SSR 73-52c: SECTIONS 202(d)(1) and 216(h)(2)(A) (42 U.S.C. 402(d)(1) and 416(h)(2)(A)). -- RELATIONSHIP -- REBUTTING PRESUMPTION OF LEGITIMACY OF CHILD BORN IN LAWFUL WEDLOCK -- STERILITY OF ALLEGED FATHER

20 CFR 404.1101(c)(1) and 404.1109(c)

SSR 73-52c

Gatling v. Richardson, U.S.D.C., E.D. Va., Norfolk Div.,

Civ. No. 376-72-N (1/31/73) (CCH U.I.R. Fed. Par. 17,067)

MACKENZIE. District Judge: This matter proceeds upon the complaint

of plaintiff, an infant, that she has been improperly denied benefits

arising to her through the death of her alleged father, a social security

wage earner.

The plaintiff's application was filed March 20, 1970, was denied by the

Hearing Examiner on March 15, 1971, and was further denied by the Appeals

Council on March 13, 1972. This district court proceedings under 42 U.S.C.

§ 405(g) is timely filed.

Nellie S. Gatling, mother of plaintiff, and Norman W. Gatling, were

married October 7, 1956. During their marriage, on April 8, 1968, the

plaintiff, Cathy M. Gatling, was born. Norman W. Gatling was awarded a

final decree of divorce July 7, 1969. He died March 28, 1970.

The Social Security Act provides for the payment of monthly insurance

benefits to the natural child, stepchild, or adopted child of the worker.

To determine whether a child has the necessary relationship as "a child"

of the wage earner to be eligible for benefits, the law of Virginia is to

be applied in this case.

In his application for social security retirement benefits, filed

February 18, 1969, Gatling reported that his wife, Nellie, had run off

with another man and that Cathy was not his child. His bill of complaint

seeking a divorce denied his paternity, and the final decree of July 7,

1969, joined in and not objected to by his wife's attorney, specifically

stated that no children were born of the marriage to Nellie S.

Gatling. No alimony or child support was sought or awarded.

tling reported that his wife, Nellie, had run off

with another man and that Cathy was not his child. His bill of complaint

seeking a divorce denied his paternity, and the final decree of July 7,

1969, joined in and not objected to by his wife's attorney, specifically

stated that no children were born of the marriage to Nellie S.

Gatling. No alimony or child support was sought or awarded.

There is corroborative testimony -- from witnesses who repeat the wage

earner's denial, prior to his death, that Cathy was his child, including

sworn testimony of Mrs. Gatling's sister, that no children were born of

the marriage of the Gatlings. Likewise, there is evidence which would

corroborate Mrs. Gatling's claim that Cathy was Norman W. Gatling's

child.

The medical evidence is overwhelming and controverted. In 1961, years

before the plaintiff was born and then again in 1968, eight months before

plaintiff was born, the deceased wage earner was examined by Dr. John W.

Hollowel, a Urologist. On both occasions Dr. Hollowel found "bilateral

atrophy of the testes" and "total absence of sperm" in the semen of

plaintiff's alleged father. He further concluded unequivocally and

positively that the deceased wage earner was "completely sterile" and

"unable to father a child at any time since my first examination of him in

May of 1961 [through September 26, 1968]."

To receive Social Security benefits the plaintiff must show that she is

entitled to inherit personalty of the deceased wage earner under the

Virginia intestacy law. 42 U.S.C. § 416(e) and § 416(h)(2)(A). Only

adopted or legitimate children may take under applicable statutes. VA.

CODE ANN. § 64.1-11 (1968 Repl. Vol.). In that context Virginia case law

has developed a strong presumption in favor of the legitimacy of a child

born in wedlock, but this presumption may be rebutted by proof of

impossibility. Gibson v. Gibson, 207 VA. 189, 153, S.E. 2d 189

2 U.S.C. § 416(e) and § 416(h)(2)(A). Only

adopted or legitimate children may take under applicable statutes. VA.

CODE ANN. § 64.1-11 (1968 Repl. Vol.). In that context Virginia case law

has developed a strong presumption in favor of the legitimacy of a child

born in wedlock, but this presumption may be rebutted by proof of

impossibility. Gibson v. Gibson, 207 VA. 189, 153, S.E. 2d 189

(1967); Bowles v. Bingham, 2 Mumf. (16 Va.) 442 and 3 Mumf. (17

VA.) 599 (1811).

Plaintiff relies on Lucas v. Williams, 218 Md. 322, 146 A.2d 764

(1958) for the proposition that impossibility requires medical proof of

sterility on the very date of the alleged act of intercourse or a biopsy

of the testes. In Lucas it could not be shown that there was a

complete absence of sperm in the seminal fluid.

In Lucas the Maryland court quoted with approval the following

test from Schatkins, Disputed Paternity Proceedings (3d ed.):

In the case at bar, the test is met. Here there is direct, uncontroverted

medical evidence that bilateral atrophy of the testes of the deceased wage

earner caused "total absence f sperm" from 1961 until after the

probable time of conception. These facts when combined with other

corroborative testimony were clear and convincing evidence upon which the

trier of fact could conclude that it was impossible for the deceased wage

earner to have fathered the plaintiff.

We conclude that there is substantial evidence to support the findings of

the Secretary of Health, Education and Welfare.

The motion for summary judgment is GRANTED. The complaint is

dismissed.