AR 86-13(3): McNeal v. Schweiker , 711 F.2d 18 (3d Cir. 1983) -- Child's Benefits -- Contributions for Support - - Title II of the Social Security Act

AR 86-13(3)

EFFECTIVE DATE: 4/8/86

ISSUE:

Whether the Secretary must, in his evaluation of the worker's

"contributions to the support" of an illegitimate child, consider the

worker's means and the income of the family in which the child resided.

STATUTE/REGULATION/RULING CITATION:

Section 202(d)(3) of the Social Security Act (42 U.S.C. 402(d)(3));

Section 216(h)(3)(C)(ii) (42 U.S.C. 416(h)(3)(C)(ii)); 20 C.F.R. 404.

366(a)(2)

CIRCUIT:

THIRD (PENNSYLVANIA, NEW JERSEY, DELAWARE AND THE U.S. VIRGIN ISLANDS)

McNeal v. Schweiker , 711 F.2d 18 (3d Cir. 1983)

APPLICABILITY OF RULING:

DESCRIPTION OF CASE(S):

The worker, McKenzie Dunklin, Jr. died in 1971. In 1979, Nancy McNeal

applied for benefits for herself and her daughter, Benita, born in 1963,

on Dunklin's Social Security earnings record. Ms. McNeal alleged that she

and Mr. Dunklin had entered into a common-law marriage in 1963 and that

Mr. Dunklin was Benita's father. The couple lived together from 1963 until

sometime in 1965. The worker's wage record revealed that his earnings from

1963 to 1971 were minimal: in every year he earned less than $3,000 and in

four years he earned less than $1,000 per year. There was evidence that

from time to time Dunklin gave Ms. McNeal money for Benita's benefit,

e.g., payments of $30 three or four times a year, and that occasionally he

bought groceries, clothing and toys. The ALJ determined that no common-law

marriage had existed, and that although the deceased worker was Benita's

father, he was not contributing to her support within the meaning of the

Social Security Act (the Act) at the time of his death, since the Act

requires regular and substantial contributions. Therefore, the

applications for survivor's benefits were denied. The ALJ's decision

became the Secretary's final determination when the Appeals Council found

no basis for review. The determination was affirmed by the District Court

for the Western District of Pennsylvania. Ms

al Security Act (the Act) at the time of his death, since the Act

requires regular and substantial contributions. Therefore, the

applications for survivor's benefits were denied. The ALJ's decision

became the Secretary's final determination when the Appeals Council found

no basis for review. The determination was affirmed by the District Court

for the Western District of Pennsylvania. Ms. McNeal appealed to the

United States Court of Appeals for the Third Circuit. The Court of Appeals

agreed with the district court that substantial evidence supported the

finding that no common-law marriage existed, but reversed the district

court on the issue of contributions to the child's support.

HOLDING:

The Court of Appeals held that the proper test for contributions is

whether the contributions were regular and substantial in relation to the

worker's income and the child's need.

STATEMENT AS TO HOW McNEAL DIFFERS FROM SOCIAL SECURITY

POLICY:

The "contributing to the support of the applicant" provision in section

216(h)(3)(C)(ii) (42 U.S.C. 416(h)(3)(C)(ii)) and similarly in section

202(d)(3) (42 U.S.C. 402(d)(3)) has been interpreted by the Social

Security Administration (SSA) in regulation 20 C.F.R. 404.366(a)(2) to

require contributions that are both regularly made and large enough to

meet an important part of the applicant's ordinary living costs. When

evaluating contribution to support, SSA attaches little relevance to the

worker's financial circumstances; it assesses contributions to support in

terms of the child's needs and the extent to which they were met by the

worker's contributions.

) to

require contributions that are both regularly made and large enough to

meet an important part of the applicant's ordinary living costs. When

evaluating contribution to support, SSA attaches little relevance to the

worker's financial circumstances; it assesses contributions to support in

terms of the child's needs and the extent to which they were met by the

worker's contributions.

The United States Court of Appeals for the Third Circuit adopted the test

and reasoning set by the Court of Appeals for the Fourth Circuit in Jones v. Harris , 629 F.2d 334 (1980): namely, that the levels of

income of both the father and of the household in which the child resides

are factors that must be considered in determining whether contributions

meet the statutory requirement of support. The loss of small, regular

contributions to a poor family would seem to cause the economic

dislocation the Act seeks to prevent.

EXPLANATION OF HOW SSA WILL APPLY THE DECISION WITHIN THE CIRCUIT:

This ruling applies only to cases where the child resides in

Pennsylvania, New Jersey, Delaware, or the U.S. Virgin Islands at the time

of determination or decision at any level of administrative review, i.e.,

initial, reconsideration, administrative law judge hearing or Appeals

Council.

In a claim for surviving child's benefits under section 202(d)(3) and

216(h)(3)(C)(ii) of the Social Security Act (42 U.S.C. 402(d)(3) and

416(h)(3)(C)(ii)) where the worker's income had been irregular or

insubstantial, the substantiality and regularity of the worker's

contributions to the child's support must be evaluated in light of the

financial resources of both the worker and the household in which

the child resides.

EFFECTIVE DATE:

Date of Publication