20 CFR 404.350(e)

SSR 71-11c

Walker v. Finch, U.S.D.C., W.D. Tenn., W.D. Civ. No. C- 69-74 (4/8/70) (CCH U.I.R.) Fed. Par. 15,771

Where the worker, after supporting his stepchild for several years, separated from child's mother and did not support child for the 7-month period between the separation and his death, held, discontinuance of support constituted a "change in the support situation" under the applicable regulation, and, therefore, the relevant period for determining whether the one-half support requirement was met was the 7-month period rather than the 12-month period ordinarily considered and, since the worker was not contributing to support of the child during such period, the child was not dependent on the worker at the time of his death, and is not entitled to benefits on his earnings record. Further held, the regulation is not void as being unduly restrictive as to the period ordinarily considered in determining the support requirement, nor does the statutory procedure for abjudicating social security claims deny claimant's due process of law.

BROWN, Chief Judge: By agreement, this cause was before the Court on a plenary hearing rather than on motion for summary judgment.

Plaintiff's first contention is that the statutory scheme for adjudicating social security claims is contrary to due process because the hearing examiner is not only the decision- maker but is also the fact-gatherer. Plaintiff points to no specific impropriety on the part of the hearing examiner. We are of the opinion that such procedure as provided by statute does not deny to social security claimants due process of law.

The only real question in this case is whether the minor plaintiff, Debra Susan Ayers, was a dependent of Mack D. Walker at the time of his death on February 6, 1967. It is absolutely clear from the record that Debra received no support from Walker from the time he separated from Debra's mother on July 10, 1966 to the date of his death.

Under the Act, Debra was not a dependent of Walker unless at the time of his death she was receiving at least one-half of her support from him. If we look no further than to the Act itself, it is clear that Debra was not a dependent because at the time of Walker's death she was receiving no support from him.

The Regulation, however, though attacked by plaintiff as being unreasonable and therefore void, actually is more favorable to plaintiff than is the statute. It provides that in determining whether the deceased provided at least half of the claimant's support, you look to a period of one year immediately prior to death, unless there has been a change in the support situation within that time, in which case you look to the period from the change to the date of death. Since Walker had supported Debra for years prior to the separation on July 10, 1966, but did not support her at all after that date, the examiner treated that as a "change in the support situation" and considered the relevant period to be from that date until death. Thus he determined that Debra was not a dependent. We believe the Regulation is valid, was properly applied by the examiner, and that his conclusion is supported by substantial evidence.

We think that plaintiff is simply wrong in contending that, under the statute, the entire period from the time Debra became a stepchild of Walker until his death must be looked to and that the Regulation, in providing to the contrary, is void. We think that plaintiff is also wrong in contending that in any event, under the statute, the entire year prior to death must be looked to and that the Regulation, in providing to the contrary, is void; however, even if plaintiff is correct in this contention, we believe that there is substantial evidence to support a finding that Walker did not furnish half of Debra's support in that year.

It is therefore ORDERED that the complaint be denied and the action dismissed.

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