SSR 78-19c: SECTION 202(d)(1) and (d)(4), and 216(e) (42 U.S.C. 402(d)(1) and (d)(4), and 416(e)) -- CHILD'S INSURANCE BENEFITS -- DEFINITION OF STEPCHILD -- DEPENDENCY UPON WAGE EARNER WHILE NATURAL FATHER LIVING

20 CFR 404.325, 404.1109(b) and 404.1113(a)

SSR 78-19c

HOLLEY v. MATHEWS , 1A U.I.R. ¶ 15398, USDC, S.D. FLA. (7-7-77)

KING, District Judge:

Plaintiff brought this action pursuant to Section 205(g) of the Social

Security Act (42 U.S.C. § 405(g)) for judicial review of a final decision

of the Secretary of Health, Education and Welfare, granting her children

child's insurance benefits as children of wage-earner William Day Hixon,

but in less than full amount because of benefits awarded to stepchildren

of Mr. Hixon.

The only issue before this Court is whether the Secretary's determination

that the children involved were "stepchildren" of and "dependent" upon

William Day Hixon within the terms of the Act and thus entitled to child's

insurance benefits is supported by substantial evidence upon the record as

a whole. 42 U.S.C. § 405(g).

Plaintiff, on behalf of her children, [hereinafter "claimants"]

originally filed an application for benefits on August 25, 1975. Mr. Hixon

died on July 2, 1975. On October 20, 1975, claimants, as the surviving

natural children of the deceased wage earner, were awarded benefits,

commencing in July, 1975.

On September 22, 1975, Howard M. Sharp, Jr. [hereinafter "Murphy" Sharp]

and Anna T. Sharp filed their application for child insurance benefits as

surviving stepchildren of William Day Hixon. On the same date, an

application for mother's insurance benefits was filed by Mary Jo Hixon,

natural mother of Murphy and Anna, and widow of William Day Hixon.

Notification was sent to the claimants on November 18, 1975 that Mary Jo

Hixon and Murphy and Anna Sharp had filed for benefits and that should

they be awarded such benefits, claimants benefits would be reduced.

Claimants object to the awarding of these benefits and after the award was

made to Mary Jo Hixon and her two children, they requested a hearing.

, and widow of William Day Hixon.

Notification was sent to the claimants on November 18, 1975 that Mary Jo

Hixon and Murphy and Anna Sharp had filed for benefits and that should

they be awarded such benefits, claimants benefits would be reduced.

Claimants object to the awarding of these benefits and after the award was

made to Mary Jo Hixon and her two children, they requested a hearing.

A pre-hearing conference was held and the mother of the claimants,

Erlynne D. Holley, and her husband, Charles R. Holley, acting as their

attorney, appeared and it was agreed that a hearing was unnecessary. Mr.

Holley did submit a letter advocating the position of the claimants. On

September 15, 1976, the Administrative Law Judge entered a decision after

detailing his findings of fact and conclusions of law, which denied the

claimants' requested relief. A request for review of the decision was

filed on September 28, 1976 with the Appeals Council and resulted in the

affirmance of the decision on November 1, 1976. Plaintiff then sought

judicial review pursuant to 42 U.S.C. § 405(g) by filing the Complaint in

the instant case.

The following findings were entered by the Administrative Law Judge:

These findings were predicated upon the following evaluation by the

Administrative Law Judge of the evidence presented to him:

* *

Section 202(d) of the Act, in pertinent part, states that:

Section 216(e) of the Act, in pertinent part, provides that:

uant to 42 U.S.C. § 405(g) by filing the Complaint in

the instant case.

The following findings were entered by the Administrative Law Judge:

These findings were predicated upon the following evaluation by the

Administrative Law Judge of the evidence presented to him:

* *

Section 202(d) of the Act, in pertinent part, states that:

Section 216(e) of the Act, in pertinent part, provides that:

The record reflects that Mary Jo Hixon and the natural father of Anna and

Murphy Sharp were divorced pursuant to a court order of the Circuit Court

of the Twelfth Judicial Circuit in and for Collier County, Florida on

January 10, 1967. On September 8, 1967, Mary Jo Hixon married William Day

Hixon in Broward County, Florida. At that time, Anna and Murphy Sharp were

five and six years old, respectively. According to these facts, the

Administrative Law Judge initially determined whether Anna and Murphy

Sharp were considered "stepchildren" under the Act and were eligible or

benefits. The claimants proffered, prior to the Administrative Law Judge's

determination, that the Act and its regulations fail to define

"stepchild", and in their Memorandum of Law accompanying their Motion for

Summary Judgment, assert that the case law fails to interpret the

"stepchild as used in the Act. In this situation, the claimants contend,

the common law controls, and at common law, Anna and Murphy Sharp could

not have a stepparent as long as both of their natural parents were

living. The Court is unpersuaded by the novel argument of claimants'

counsel, and agrees with the Administrative Law Judge that Anna and Murphy

Sharp are the stepchildren of William Day Hixon.

sed in the Act. In this situation, the claimants contend,

the common law controls, and at common law, Anna and Murphy Sharp could

not have a stepparent as long as both of their natural parents were

living. The Court is unpersuaded by the novel argument of claimants'

counsel, and agrees with the Administrative Law Judge that Anna and Murphy

Sharp are the stepchildren of William Day Hixon.

The Social Security rulings cited by the Administrative Law Judge (and

the case law, infra ) demonstrate that Anna and Murphy Sharp are

stepchildren under the Act. SSR 61-52 ,

C.B. 1960-61, p. 42, illustrates that a child born of a marriage that ends

in divorce, custody of the child given to the natural mother, becomes the

stepchild of her mother's second husband. This is implicit in that

decision since the Judge had to first find a stepchild-stepparent

relationship in order to then go on to the crucial question of whether the

child was "dependent" on her stepfather at the time of his death. In SSR 66-11 , C.B. 1966, p. 55, a

stepchild was denied benefits under the Act because she was born while her

mother was engaged in an extramarital relationship, and subsequent to the

marriage of the deceased wage earner and her mother. Thus, the Act

contemplates that ". . . a child is the stepchild of a worker only if such

worker contracted a valid marriage with the child's mother while the

relationship of parent and child existed between the mother and child." SSR 66-11 , C.B. 1966, at p.

55.

mother was engaged in an extramarital relationship, and subsequent to the

marriage of the deceased wage earner and her mother. Thus, the Act

contemplates that ". . . a child is the stepchild of a worker only if such

worker contracted a valid marriage with the child's mother while the

relationship of parent and child existed between the mother and child." SSR 66-11 , C.B. 1966, at p.

55.

Furthermore, the parameters governing entitlement of child insurance

benefits under the Social Security Act are evidently broad ones. To be

eligible for benefits under the Act as a stepchild, one need not be the

"legal stepchild" of the deceased wage earner. Eisenhauer v.

Mathews, 535 F.2d 681 (2nd Cir. 1976). In Eisenhauer, the

deceased wage earner had never obtained a divorce from his first wife, but

still entered into a purportedly valid ceremonial marriage with a woman

who had four children from a prior marriage. Those four children were

declared eligible for benefits, thus establishing that the meaning of

"stepchild" under the Act extends beyond the "legal" definition.

The Court notes that an argument could be made that the case at bar is

distinguishable from the above-cited cases in that those cases do not

expressly refer one way or the other to whether the stepchild's natural

father is living, and if so, is obligated to support his child. This

matter is settled, however, by the Second Circuit Court of Appeals'

decision in Florio v. Richardson, 469 F.2d 803 (2nd Cir. 1972). In

that case a stepfather attempted to discontinue benefit payments to his

stepson once he was separated from the stepson's natural mother and again

when he divorced her. In support of his argument, the plaintiff proffered

that the natural father had "reassumed" the obligations of support of his

son. The court stated the following in regard to that argument:

469 F.2d 803 (2nd Cir. 1972). In

that case a stepfather attempted to discontinue benefit payments to his

stepson once he was separated from the stepson's natural mother and again

when he divorced her. In support of his argument, the plaintiff proffered

that the natural father had "reassumed" the obligations of support of his

son. The court stated the following in regard to that argument:

The court found the natural father's relationship with his son to have no

significance in the determination of a child's entitlement or divestment

of benefits, as it is not one of the "extrinsic events" or "objective

tests" delineated in the Act. This is true even though it will sometimes

result in inequities:

Thus, the case law, the statutory scheme and the policy underlying the

Act dictate that the determination of children's benefits, when dependent

upon the threshold consideration of who is a "stepchild" under the Act,

will bear no relationship with whether or not the child's natural father

is living and/or is supporting him. This Court thus finds that the

Secretary had substantial evidence to conclude that Anna and Murphy Sharp

were children as defined under 42 U.S.C. § 416(e) by virtue of their

mother's marriage to the deceased wage earner and were eligible for

benefits if found to be "dependent" on their stepfather.

Section 202(d)(1)(C) of the Act, 42 U.S.C. § 402(d), requires that a

child be "dependent" on the deceased wage earner in order to be entitled

to benefits. Section 202(d)(4), 42 U.S.C. § 402(d)(4) reads in pertinent

part:

Section 404.1113 of Regulations No. 4, in pertinent part, reads:

the deceased wage earner and were eligible for

benefits if found to be "dependent" on their stepfather.

Section 202(d)(1)(C) of the Act, 42 U.S.C. § 402(d), requires that a

child be "dependent" on the deceased wage earner in order to be entitled

to benefits. Section 202(d)(4), 42 U.S.C. § 402(d)(4) reads in pertinent

part:

Section 404.1113 of Regulations No. 4, in pertinent part, reads:

The record reflects that the Sharp children did not receive one-half of

their support from their stepfather, and the Administrative Law Judge so

found. The only question to be resolved is whether there was substantial

evidence to support the Administrative Law Judge's finding that the

children were "living with" their stepfather. In that regard, the

claimants do not question the Judge's finding that the Sharp children

shared the same residence with their stepfather, but do contend that there

was no evidence to support the finding that he exercised or had the right

to exercise parental control over them.

At the outset, the Court notes that the claimants have the burden of

refuting the children's eligibility for benefits, and so the finding of

the Secretary that the children were eligible for benefits was

presumptively valid and remained so until the claimants introduced

evidence to rebut this prima facia presumption. Eisenhauer v. Mathers,

supra. The Administrative Law Judge found "little evidence" in the

record regarding actual exercise of parental control, but found that the

deceased wage earner had the "right to exercise control" over the Sharp

children. This determination was based on the fact that he married the

natural mother of the children when the children were ages five and six

and lived with them for eight years for approximately ten months out of

each year. In their attempt to rebut these facts, the claimants proffered

that Hixon never ". . . assumed parental posture with reference to the

[children]

l" over the Sharp

children. This determination was based on the fact that he married the

natural mother of the children when the children were ages five and six

and lived with them for eight years for approximately ten months out of

each year. In their attempt to rebut these facts, the claimants proffered

that Hixon never ". . . assumed parental posture with reference to the

[children]. In addition, the claimants emphasized that the natural parents

had divided custody of the Sharp children.

The question of control or the right to exercise parental control is

separate from the question of financial support of a child under the Act.

This is clear from the wording of 202(d)(4) (42 U.S.C. 402(d)(4), which

deems a child to be dependent upon a stepparent if the child either "lives

with" or receives one-half of his support from the stepparent. In this

case, the fact that the natural father had custody of the children for two

months out of the year bears no rational relationship to the parental

control the children's stepfather actually or could have exercised during

ten months out of each year. Further, the claimants proffered "evidence

that William D. Hixon never" assumed parental posture" towards the

children is a mere conclusion with no factual basis in the record. In

short, the only evidence before the Administrative Law Judge

concerning the question of control was the ages of the children while they

lived with their stepfather and the length of time they lived with him;

both facts lead to a reasonable inference that he at least had the right

to exercise parental control.

Based on the foregoing, the undersigned concludes that there is

substantial evidence in the record to support the finding that the

children, Anna and Murphy Sharp, were stepchildren of the deceased wage

earner, William Day Hixon, and were "living with" him at the time of his

death.

;

both facts lead to a reasonable inference that he at least had the right

to exercise parental control.

Based on the foregoing, the undersigned concludes that there is

substantial evidence in the record to support the finding that the

children, Anna and Murphy Sharp, were stepchildren of the deceased wage

earner, William Day Hixon, and were "living with" him at the time of his

death.

ORDERED AND ADJUDGED that plaintiff's Motion for Summary Judgment be, and

the same is hereby, DENIED, and the decision of the Secretary reducing the

children's insurance benefits of plaintiff under 42 U.S.C. §§ 203(a) is

AFFIRMED.