AR 86-21(2): Adams v. Weinberger , 521 F.2d 656 (2d Cir. 1975) Contributions to Support re: Posthumous Illegitimate Child Title II of the Social Security Act.

AR 86-21(2)

EFFECTIVE DATE: 7/3/86

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.

STATUTE/REGULATIONS/RULING CITATION:

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

416(h)(3)(C)(ii); 20 C.F.R. 404.366(a)(2); Social Security Ruling

68-22

CIRCUIT:

SECOND (CONNECTICUT, NEW YORK, VERMONT)

Adams v. Weinberger , 521 F.2d 656 (2nd Cir. 1975)

APPLICABILITY OF RULING:

DESCRIPTION OF CASE:

In June of 1969, Peter McGinn and Rossini Adams began sharing his

Manhattan apartment above the restaurant that he operated even though

McGinn was married and the father of four children. Ms. Adams maintained a

mailing address and a room at her mother's home in Brooklyn. On weekends

Mr. McGinn visited his wife and children. While Mr. McGinn and Ms. Adams

were maintaining their joint abode in the Manhattan apartment, she became

pregnant. She continued to work as a bookkeeper while Mr. McGinn worked at

his restaurant. During this period he contributed money to her whenever

she asked for it and, on occasion, even without her request. These

payments totalled between $200.00 and $300.00 over the seven month period

of joint habitation. Mr. McGinn gave Ms. Adams the $100.00 registration

fee for the hospital room that he knew she would need when the baby

arrived. Additionally, he offered to pay the entire hospital bill which he

assumed would amount to approximately $1,000.00.

it and, on occasion, even without her request. These

payments totalled between $200.00 and $300.00 over the seven month period

of joint habitation. Mr. McGinn gave Ms. Adams the $100.00 registration

fee for the hospital room that he knew she would need when the baby

arrived. Additionally, he offered to pay the entire hospital bill which he

assumed would amount to approximately $1,000.00.

In January of 1970, Ms. Adams became depressed over Mr. McGinn's class of

friends and returned to her mother's home in Brooklyn to await the birth

of the child. There was no agreement between the two as to reconciliation

or marriage. After moving out, Ms. Adams would visit Mr. McGinn at his

restaurant several times each week. Mr. McGinn tried to convince Ms. Adams

that she should not work during the later stages of her pregnancy and that

she should return to the apartment where she could do some of his

bookkeeping if she felt the need to remain active. Mr. McGinn requested

that Mr. Adams give him the child to keep and care for if she did not want

it after its birth.

On February 18, 1970, Mr. McGinn was murdered. On March 8, 1970, Devlin

Adams was born. Ms. Adams sought child's insurance benefits on the

earnings record of Mr. McGinn which were denied through the hearing level.

At the hearing level the Administrative Law Judge (ALJ) denied Devlin

Adams' claim for surviving child's benefits because under section

216(h)(3)(C)(ii) there was insufficient evidence of paternity and at the

time of his father's death, Mr. McGinn had not been living with him or

contributing regularly or substantially to his support. Ms. Adams appealed

to the United States District Court for the Eastern District of New York

which upheld the Secretary's decision (except that it held that there is

no legal requirement that the support be substantial). Ms. Adams appealed

to the United States Court of Appeals for the Second Circuit which

reversed the district court's decision.

HOLDING:

y or substantially to his support. Ms. Adams appealed

to the United States District Court for the Eastern District of New York

which upheld the Secretary's decision (except that it held that there is

no legal requirement that the support be substantial). Ms. Adams appealed

to the United States Court of Appeals for the Second Circuit which

reversed the district court's decision.

HOLDING:

The Court of Appeals held that the appropriate test for determining

whether the worker was "contributing to the support" of his illegitimate

posthumous child is whether the support was commensurate with the needs of

the unborn child at the time of the father's death. Since Mr. McGinn had

provided the unborn child's mother with a rent-free apartment, had

sporadically contributed cash to her support and had made payment towards

her hospital bill for the birth of the child, the court concluded that the

test was met in this case.

STATEMENT AS TO HOW ADAMS DIFFERS FROM SOCIAL SECURITY

POLICY:

Under 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)(2)), "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. Under SSR 68-22 and SSA's

operating instructions, the "living with" or "contributing to 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.

nary living costs of the applicant. 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 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.

The court in Adams held that the measure of support given to the

mother is not the test applicable to the issue of support of the child

since the dependency of the mother is not the issue. Further, since an

unborn child is totally dependent on its mother for its "human needs," the

"regular" contributions requirement is "purposeless." The test for

dependency is whether the father's support 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 ADAMS 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 Connecticut, New York, or Vermont 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

satisfactory evidence establishes that the worker is the father of the

child and 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.

EFFECTIVE DATE:

Date of Publication.