SSR 86-16a: SECTIONS 202(d)(3), 205(a), 216(h)(2)(A), AND 216(h)(3)(C) OF THE SOCIAL SECURITY ACT (42 U.S.C. 402(d)(3), 405(a), 416(h)(2)(A), AND 416(h)(3)(C)) FINALITY OF DECISION -- NEW AND MATERIAL EVIDENCE OF PATERNITY -- RES JUDICATA

20 CFR 404.354(b) and 404.355

SSR 86-16a

On February 14, 1974, and on October 6, 1980, R applied for child's insurance benefits on behalf of her daughter on the decedent's earnings record. The Social Security Administration denied both of these applications on the grounds that R's daughter was not shown to be the decedent's child. When R's appeal of her October 6, 1980, application was pending, her representative submitted new and material evidence which established that R's daughter was the decedent's child under section 216(h)(30(C)(i) of the Social Security Act (the Act). R's representative contended that R's first application could be reopened under Boatman v. Schweiker, U.S.D.C., N.D. ILL., E. Div., Civ. No. 78C299 (10/7/81). The Appeals Council (AC) found, however, that Boatman was applicable only when a claimant can qualify as a child of the worker under the provision of section 216(h)(2)(A) of the Act for recognition of a claimant's status as a child under applicable State law. Since R's daughter was the decedent's child under section 216(h)(3)(C)(i) of the Act but not under section 216(h)(2)(A) of the Act, the AC concluded that Boatman was not applicable in this case. Although the determination denying R's first application could not be reopened, the AC found that, because R's representative had submitted new and material evidence which had not been previously considered, res judicata did not apply to a determination on her application of October 6, 1980. Consequently, the AC held that R's daughter was entitled to benefits as the decedent's child on the basis of the application that R had filed on her behalf on October 6, 1980.

The decedent died on July 6, 1973, while domiciled in New York. On February 14, 1974, and on October 6, 1980, R applied for child's insurance benefits on behalf of her daughter on the decedent's earnings record. The Social Security Administration denied both of these applications on the grounds that R's daughter was not proven to be the decedent's child.

After R had appealed the denial of her application of October 6, 1980, her representative submitted a certified copy of a "Request to Add Given Name to Birth Record." This record, which was dated June 12, 1970, was signed by the decedent and showed that he was the father of R's daughter. On the basis of this evidence, it was determined that R's daughter was entitled to benefits as the decedent's child under section 216(h)(3)(C)(i) of the Social Security Act (the Act).

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

"Every child (as defined in section 216(e)) . . . 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 . . .

(C) was dependent upon such individual . . .

shall be entitled to a child's insurance benefit. . . ."

Section 216(h)(2)(A) of the Act provides, in pertinent part, that --

"In determining whether an applicant is the child . . . of a fully or currently insured individual for purposes of this title, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death. . . . Applicants who according to such law would have the same status relative to taking intestate personal property as a child . . . shall be deemed such."

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

"An applicant who is the son or daughter of a fully or currently insured individual, but who is not (and is not deemed to be) the child of such insured individual under paragraph (2), shall nevertheless be deemed to be the child of such insured individual if. . .

(C) in the case of a deceased individual --

(i) such insured individual --

(1) had acknowledged in writing that the applicant is his or her son or daughter . . .and such acknowledgement . . . was made before the death of such insured individual. . . ."

R's representative contended that R's first application could be reopened under the decision rendered in Boatman v. Schweiker, U.S.D.C., N.D. ILL., E. Div., Civ. No. 78C299 (10/7/81). The Appeals Council (AC) found, however, that Boatman was applicable only in certain claims for child's insurance benefits under section 216(h)(2)(A) of the Act. Prior to June 29, 1976, a child who had been recognized by his or her father for purposes of inheritance (but not legitimated) had to meet a dependency test before he or she could qualify for child's benefits. Effective June 29, 1976, such a child was deemed dependent on the father. This was a change of position resulting from the U.S. Supreme Court decision in Mathews v. Lucas, 427 U.S. 495 (1976). (See SSR 79-35 (C.E. 1976-1980, p. 47); SSR 77-2c (C.E. 1976-1980, p. 49).) Under an October 7, 1981, court approved settlement of class action litigation in Boatman v. Schweiker, a class of child's claims denied on or after June 29, 1976, was reexamined. The reexamination of the certified class was required to ascertain that a dependency test had not been applied for children who had inheritance rights under State law. Additionally, the reexamination focused on any applicable changes in States' intestacy laws that may not have been applied. In determining the applicability of Boatman to this case, the AC found that it had to decide whether the evidence which was used to establish the entitlement of R's daughter under section 216(h)(3)(C)(i) of the Act was also sufficient to establish her entitlement under section 216(h)(2)(A) of the Act.

At the time of the decedent's death, the law of New York provided that an illegitimate child could inherit from his or her father if a court of competent jurisdiction, based on proceedings instituted during the mother's pregnancy or within two years of the birth of the child, issued an Order of Filiation declaring paternity. There was no evidence of an Order of Filiation in this case, and the "Request to Add Given Name to Birth Record" of June 12, 1970, was insufficient to grant R's daughter inheritance rights under section 216(h)(2)(A) of the Act. Accordingly, the AC concluded that Boatman was not applicable in this case.

Although the determination denying R's first application could not be reopened, the AC found that, because R's representative had submitted new and material evidence which had not been previously considered, res judicata did not apply to a determination on her application of October 6, 1980. Consequently, the AC held that R's daughter was entitled to benefits as the decedent's child on the basis of the application that R had filed on her behalf on October 6, 1980.

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