AR 86-15(6): Boyland v. Califano , 633 F.2d 430 (6th Cir. 1980); Parker v. Schweiker , 673 F.2d 160 (6th Cir. 1982); Childress v. Secretary of Health and Human Services , 679 F.2d 623 (6th Cir. 1982) -- The "contribution to support" requirement of section 216(h)(3)(C)(ii) of the Social Security Act

AR 86-15(6)

EFFECTIVE DATE: 5/20/86

ISSUE:

STATUTE/REGULATION/RULING CITATION:

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

404.366(a)(2); SSR

77-31

CIRCUIT:

SIXTH (MICHIGAN, OHIO, TENNESSEE, KENTUCKY)

Boyland v. Califano , 633 F.2d 430 (1980)

Parker v. Schweiker , 673 F.2d 160 (1982)

Childress v. Secretary of Health and Human Services , 679 F.2d 623

(1982)

APPLICABILITY OF RULING:

DESCRIPTION OF CASES:

Boyland

James Henry Hamilton was the father of two illegitimate children borne by

Nannie Boyland. At the time of his death, Mr. Hamilton was a retired stone

mason with a minimal income. On numerous occasions, he gave $5 $10 to his

illegitimate children (who lived apart from him), bought them clothes and

presents, gave them lunch money, and allowed them to stay in his home for

weeks at a time.

Nannie Boyland applied on behalf of her children for surviving child's

benefits on the earnings record of Mr. Hamilton. The claims were denied by

the Secretary, who found that Mr. Hamilton was not the father of Mrs.

Boyland's children. (In order to establish legal status as a "child" of

the worker under section 216(h)(3)(C)(ii) of the Social Security Act, 42

U.S.C. 416(h)(3)(ii), an individual must demonstrate by evidence

satisfactory to the Secretary that the worker was the mother or father of

the individual and must establish that the worker was living with or

contributing to the support of the individual at the time of the worker's

death.) On behalf of the children, Mrs. Boyland sought review of the

Secretary's decision in the United States District Court. Though finding

that Mr. Hamilton was the father of the children, the district court ruled

that the children could not satisfy the living with or contributing to the

support requirement of Section 216(h)(3)(C)(ii) of the Social Security Act

and granted summary judgment for the Secretary. Mrs. Boyland appealed to

the Court of Appeals for the Sixth Circuit.

Parker

ed States District Court. Though finding

that Mr. Hamilton was the father of the children, the district court ruled

that the children could not satisfy the living with or contributing to the

support requirement of Section 216(h)(3)(C)(ii) of the Social Security Act

and granted summary judgment for the Secretary. Mrs. Boyland appealed to

the Court of Appeals for the Sixth Circuit.

Parker

Bradley Parker was the illegitimate child of Gloria Parker and Harry

Roush, who lived together before, during, and for approximately two years

after Bradley's birth. Mr. Roush contributed to Bradley's support for at

least 10 years. For approximately the last year of his life, Mr. Roush was

extremely ill and either bedfast or hospitalized and made no contributions

to Bradley's support.

Gloria Parker applied for surviving child's benefits on Bradley's behalf

on the earnings record of Mr. Roush. As in Boyland , the claim was

denied by the Secretary, who found the evidence insufficient to establish

that Mr. Roush was Bradley's father. Gloria Parker, on behalf of Bradley

Parker, appealed the Secretary's decision to the United States District

Court. When the district court affirmed the Secretary's decision, Ms.

Parker appealed to the Court of Appeals for the Sixth Circuit.

Childress

Patrick Childress was the illegitimate son of Gary Rounsaville and Garner

Childress. Patrick did not live with Mr. Rounsaville, but Gary contributed

$15 $20 every month to help support Patrick.

he Secretary's decision to the United States District

Court. When the district court affirmed the Secretary's decision, Ms.

Parker appealed to the Court of Appeals for the Sixth Circuit.

Childress

Patrick Childress was the illegitimate son of Gary Rounsaville and Garner

Childress. Patrick did not live with Mr. Rounsaville, but Gary contributed

$15 $20 every month to help support Patrick.

Upon Gary's death, Patrick applied for surviving child's benefits on

Gary's earnings record. The Secretary denied Patrick's claim, concluding

that Patrick had not shown by satisfactory evidence that Gary made regular

and substantial contributions to his support and thus had not satisfied

the requirement of section 216(h)(3)(C)(ii) of the Social Security Act

that the insured individual was living with or contributing to the support

of the applicant at the time of the insured individual's death. Mrs.

Childress, on behalf of Patrick, sought review of the Secretary's decision

in the United States District Court. When the district court affirmed the

Secretary's decision, Mrs. Childress appealed to the Court of Appeals for

the Sixth Circuit.

HOLDINGS:

Boyland

The United States Court of Appeals for the Sixth Circuit heard the appeal

and reversed the district court's finding that the wage earner was not

contributing to the support of the children at the time of his death.

Though recognizing that the majority of courts supported the Secretary's

use of the "regular and substantial" or "regular and continuous" support

test, the court found the use of that test appropriate only where the wage

earner's income was regular and substantial

e district court's finding that the wage earner was not

contributing to the support of the children at the time of his death.

Though recognizing that the majority of courts supported the Secretary's

use of the "regular and substantial" or "regular and continuous" support

test, the court found the use of that test appropriate only where the wage

earner's income was regular and substantial. Calling it "ludicrous" to

require regular and substantial payments from a poor wage earner with an

irregular income, the court stated that the focus must be on "whether the

contributions that were made to the support of his children were important

to them given their needs and the wage earner's economic circumstances and

ability to support." In the instant case, the court held that the wage

earner's contributions of $5 $10 at a time, gifts of clothing, presents,

and lunch money, and housing of the children in his home for weeks at a

time constituted sufficient support given the circumstances of the wage

earner and the children.

Parker

The United States Court of Appeals for the Sixth Circuit heard the appeal

and reversed the district court. Relying on its prior opinion in Boyland , the court held that the "support requirement" of section

216(h)(3)(C)(ii) of the Social Security Act was not a fixed rule requiring

regular or substantial support but, rather, one requiring evaluation of

the support given in light of the father's and child's actual

circumstances. On the facts described above, the court found the support

test met.

Childress

its prior opinion in Boyland , the court held that the "support requirement" of section

216(h)(3)(C)(ii) of the Social Security Act was not a fixed rule requiring

regular or substantial support but, rather, one requiring evaluation of

the support given in light of the father's and child's actual

circumstances. On the facts described above, the court found the support

test met.

Childress

The United States Court of Appeals for the Sixth Circuit heard the appeal

and reversed the district court. Relying on its prior opinions in Boyland and Parker , the court held that the contributions of

$15 $20 per month were sufficient to satisfy the support test of section

216(h)(3)(C)(ii) of the Social Security Act in view of the meager

resources of both the wage earner and the mother of his illegitimate

child. The court further noted that the Secretary's "regular and

substantial" support standard had been newly incorporated in a regulation,

20 C.F.R. 404.366(a)(2), though the instant claim had been decided at the

administrative level prior to the regulation's effective date. While

expressly not deciding whether the regulation was inconsistent with the

reasoning of Boyland and Parker , the court opined that an

absolute or fixed standard of substantiality would be contrary to the

policy of the Social Security Act.

STATEMENT AS TO HOW BOYLAND , PARKER , and CHILDRESS DIFFER FROM SOCIAL SECURITY POLICY:

ministrative level prior to the regulation's effective date. While

expressly not deciding whether the regulation was inconsistent with the

reasoning of Boyland and Parker , the court opined that an

absolute or fixed standard of substantiality would be contrary to the

policy of the Social Security Act.

STATEMENT AS TO HOW BOYLAND , PARKER , and CHILDRESS DIFFER FROM SOCIAL SECURITY POLICY:

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

216(h)(3)(C)(ii) of the Social Security Act (42 U.S.C. 416(h)(3)(C)(ii)

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. Neither the regulation nor other policy

statements of SSA establish absolute standards of regularity or

substantiality. When evaluating contributions to support, SSA attaches

little relevance to the worker's financial circumstances but does consider

the child's circumstances when determining the importance of contributions

to the child.

Though recognizing the appropriateness of the Secretary's regulatory

definition where the worker had the income or means to make such regular

and substantial contributions, the United States Court of Appeals for the

Sixth Circuit held in the cases discussed above that the "regular and

substantial contributions" test was inappropriate in cases where the

worker was financially unable to make such contributions. In such cases,

the court held that the actual circumstances of the father and of the

child's household (i.e., the needs of the child and the financial ability

of the worker to contribute) are factors that must be considered in

determining whether contributions meet the statutory requirement of

support.

EXPLANATION OF HOW SSA WILL APPLY THESE DECISIONS WITHIN THE SIXTH

CIRCUIT:

utions. In such cases,

the court held that the actual circumstances of the father and of the

child's household (i.e., the needs of the child and the financial ability

of the worker to contribute) are factors that must be considered in

determining whether contributions meet the statutory requirement of

support.

EXPLANATION OF HOW SSA WILL APPLY THESE DECISIONS WITHIN THE SIXTH

CIRCUIT:

This ruling applies only to cases where the child resides in Michigan,

Ohio, Kentucky, or Tennessee 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 216(h)(3)(C)(ii)

of the Social Security Act (42 U.S.C. 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 applicant's support must

be evaluated in light of the financial resources of both the worker and

the child's household.

EFFECTIVE DATE:

Date Of Publication