SSR 86-14c: SECTION 216(h)(2)(A) OF THE SOCIAL SECURITY ACT (42 U.S.C. 416(h)(2)(A)) RELATIONSHIP -- CHILD BORN OUTSIDE OF MARRIAGE -- INHERITANCE FROM FATHER -- ILLINOIS

20 CFR 404.354(b) and 404.355(a)

SSR 86-14c

Davis v. Heckler, 1A Unempl. Ins. Rep. (CCH) ¶ 16,146 (U.S.D.C. N.D., ILL.

1985)

NORGLE, District Judge:

This matter is before the court on Plaintiff's, Lula B. Davis, motion and

Defendant's, the Secretary of the Department of Health and Human Services

("Secretary"), cross motion for summary judgment. Ms. Davis seeks judicial

review of a final administrative decision of the Secretary's denial of her

application for children's insurance benefits under the Social Security

Act ("Act"), 42 U. S .C. §§ 402(d), 416(h). Because the Administrative Law

Judge's ("ALJ") decision under section 416(h) and Ill. Rev. Stat. Ch.

110-½ § 2-2 is not supported by substantial evidence, that decision is

reversed. The Secretary is ordered to pay the benefits to which the Davis

children are entitled.

The facts in this case are adequately set out in the ALJ's decision. Tr.

18-21. Therefore, only the facts required by this decision will be

discussed. Section 402(d) of the Act provides that an unmarried child of a

person who dies fully or currently insured may be entitled to a surviving

child's benefit if that child is under the age of 18 and was dependent at

the time of the parent's death. Mathews v. Luca, 427 U.S.

495 (1976). To determine if an applicant is the child of a deceased

insured the Secretary initially looks to the state law of intestate

succession. Section 416(h)(2)(A) provides:

42 U.S.C. § 416(h)(2)(A). There is no dispute that Mr. Smith was domiciled

in Illinois at the time of his death. The applicable provision of the

Illinois Probate Act, therefore, is Ill. Rev. Stats. ch. 110-½ § 2-2. that

section provides that an illegitimate child may inherit from his natural

father if "the decedent acknowledged paternity, and the acknowledgement is

proved by clear and convincing evidence." Under § 202, the term

"acknowledgment" must be applied in its non-technical sense. Mezel v. Mobley, 21 Ill. 2d 20, 22, 170 N.E. 2d 595 (1960).

e Act, therefore, is Ill. Rev. Stats. ch. 110-½ § 2-2. that

section provides that an illegitimate child may inherit from his natural

father if "the decedent acknowledged paternity, and the acknowledgement is

proved by clear and convincing evidence." Under § 202, the term

"acknowledgment" must be applied in its non-technical sense. Mezel v. Mobley, 21 Ill. 2d 20, 22, 170 N.E. 2d 595 (1960).

Prior to a discussion of the ALJ's decision in this matter we note that

the Secretary's decision must be supported by substantial evidence. The

Supreme Court has defined substantial evidence as "relevant evidence

[that] a reasonable mind might accept as adequate to support a

conclusion." Richardson v. Perales, 402 U.S. 399, 401

(1971). However, in arriving at a decision the ALJ is to consider all

competent and probative evidence; he should not merely pick and choose

from the evidence in order to support a particular conclusion. Whitney v. Schweicker, 695 F.2d 784, 788 (7th Cir. 1982).

[Uncontradicted Testimony]

In this case, the ALJ heard testimony from Ms. Davis that Mr. Smith was

the father of the three children. Moreover, she testified that Mr. Smith

acknowledged his relationship to the children on numerous occasions to

family and friends. The record contains statements from several of these

persons (most notably Mr. Smith's brothers) corroborating Ms. Davis'

testimony. Additionally, the ALJ herd the testimony of one Willie

Thompson, a neighbor and frequent visitor to the home of Ms. Davis, Mr.

Smith and the children. Mr. Thompson testified that Mr. Smith acknowledged

his relationship to the children "at least a half a dozen times" over the

years of their friendship. Tr. at 52. There is no indication in the

administrative record to contradict the above mentioned evidence. Instead,

the ALJ's decision rests primarily on the absence of corroborating

documentary evidence and various indications that Mr. Smith did not live

with Ms. Davis and the children

his relationship to the children "at least a half a dozen times" over the

years of their friendship. Tr. at 52. There is no indication in the

administrative record to contradict the above mentioned evidence. Instead,

the ALJ's decision rests primarily on the absence of corroborating

documentary evidence and various indications that Mr. Smith did not live

with Ms. Davis and the children. Neither of these considerations is

conclusive in a determination made under Ill. Rev. Stat. ch. 110-½ § 2-2.

See Cooper v. Harris, 499 F.Supp. 266, 268 (N.D. Ill.

1980).

The Secretary contends the Illinois appellate court's decision in Morelli v. Battelli, 68 Ill. App. 3d 410, 386 N.E.2d 328

(1st Dist. 1979), controls this case. In Morelli, the plaintiff

alleged he was the acknowledged illegitimate son of a decedent. He

produced testimonial evidence to support his allegations. The decedent's

estate, however, offered testimonial evidence which contradicted the

plaintiff's witness. The appellate court affirmed the circuit court's

resolution of the conflict in favor of the decedent's estate. The present

case does not involve conflicting testimony. In fact, the only testimony in this case favors Ms. Davis. The facts in Cooper v. Harris, supra , are closer to those in the present case.

In Cooper , a child was denied benefits under the Act because the

ALJ declined to give weight to oral testimony of the decedent's

acknowledgment of paternity in the absence of the "appropriate document." Id. at 268. The "appropriate document" consisted of a statement

signed by the decedent and later destroyed by fire in a government office.

In the place of any documentary evidence the plaintiff offered her own

testimony and that of relatives regarding the decedent's acknowledgment of

paternity. After noting that proof of paternity under § 2-2 is not limited

to written evidence, the court found the testimonial evidence overwhelming

in establishing the decedent's paternity. Id

d later destroyed by fire in a government office.

In the place of any documentary evidence the plaintiff offered her own

testimony and that of relatives regarding the decedent's acknowledgment of

paternity. After noting that proof of paternity under § 2-2 is not limited

to written evidence, the court found the testimonial evidence overwhelming

in establishing the decedent's paternity. Id. The Cooper court reached its decision under § 2-2 notwithstanding the absence of

any written acknowledgment of paternity. Id. ("The secondary evidence

[plaintiff] introduced more than satisfied the rule.")

Additionally, , in Larimore v. Chatterton, 64 Ill. App. 3d

470, 381 N.E.2d 76 (3d Dist. 1978), the appellate court held a decedent's

paternity was established by clear and convincing evidence despite the

fact that almost all of the evidence introduced by the Plaintiff was

testimonial in nature. Id. at 142-43. There the Defendant did not

offer conflicting testimonial evidence, but instead relied on the

Plaintiff's failure to produce a formal birth certificate. In using the

mother's testimony to support its holding, the court noted that she was in

the best position to know the facts regarding her child's paternity. Id. at 141. Thus, in the present case, Ms. Davis' testimony was not

subject to less weight merely because she failed to produce a formal birth

certificate or similar documentary evidence.

Based on the foregoing analysis it was erroneous for the ALJ to find that

Ms. Davis did not meet her burden under Ill. Rev. Stat. Ch. 110-½ § 2-2.

Therefore, under 42 U.S.C. § 405(g), the Secretary is ordered to pay the

benefits to which Doris, Lean and Jerome Davis are entitled. Plaintiff's

motion for summary judgment is granted and Defendant's cross motion for

summary judgment is denied.

IT IS SO ORDERED.