the record. In short, the only evidence before the Administrative Law Judge concerning the question of control was the ages of the children while they lived with their stepfather and the length of time they lived with him; both facts lead to a reasonable inference that he at least had the right to exercise parental control.

Based on the foregoing, the undersigned concludes that there is substantial evidence in the record to support the finding that the children, Anna and Murphy Sharp, were stepchildren of the deceased wage earner, William Day Hixon, and were "living with" him at the time of his death.

ORDERED AND ADJUDGED that plaintiff's Motion for Summary Judgment be, and the same is hereby, DENIED, and the decision of the Secretary reducing the children's insurance benefits of plaintiff under 42 U.S.C. §§ 203(a) is AFFIRMED.

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