AR 86-23(9): Doran v. Schweiker , 681 F.2d 605 (9th Cir. 1982) Contributions to Support re: Posthumous Illegitimate Child Title II of the Social Security Act

AR 86-23(9)

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. 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 C.F.R. 404.366(a)(2); Social Security Ruling

68-22

CIRCUIT:

NINTH (ALASKA, ARIZONA, CALIFORNIA, GUAM, HAWAII IDAHO, MONTANA, NEVADA,

NORTHERN MARIANA ISLANDS, OREGON, WASHINGTON)

Doran v. Schweiker , 681 F.2d 605 (9th Cir. 1982)

APPLICABILITY OF RULING:

DESCRIPTION OF CASE:

Kyle Doran is the illegitimate child of Doris Clark and Kim Mace. Mr.

Mace and Ms. Clark began living together in December 1969. In early

January 1970, after Ms. Clark discovered that she was pregnant, Mr. Mace

publicly acknowledged his paternity. At the end of January, after a

disagreement, Ms. Clark moved out to a cabin on a ranch, where she was

provided free lodging, and, in return for taking care of a child, free

meals. During the time they lived together, Mr. Mace and Ms. Clark were

both unemployed. Each contributed to the rent and food from other funds.

After Ms. Clark left, Mr. Mace took a job. He did not contribute money to

her support, but at her request, he made three or four trips moving her to

the cabin, and hurried out to repair her roof during a rainstorm. He

killed himself March 16, 1970 when Ms. Clark was three months pregnant.

Kyle Doran was born October 3, 1970.

ployed. Each contributed to the rent and food from other funds.

After Ms. Clark left, Mr. Mace took a job. He did not contribute money to

her support, but at her request, he made three or four trips moving her to

the cabin, and hurried out to repair her roof during a rainstorm. He

killed himself March 16, 1970 when Ms. Clark was three months pregnant.

Kyle Doran was born October 3, 1970.

In 1974, Kyle Doran's application for child's insurance benefits on the

earnings record of Kim Mace was denied by an Administrative Law Judge

(ALJ) who found Doran ineligible for benefits because at the time of Mr.

Mace's death he was not living with or contributing to Doran's support:

Section 216(h)(3)(C)(ii). Doran appealed to the District Court for the

Northern District of California which remanded the case to the Secretary

for reconsideration in light of the Second Circuit's decision in Adams

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

1975). [1] On remand, the ALJ

again found Doran ineligible. The District Court affirmed the ALJ's

decision. Claimant appealed to the United States Court of Appeals for the

Ninth Circuit which reversed the District Court.

HOLDING:

The Court of Appeals following Adams held that the proper test for

determining whether the father was "contributing to the support" of his

illegitimate posthumous child is whether the parent's support was

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

father's death. The court further held that the economic circumstances of

the worker must be taken into account when making such a determination.

The court concluded that based on the record Mr. Mace had contributed

support according to his ability and the needs of the three-month-old

fetus. Thus the test was met.

STATEMENT AS TO HOW DORAN DIFFERS FROM SOCIAL SECURITY

POLICY:

e of the

father's death. The court further held that the economic circumstances of

the worker must be taken into account when making such a determination.

The court concluded that based on the record Mr. Mace had contributed

support according to his ability and the needs of the three-month-old

fetus. Thus the test was met.

STATEMENT AS TO HOW DORAN 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 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 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 Doran held 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. The court opined that the

Secretary must take into account the economic circumstances of the child's

father in determining whether, at death, he was contributing to the

claimant's support.

EXPLANATION OF HOW SSA WILL APPLY THE DORAN DECISION WITHIN THE

CIRCUIT:

utions 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 opined that the

Secretary must take into account the economic circumstances of the child's

father in determining whether, at death, he was contributing to the

claimant's support.

EXPLANATION OF HOW SSA WILL APPLY THE DORAN 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 Alaska, Arizona, California, Guam, Hawaii,

Idaho, Montana, Nevada, Northern Mariana Islands, Oregon or Washington 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. 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.

EFFECTIVE DATE:

Date of Publication

[1] Adams held that the

test of support by a father of his illegitimate posthumous child is

whether the support that was provided was commensurate with the needs of

the unborn child at the time of the father's death.