[Federal Register Volume 59, Number 122 (Monday, June 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15496]
[[Page Unknown]]
[Federal Register: June 27, 1994]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Social Security Administration
[Social Security Acquiescence Ruling 94-1(10)]
Wolfe v. Sullivan; Contributions To Support re: Posthumous
Illegitimate Child
AGENCY: Social Security Administration, HHS.
ACTION: Notice of Social Security Acquiescence Ruling.
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SUMMARY: In accordance with 20 CFR 422.406(b)(2), the Commissioner of
Social Security gives notice of Social Security Acquiescence Ruling 94-
1(10).
EFFECTIVE DATE: June 27, 1994.
FOR FURTHER INFORMATION CONTACT:
Gary Sargent, Litigation Staff, Social Security Administration, 6401
Security Blvd., Baltimore, MD 21235, (410) 965-1695.
SUPPLEMENTARY INFORMATION: Although not required to do so pursuant to 5
U.S.C. 552(a)(1) and (a)(2), we are publishing this Social Security
Acquiescence Ruling in accordance with 20 CFR 422.406(b)(2).
A Social Security Acquiescence Ruling explains how we will apply a
holding in a decision of a United States Court of Appeals that we
determine conflicts with our interpretation of a provision of the
Social Security Act (the Act) or regulations when the Government has
decided not to seek further review of that decision or is unsuccessful
on further review.
We will apply the holding of the Court of Appeals decision as
explained in this Social Security Acquiescence Ruling to claims at all
levels of administrative adjudication within the Tenth Circuit. This
Social Security Acquiescence Ruling will apply to all determinations
and decisions made on or after June 27, 1994. If we made a
determination or decision on your application for benefits between
March 12, 1993, the date of the Court of Appeals decision, and June 27,
1994, the effective date of this Social Security Acquiescence Ruling,
you may request application of the Ruling to your claim if you first
demonstrate, pursuant to 20 CFR 404.985(b), that application of the
Ruling could change our prior determination or decision.
If this Social Security Acquiescence Ruling is later rescinded as
obsolete, we will publish a notice in the Federal Register to that
effect as provided for in 20 CFR 404.985(e). If we decide to relitigate
the issue covered by this Social Security Acquiescence Ruling as
provided for by 20 CFR 404.985(c), we will publish a notice in the
Federal Register stating that we will apply our interpretation of the
Act or regulations involved and explaining why we have decided to
relitigate the issue.
(Catalog of Federal Domestic Assistance Programs Nos. 93.802 Social
Security - Disability Insurance; 93.803 Social Security - Retirement
Insurance; 93.805 Social Security - Survivors Insurance; 93.806
Special Benefits for Disabled Coal Miners; 93.807 Supplemental
Security Income.)
Shirley S. Chater
Commissioner of Social Security
Acquiescence Ruling 94-1(10)
Wolfe v. Sullivan, 988 F.2d 1025 (10th Cir. 1993)--Contributions To
Support re: Posthumous Illegitimate Child--Title II of the Social
Security Act.
Issue: 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. Further, whether the Secretary in determining if the
worker was ``contributing to the support'' of the unborn child must
consider such contributions in relation to the worker's economic
circumstances.
Statute/Regulation/Ruling/Citation: Section 216(h)(3)(C)(ii) of the
Social Security Act (42 U.S.C. 416(h)(3)(C)(ii)); 20 CFR 404.366(a)(2);
Social Security Ruling (SSR) 68-22.
Circuit: Tenth (Colorado, Kansas, New Mexico, Oklahoma, Utah,
Wyoming).
Wolfe v. Sullivan, 988 F.2d 1025 (10th Cir. 1993).
Applicability of Ruling: This Ruling applies to determinations or
decisions at all administrative levels (i.e., initial, reconsideration,
Administrative Law Judge (ALJ) hearing and Appeals Council). To the
extent indicated, this ruling expands the tests for dependency status,
as set forth in SSR
68-22, in the Tenth Circuit.
Description of Case: Della Wolfe and Earl Bialczyk began living
together in May 1988, although they maintained separate residences.
During the time they lived together, Bialczyk purchased groceries so
Wolfe could fix his favorite breakfast, purchased cigarettes for Wolfe,
paid for her expenses when they went on dates, and installed an
alternator in her car. In late August 1988, Wolfe learned that she was
pregnant and informed Bialczyk of the pregnancy two days later. The
couple separated in early September 1988. Bialczyk died on October 5,
1988. David Weyburn was born to Wolfe on April 26, 1989.
Weyburn's application for child's benefits on Bialczyk's earnings
record was denied by initial and reconsideration determinations.
Pursuant to section 216(h)(3)(C)(ii) of the Social Security Act (the
Act), an ALJ found that Bialczyk was not Weyburn's biological father
and, at the time of his death, he was not living with or contributing
to Weyburn's or Wolfe's support. In concluding that the evidence did
not establish that Bialczyk contributed to Weyburn's or Wolfe's
support, the ALJ decided that the contributions were not regular and
substantial, in cash or kind. The Appeals Council denied Weyburn's
request for review of the ALJ's decision.
The plaintiff sought judicial review alleging that the regular and
substantial test was inappropriate with respect to contributions to a
posthumous illegitimate child. The district court affirmed the
Secretary's decision and found that the evidence did not prove that
Bialczyk had contributed to Wolfe's support under either the regular
and substantial test or the more liberal criteria for evaluating
contributions to a posthumous illegitimate child utilized by the Ninth
Circuit in Doran v. Schweiker, 681 F.2d 605 (9th Cir. 1982). Weyburn
appealed and the United States Court of Appeals for the Tenth Circuit
affirmed the judgment of the district court.
Holding: The Court of Appeals agreed with the Doran court that the
proper test for determining whether the father was ``contributing to
the support'' of his posthumous illegitimate child is whether the
father's support was commensurate with the needs of the unborn child at
the time of the father's death. The court also agreed with Doran that
the economic circumstances of the worker must be taken into account
when making such a determination. The court stated that support may be
shown by proof that contributions were made to either the unborn child
(e.g., baby clothes or a crib) or the mother (e.g., food, shelter or
medical care). The court further indicated that the contributions to
the mother must have been made with knowledge of the pregnancy and that
expenditures intended for courtship of the mother did not constitute
contributions for support of the unborn child.
Although the unborn child needed only minimal support when Bialczyk
died, the court ruled that the evidence did not show that Bialczyk had
contributed anything to Weyburn's or Wolfe's support after he learned
of the pregnancy. Moreover, the court found that the controlling date
for evaluating contributions under section 216(h)(3)(C)(ii) of the Act
was at the time of Bialczyk's death in October 1988. By that date,
Wolfe and Bialczyk had ended their relationship and the worker was no
longer making any of the alleged contributions. The court concluded
that, based on the record, the evidence failed both to satisfy the
Secretary's test or prove under the Doran criteria that Bialczyk had
contributed to the child's support according to his ability. Because of
this holding, the court of appeals did not rule on the issue of the
child's paternity.
Statement As To How Wolfe Differs From Social Security Policy
According to the Social Security Administration's (SSA's)
regulations implementing section 216(h)(3)(C)(ii) of the Act (20 CFR
404.366(a)), ``contributions for support'' of the claimant must be made
regularly and must be substantial. To be substantial, contributions
must be large enough to meet an important part of the ordinary living
costs of the claimant. A consistent pattern of contributions is
sufficient to show regularity. Under SSR
68-22, and SSA's operating instructions, the ``living with'' or
``contributing to the support'' requirements are established for the
posthumous child of a worker if the worker was living with, or
contributing to the support of, the child's mother at the time of the
worker's death.
In adopting the Doran criteria, the Wolfe court stated that the
proper test for contributions is whether the father's support was
commensurate with the needs of the unborn child at the time of the
father's death, taking into account the father's economic circumstances
at the time of his death.
Explanation of How SSA Will Apply The Wolfe Decision In 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 Act who resides in Colorado, Kansas, New Mexico, Oklahoma, Utah or
Wyoming at the time of the determination or decision at any
administrative level, i.e., initial, reconsideration, ALJ hearing or
Appeals Council, and who was born after the worker died.
Such an applicant will be deemed to be the worker's child when
satisfactory evidence establishes that the worker is the father of the
child and the worker's contributions to his unborn child, at the time
of his death, were commensurate with the needs of the unborn child,
even though the contributions were not regular and substantial. The
economic circumstances of the worker (i.e., ability to contribute) will
also be taken into account in determining whether the worker was
contributing to the claimant's support. Support may be shown by proof
that the worker made contributions to either the unborn child (e.g.,
baby clothes or a crib) or the mother (e.g., food, shelter or medical
care). The worker's contributions must have been made with knowledge of
the pregnancy. Expenditures intended for courtship of the mother will
not be considered contributions to the unborn child.
[FR Doc. 94-15496 Filed 6-24-94; 8:45 am]
BILLING CODE 4190-29-F
