20 CFR 404.354(b) and 404.355(a)

SSR 86-14c

Davis v. Heckler, 1A Unempl. Ins. Rep. (CCH) ¶ 16,146 (U.S.D.C. N.D., ILL. 1985)

R applied for child's insurance benefits on behalf of her three children ont he deceased worker's earnings record. The evidence of record showed that the children were born out of wedlock and that the worker had died while domiciled in Illinois. At the hearing before the administrative law judge (ALJ). R testified that the worker had acknowledged his paternity of the children on numerous occasions to family and friends. Statements from several of these persons, most notably the worker's brothers, corroborated R's testimony. There was no conflicting evidence. An ALJ denied R's application based primarily on the absence of corroborating documentary evidence of paternity and evidence indicating that the worker had not lived with R and the children. On appeal, the district court noted that, under Illinois law, an illegitimate child may inherit from his natural father if "the decedent acknowledged paternity, and the acknowledgment is proved by clear and convincing evidence." Citing prior case law, the court found that, notwithstanding the absence of any written acknowledgement of paternity or proof that the worker had lived with R's children, the uncontradicted testimony provided by R and by several other persons was sufficient, under Illinois law, to establish that the worker had acknowledged his paternity of R's children. consequently, the district court held, in reversing the ALJ's decision, that R's children were entitled to child's insurance benefits on the worker's earnings record.

NORGLE, District Judge:

This matter is before the court on Plaintiff's, Lula B. Davis, motion and Defendant's, the Secretary of the Department of Health and Human Services ("Secretary"), cross motion for summary judgment. Ms. Davis seeks judicial review of a final administrative decision of the Secretary's denial of her application for children's insurance benefits under the Social Security Act ("Act"), 42 U. S .C. §§ 402(d), 416(h). Because the Administrative Law Judge's ("ALJ") decision under section 416(h) and Ill. Rev. Stat. Ch. 110-½ § 2-2 is not supported by substantial evidence, that decision is reversed. The Secretary is ordered to pay the benefits to which the Davis children are entitled.

The facts in this case are adequately set out in the ALJ's decision. Tr. 18-21. Therefore, only the facts required by this decision will be discussed. Section 402(d) of the Act provides that an unmarried child of a person who dies fully or currently insured may be entitled to a surviving child's benefit if that child is under the age of 18 and was dependent at the time of the parent's death. Mathews v. Luca, 427 U.S. 495 (1976). To determine if an applicant is the child of a deceased insured the Secretary initially looks to the state law of intestate succession. Section 416(h)(2)(A) provides:

In determining whether an applicant is the child or parent of a fully 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 was domiciled at the time of his death.

42 U.S.C. § 416(h)(2)(A). There is no dispute that Mr. Smith was domiciled in Illinois at the time of his death. The applicable provision of the Illinois Probate Act, therefore, is Ill. Rev. Stats. ch. 110-½ § 2-2. that section provides that an illegitimate child may inherit from his natural father if "the decedent acknowledged paternity, and the acknowledgement is proved by clear and convincing evidence." Under § 202, the term "acknowledgment" must be applied in its non-technical sense. Mezel v. Mobley, 21 Ill. 2d 20, 22, 170 N.E. 2d 595 (1960).

Prior to a discussion of the ALJ's decision in this matter we note that the Secretary's decision must be supported by substantial evidence. The Supreme Court has defined substantial evidence as "relevant evidence [that] a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 399, 401 (1971). However, in arriving at a decision the ALJ is to consider all competent and probative evidence; he should not merely pick and choose from the evidence in order to support a particular conclusion. Whitney v. Schweicker, 695 F.2d 784, 788 (7th Cir. 1982).

[Uncontradicted Testimony]

In this case, the ALJ heard testimony from Ms. Davis that Mr. Smith was the father of the three children. Moreover, she testified that Mr. Smith acknowledged his relationship to the children on numerous occasions to family and friends. The record contains statements from several of these persons (most notably Mr. Smith's brothers) corroborating Ms. Davis' testimony. Additionally, the ALJ herd the testimony of one Willie Thompson, a neighbor and frequent visitor to the home of Ms. Davis, Mr. Smith and the children. Mr. Thompson testified that Mr. Smith acknowledged his relationship to the children "at least a half a dozen times" over the years of their friendship. Tr. at 52. There is no indication in the administrative record to contradict the above mentioned evidence. Instead, the ALJ's decision rests primarily on the absence of corroborating documentary evidence and various indications that Mr. Smith did not live with Ms. Davis and the children. Neither of these considerations is conclusive in a determination made under Ill. Rev. Stat. ch. 110-½ § 2-2. See Cooper v. Harris, 499 F.Supp. 266, 268 (N.D. Ill. 1980).

The Secretary contends the Illinois appellate court's decision in Morelli v. Battelli, 68 Ill. App. 3d 410, 386 N.E.2d 328 (1st Dist. 1979), controls this case. In Morelli, the plaintiff alleged he was the acknowledged illegitimate son of a decedent. He produced testimonial evidence to support his allegations. The decedent's estate, however, offered testimonial evidence which contradicted the plaintiff's witness. The appellate court affirmed the circuit court's resolution of the conflict in favor of the decedent's estate. The present case does not involve conflicting testimony. In fact, the only testimony in this case favors Ms. Davis. The facts in Cooper v. Harris, supra, are closer to those in the present case.

In Cooper, a child was denied benefits under the Act because the ALJ declined to give weight to oral testimony of the decedent's acknowledgment of paternity in the absence of the "appropriate document." Id. at 268. The "appropriate document" consisted of a statement signed by the decedent and later destroyed by fire in a government office. In the place of any documentary evidence the plaintiff offered her own testimony and that of relatives regarding the decedent's acknowledgment of paternity. After noting that proof of paternity under § 2-2 is not limited to written evidence, the court found the testimonial evidence overwhelming in establishing the decedent's paternity. Id. The Cooper court reached its decision under § 2-2 notwithstanding the absence of any written acknowledgment of paternity. Id. ("The secondary evidence [plaintiff] introduced more than satisfied the rule.")

Additionally, , in Larimore v. Chatterton, 64 Ill. App. 3d 470, 381 N.E.2d 76 (3d Dist. 1978), the appellate court held a decedent's paternity was established by clear and convincing evidence despite the fact that almost all of the evidence introduced by the Plaintiff was testimonial in nature. Id. at 142-43. There the Defendant did not offer conflicting testimonial evidence, but instead relied on the Plaintiff's failure to produce a formal birth certificate. In using the mother's testimony to support its holding, the court noted that she was in the best position to know the facts regarding her child's paternity. Id. at 141. Thus, in the present case, Ms. Davis' testimony was not subject to less weight merely because she failed to produce a formal birth certificate or similar documentary evidence.

Based on the foregoing analysis it was erroneous for the ALJ to find that Ms. Davis did not meet her burden under Ill. Rev. Stat. Ch. 110-½ § 2-2. Therefore, under 42 U.S.C. § 405(g), the Secretary is ordered to pay the benefits to which Doris, Lean and Jerome Davis are entitled. Plaintiff's motion for summary judgment is granted and Defendant's cross motion for summary judgment is denied.


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