# SSR 73-52c: 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 > Federal · Rulings · In force URL: https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_73_52c ## Section - **Citation:** SSR 73-52c - **Heading:** 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 - **Jurisdiction:** Federal - **Kind:** Rulings - **Status:** In force - **Text as of:** August 14, 2026 - **Source:** Compiled text - **Location:** Social Security Rulings / OASI / Child's Insurance Benefits / SSR 73-52c ## Text 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. ## Nearby sections - [SSR 06-02p SSR 06-02p: Title II: Adjudicating Child Relationship Under Section 216(h)(2)(A) of the Social Security Act When Deoxyribonucleic Acid (DNA) Test Shows Sibling Relationship Between Claimant and a Child of the Worker Who Is Entitled Under Section 216(h)(3) of the Social Security Act](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_06_02p.md) - [SSR 60-1 SSR 60-1. CHILD MARRIED AND DIVORCED BEFORE FILING EFFECTIVE APPLICATION](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_60_1.md) - [SSR 61-18 SSR 61-18. EFFECTIVE DATE OF ADOPTION WHERE ADOPTING PARENT DIES AFTER INTERLOCUTORY DECREE BUT BEFORE FINAL DECREE](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_61_18.md) - [SSR 61-30 SSR 61-30. IRREVOCABLE SURRENDER OF CHILD TO PERSON WHO AGREES TO RAISE CHILD](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_61_30.md) - [SSR 61-52 SSR 61-52. CHANGE OF CIRCUMSTANCES SHORTLY BEFORE WORKER'S DEATH](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_61_52.md) - [SSR 61-64 SSR 61-64. LEGITIMATION OF CHILD BY INTERMARRIAGE OF PARENTS](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_61_64.md) - [SSR 62-53 SSR 62-53. RELATIONSHIP -- EFFECTIVE DATE OF LEGITIMATION OF CHILD BY INTERMARRIAGE OF PARENTS](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_62_53.md) - [SSR 63-15 SSR 63-15: SECTION 202(d). -- TERMINATION OF ENTITLEMENT TO CHILD'S INSURANCE BENEFITS -- ATTAINMENT OF AGE 18](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_63_15.md) - [SSR 63-28 SSR 63-28: SECTIONS 202(d), 216(e), and 216(h)(2)(A). -- RELATIONSHIP -- ADOPTED CHILD'S RIGHTS OF INHERITANCE FROM NATURAL PARENT](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_63_28.md) - [SSR 65-18 SSR 65-18: SECTION 202(d). -- CHILD'S INSURANCE BENEFITS -- LEGAL ADOPTION INSTITUTED BY WORKER IN OR BEFORE MONTH PERIOD OF DISABILITY BEGAN](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_65_18.md) - [SSR 65-20c SSR 65-20c: SECTIONS 202(d)(1), 216(e), and 216(h)(2). -- DEFINITION OF "CHILD" -- EQUITABLE ADOPTION](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_65_20c.md) - [SSR 65-35 SSR 65-35: SECTION 202(d). -- CHILD'S INSURANCE BENEFITS -- LEGAL ADOPTION BY CLAIMANT ENTITLED TO DISABILITY INSURANCE BENEFITS](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_65_35.md) - [SSR 65-36c SSR 65-36c: SECTIONS 202(d) and 216(h)(2)(A). -- RELATIONSHIP -- LEGITIMATION UNDER CALIFORNIA LAW](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_65_36c.md) - [SSR 65-51 SSR 65-51: SECTIONS 202(d) and 205(a). -- FINALITY OF DECISION -- REOPENING ON BASIS OF NEW AND MATERIAL EVIDENCE -- GOOD CAUSE](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_65_51.md) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_73_52c. 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