AR 86-22(4): Parsons v. Health and Human Services , 762 F.2d 1188 (4th Cir. 1985) -- Contributions to Support re: Posthumous Illegitimate Child -- Title II of the Social Security Act

AR 86-22(4)

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/REGULATION/RULING CITATION:

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

416(h)(3)(C)(ii)); 20 C.F.R. 404.366; Ruling 68-22

CIRCUIT:

FOURTH (MARYLAND, VIRGINIA, WEST VIRGINIA, SOUTH CAROLINA, NORTH

CAROLINA)

Parsons v. Health and Human Services , 762 F.2d 1188 (4th Cir.

1985)

APPLICABILITY OF RULING:

DESCRIPTION OF CASE:

Charles Bryant, the insured worker, lived with Evelyn Parsons on long

weekends from June 1981 until his death in March 1982, in a house

belonging to Mr. Bryant's cousin in Galax, Virginia. Mr. Bryant

contributed to the expenses of the house, and he and Ms. Parsons shared

their other expenses during the weekends. When they were not together in

Galax, Ms. Parsons lived with her mother in Independence, Virginia, where

she was employed. Mr. Bryant lived with his stepfather and worked in

Ennice, North Carolina. Mr. Bryant occasionally visited Ms. Parsons in

Independence.

In October 1981 Ms. Parsons became pregnant. Mr. Bryant and Ms. Parsons

continued their living arrangements in Galax but were never married to

each other. Mr. Bryant publicly acknowledged the child and informed his

family that he intended to take care of it. Mr. Bryant gave Ms. Parsons

money on several occasions, the total sum amounting to approximately

$50.00, to pay for her transportation to the doctor. After an initial

payment, insurance covered Mr. Parsons's doctor's bills. According to the

Court of Appeals decision, Ms. Parsons had no other expenses until after

Mr. Bryant's death on March 22, 1982.

family that he intended to take care of it. Mr. Bryant gave Ms. Parsons

money on several occasions, the total sum amounting to approximately

$50.00, to pay for her transportation to the doctor. After an initial

payment, insurance covered Mr. Parsons's doctor's bills. According to the

Court of Appeals decision, Ms. Parsons had no other expenses until after

Mr. Bryant's death on March 22, 1982.

Following the birth of the child, named Charles I. Bryant, Jr., Ms.

Parsons sought child's insurance benefits on his behalf based on the

deceased worker's earnings record. Under the circumstances of the case,

Charles Jr. could not qualify for benefits as the worker's child, unless

Section 216(h)(3)(C)(ii) of the Social Security Act applied. Under that

provision, satisfactory evidence must show that the applicant is the

worker's son or daughter and that the worker "was living with or

contributing to the support of" the applicant at the time the worker died.

An administrative law judge (ALJ) found that the worker was the father of

the boy but that he did not contribute any significant amounts of support

toward the needs of his son or Ms. Parsons and was not making any

significant contributions at the time of his death; therefore, the claim

for child's benefits was denied. Mr. Parsons appeals the denial to a

Federal district court. The district court subsequently affirmed the

Secretary's decision, and Mr. Parsons appealed to the Court of Appeals for

the Fourth Circuit, which reversed the judgment of the district court.

HOLDING:

rsons and was not making any

significant contributions at the time of his death; therefore, the claim

for child's benefits was denied. Mr. Parsons appeals the denial to a

Federal district court. The district court subsequently affirmed the

Secretary's decision, and Mr. Parsons appealed to the Court of Appeals for

the Fourth Circuit, which reversed the judgment of the district court.

HOLDING:

Citing the standard enunciated by the Second Circuit in Adams v.

Weinberger , 521 F.2d 656 (2d Cir. 1975), the court held that the

"regular" and "continuous" test to measure the support given the mother or

unborn child, as described in 20 C.F.R. 404.366, was a less relevant test

than whether the support by the father for the unborn child was

commensurate with the needs of the unborn child at the time of the

father's death. The court held that the latter test conforms to the text

of Section 216(h)(3)(C)(ii) of the Social Security Act and reflects the

purpose of the statute by focusing on the unborn child's needs in terms of

dependency at the time of the worker's death. The court noted that with a

minor exception, Ms. Parsons's medical needs were covered by insurance and

that the occasional payment by Mr. Bryant of Ms. Parson's transportation

costs to the doctor's office, amounting to approximately $50.00, sufficed

for all the needs of the unborn child at the time of Mr. Bryant's death.

The court concluded that Charles I. Bryant, Jr., was entitled to child's

insurance benefits.

STATEMENT AS TO HOW PARSONS DIFFERS FROM SOCIAL SECURITY

POLICY:

y insurance and

that the occasional payment by Mr. Bryant of Ms. Parson's transportation

costs to the doctor's office, amounting to approximately $50.00, sufficed

for all the needs of the unborn child at the time of Mr. Bryant's death.

The court concluded that Charles I. Bryant, Jr., was entitled to child's

insurance benefits.

STATEMENT AS TO HOW PARSONS DIFFERS FROM SOCIAL SECURITY

POLICY:

According to 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)), "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. According to SSR 68-22 and other

statements of policy by SSA, the "living with" or "contributing to

support" requirements are established for the posthumous child of a worker

when 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 Parsons , citing Adams v. Weinberger , held that

the measure of support given to the mother is not the test applicable to

the issue of dependency since the dependency of the mother is not the

issue, and the support for the unborn child need not be shown to be

regular and substantial. The test for dependency is whether the support by

the father for the unborn child 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 DECISION WITHIN THE CIRCUIT:

e unborn child need not be shown to be

regular and substantial. The test for dependency is whether the support by

the father for the unborn child 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 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 Maryland, Virginia, West Virginia, South

Carolina or North Carolina 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 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