SSR 83-38a: SECTIONS 202(d) AND 216(e) (42 U.S.C. 402(d) AND 416(e)) CHILD'S INSURANCE BENEFITS -- RELATIONSHIP -- DEFINITION OF CHILD -- STEPGRANDCHILD

20 CFR 404.358(a) and 404.364

SSR 83-38a

In December 1978, the claimant's grandmother applied for child's insurance benefits on behalf of the claimant, born November 19, 1970, on the earnings record of the worker, the claimant's grandfather. The worker, who became entitled to disability insurance benefits (DIB) in February 1970, had a period of disability commencing July 16, 1969, at which time the claimant's parents were neither deceased nor disabled. However, the claimant's natural parents were disabled within the meaning of section 223(d) of the Social Security Act (the Act) as of December 1978, the month the worker was converted to old-age insurance benefits (OAIB). The evidence showed that the claimant lived with the worker in the United States and received at least one-half support from him for the year before he became entitled to OAIB. Held, the claimant was entitled as a stepgrandchild to child's insurance benefits on the worker's earnings record as of December 1978.

The issue before the Appeals Council was whether the claimant was entitled to child's insurance benefits on her stepgrandfather's earnings record.

On December 26, 1978, the applicant, the claimant's grandmother, filed an application for child's insurance benefits on behalf of the claimant on the worker's earnings record. The claimant was born on November 19, 1970, to the applicant's natural son and his wife. The applicant married the worker on May 16, 1969; therefore, the claimant was the worker's stepgrandchild.

Section 202(d)(1) of the Act provides, in pertinent part, that --

"Every child (as defined in section 216(e)) of an individual entitled to old-age or disability insurance benefits, or of an individual who does 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 . . .
(C) was dependent upon such individual . . .
shall be entitled to a child's insurance benefit . . . ."

Section 216(e)(3) of the Act provides, in pertinent part, that --

"The term 'child' means . . . a person who is the grandchild or stepgrandchild of an individual or his spouse, but only if (A) there was no natural or adoptive parent (other than such a parent who was under a disability, as defined in section 223(d)) of such person living at the time (i) such individual became entitled to old-age insurance benefits or disability insurance benefits or died, or (ii) if such individual had a period of disability which continued until such individual became entitled to old-age insurance benefits or disability insurance benefits, or died, at the time such period of disability began . . . ."

Section 202(d)(9)(A) of the Act provides, in pertinent part, that --

"A child who is a child of an individual under clause (3) . . . of section 216(e) . . . shall be deemed not to be dependent on such individual . . . unless (i) such child was living with such individual in the United States and receiving at least one-half of his support from such individual (I) for the year immediately before the month in which such individual became entitled to old-age insurance benefits or disability insurance benefits or died, or (II) if such individual had a period of disability which continued until he had become entitled to old-age insurance benefits, or disability insurance benefits, or died, for the year immediately before the month in which such period of disability began, and (ii) the period during which such child was living with such individual began before the child attained age 18."

The worker, born December 16, 1913, became entitled to a period of disability commencing July 16, 1969, and to DIB effective February 1970. As of December 1978, he was converted to OAIB because he had attained age 65 in that month.

The Social Security Administration determined that the claimant did not meet the relationship requirement in section 216(e)(3) of the Act and thus was not entitled to child's insurance benefits on the worker's earnings record because both of her parents were not deceased or disabled when the worker's period of disability began on July 16, 1969; at that time, the claimant had not yet been born. Under section 216(e)(3) of the Act, however, a claimant may also meet the relationship requirement of a "child" if both of his or her parents are deceased or under a disability, as defined in section 223(d), when the worker becomes entitled to OAIB.

At the time the worker became entitled to OAIB, the claimant's natural parents were disabled within the meaning of section 223(d) of the Act. Therefore, the claimant met the relationship requirement of a "child" under section 216(e)(3) of the Act as of December 1978.

With respect to the dependency requirement of section 202(d)(9)(A) of the Act, the record showed that the claimant began living with the worker in the United States as of April 1975, before she attained age 18, and continued to do so through December 1978 when he became entitled to OAIB. The evidence also showed that the worker contributed at least one-half of the claimant's support during the year before his entitlement to OAIB. Accordingly, the claimant met the dependency requirement of section 202(d)(9)(A) of the Act as of December 1978.

Based on the foregoing, it was the decision of the Appeals Council that the claimant met all of the requirements for entitlement to child's insurance benefits on the worker's earnings record as of December 1978 and that, based on the application of December 26, 1978, she was entitled to those benefits effective with that month.

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