EFFECTIVE DATE: 7/3/86
AR 86-22(4): Parsons v. Health and Human Services, 762 F.2d 1188 (4th Cir. 1985) -- Contributions to Support re: Posthumous Illegitimate Child -- Title II of the Social Security Act
Whether the contributions for support by the father of an unborn child commensurate with the needs of the unborn child at the time of the father's death establish support of the child in order to entitle the child to survivor's benefits as a deemed child, even though the contributions to the child or the child's mother were not regular and substantial.
Section 216(h)(3)(C)(ii) of the Social Security Act (42 U.S.C. Section 416(h)(3)(C)(ii)); 20 C.F.R. 404.366; Ruling 68-22
FOURTH (MARYLAND, VIRGINIA, WEST VIRGINIA, SOUTH CAROLINA, NORTH CAROLINA)
Parsons v. Health and Human Services, 762 F.2d 1188 (4th Cir. 1985)
APPLICABILITY OF RULING:
- This ruling applies to determinations or decisions at all administrative levels (i.e., initial, reconsideration, administrative law judge hearing and Appeals Council).
- To the extent indicated, this Ruling expands the tests for dependency status, as outlined in SSR 68-22, in the Fourth Circuit.
DESCRIPTION OF CASE:
Charles Bryant, the insured worker, lived with Evelyn Parsons on long weekends from June 1981 until his death in March 1982, in a house belonging to Mr. Bryant's cousin in Galax, Virginia. Mr. Bryant contributed to the expenses of the house, and he and Ms. Parsons shared their other expenses during the weekends. When they were not together in Galax, Ms. Parsons lived with her mother in Independence, Virginia, where she was employed. Mr. Bryant lived with his stepfather and worked in Ennice, North Carolina. Mr. Bryant occasionally visited Ms. Parsons in Independence.
In October 1981 Ms. Parsons became pregnant. Mr. Bryant and Ms. Parsons continued their living arrangements in Galax but were never married to each other. Mr. Bryant publicly acknowledged the child and informed his family that he intended to take care of it. Mr. Bryant gave Ms. Parsons money on several occasions, the total sum amounting to approximately $50.00, to pay for her transportation to the doctor. After an initial payment, insurance covered Mr. Parsons's doctor's bills. According to the Court of Appeals decision, Ms. Parsons had no other expenses until after Mr. Bryant's death on March 22, 1982.
Following the birth of the child, named Charles I. Bryant, Jr., Ms. Parsons sought child's insurance benefits on his behalf based on the deceased worker's earnings record. Under the circumstances of the case, Charles Jr. could not qualify for benefits as the worker's child, unless Section 216(h)(3)(C)(ii) of the Social Security Act applied. Under that provision, satisfactory evidence must show that the applicant is the worker's son or daughter and that the worker "was living with or contributing to the support of" the applicant at the time the worker died. An administrative law judge (ALJ) found that the worker was the father of the boy but that he did not contribute any significant amounts of support toward the needs of his son or Ms. Parsons and was not making any significant contributions at the time of his death; therefore, the claim for child's benefits was denied. Mr. Parsons appeals the denial to a Federal district court. The district court subsequently affirmed the Secretary's decision, and Mr. Parsons appealed to the Court of Appeals for the Fourth Circuit, which reversed the judgment of the district court.
Citing the standard enunciated by the Second Circuit in Adams v. Weinberger, 521 F.2d 656 (2d Cir. 1975), the court held that the "regular" and "continuous" test to measure the support given the mother or unborn child, as described in 20 C.F.R. 404.366, was a less relevant test than whether the support by the father for the unborn child was commensurate with the needs of the unborn child at the time of the father's death. The court held that the latter test conforms to the text of Section 216(h)(3)(C)(ii) of the Social Security Act and reflects the purpose of the statute by focusing on the unborn child's needs in terms of dependency at the time of the worker's death. The court noted that with a minor exception, Ms. Parsons's medical needs were covered by insurance and that the occasional payment by Mr. Bryant of Ms. Parson's transportation costs to the doctor's office, amounting to approximately $50.00, sufficed for all the needs of the unborn child at the time of Mr. Bryant's death. The court concluded that Charles I. Bryant, Jr., was entitled to child's insurance benefits.
STATEMENT AS TO HOW PARSONS DIFFERS FROM SOCIAL SECURITY POLICY:
According to the Social Security Administration's (SSA's) regulations implementing section 216(h)(3)(C)(ii) of the Social Security Act (20 C.F.R. 404.366(a)), "contributions for support" of the applicant must be made regularly and must be substantial. In order to be substantial, contributions must be large enough to meet an important part of the ordinary living costs of the applicant. A consistent pattern of contributions is sufficient to show regularity. According to SSR 68-22 and other statements of policy by SSA, the "living with" or "contributing to support" requirements are established for the posthumous child of a worker when the worker was living with, or contributing to the support of, the child's mother at the time of the worker's death.
The court in Parsons, citing Adams v. Weinberger, held that the measure of support given to the mother is not the test applicable to the issue of dependency since the dependency of the mother is not the issue, and the support for the unborn child need not be shown to be regular and substantial. The test for dependency is whether the support by the father for the unborn child was commensurate with the needs of the unborn child at the time of the father's death. Such support, depending on the facts of the case, can consist of even relatively small amounts.
EXPLANATION OF HOW SSA WILL APPLY THE DECISION WITHIN THE CIRCUIT:
This ruling applies only to cases involving an applicant for child's benefits as a deemed child under Section 216(h)(3)(C)(ii) of the Social Security Act who resides in Maryland, Virginia, West Virginia, South Carolina or North Carolina at the time of the determination or decision at any level of administrative review, i.e., initial, reconsideration, administrative law judge hearing or Appeals Council review and who was born after the worker died.
Such an applicant will be deemed to be the worker's child when the worker's contributions to his unborn child were commensurate with the needs of the unborn child at the time of the worker's death, even though those contributions were not regular and substantial.
Date of publication