SSR 89-9c: SECTIONS 202(d)(1) AND (3), 216(e), 216(h)(2)(A), AND 216(h)(3)(C)(i)(I) OF THE SOCIAL SECURITY ACT (42 U.S.C. 402(d)(1) AND (3), 416(e), 416(h)(2)(A), AND 416(h)(3)(C)(i)(I)) RELATIONSHIP -- CHILD BORN OUTSIDE OF WEDLOCK -- INHERITANCE FROM FATHER -- SOUTH DAKOTA -- WRITTEN ACKNOWLEDGMENT

SSR 89-9c

EFFECTIVE/PUBLICATION DATE: 11/08/89

20 CFR 404.354 and 404.355

Luke for Luke v. Bowen, 868 F.2d 974 (8th Cir. 1989)

ROSS , Senior Circuit Judge:

Appellant Jeanette Luke (Luke), on behalf of her minor son, Scott E.

Luke, appeals the order of the district court [1] granting summary judgment in

favor of the Secretary of Health and Human Services and affirming the

Secretary's denial of Luke's application for surviving child's insurance

benefits under Title II of the Social Security Act, 42 U.S.C. § 402(d)(1).

666 F.Supp. 1340. The issue before this court is whether the Secretary's

decision to deny benefits is supported by substantial evidence. Finding

that it is, we affirm.

I.

On July 2, 1985, Luke filed an application for surviving child's

insurance benefits on behalf of her minor son, Scott E. Luke (Scott), on

the earnings record of Gary J. Groth, the deceased wage earner and alleged

biological father of Scott. On September 2, 1985, the claim was denied,

and that decision was upheld upon reconsideration. Luke then requested and

obtained a hearing before an Administrative Law Judge (ALJ) on May 20,

1986. On July 22, 1986, the ALJ rendered his decision finding that Scott

was not eligible for benefits because Luke had failed to establish that

Groth, the deceased wage earner, was Scott's biological father. The ALJ

based his decision on evidence introduced at the hearing, which is

summarized as follows:

Jeanette Luke lived with Gary Groth from July 1980 until she separated

from him in May 1984. They were never married. Luke testified that she did

not have sexual relations with anyone other than Groth during the period

that she lived with him. She further testified that she did not use any

birth control during that period because Groth had told her he had had a

vasectomy. However, in December of 1980, Luke discovered that she was

pregnant, and on August 29, 1981, she gave birth to her son, Scott, who is

the claimant in this action.

ot have sexual relations with anyone other than Groth during the period

that she lived with him. She further testified that she did not use any

birth control during that period because Groth had told her he had had a

vasectomy. However, in December of 1980, Luke discovered that she was

pregnant, and on August 29, 1981, she gave birth to her son, Scott, who is

the claimant in this action.

Luke testified that after she became pregnant, she and Groth consulted

with Dr. Irvin Kaufman to determine how, since Groth had had a vasectomy,

she could have become pregnant. On January 31, 1981, Dr. Kaufman advised

them that not all vasectomies are 100% effective. But when Dr. Kaufman

tested Groth's semen specimen on February 9, 1981, he found no sperm in

the specimen.

Notwithstanding the test results on Groth's semen specimen, Groth

referred to Scott as his son and publicly held himself out to be Scott's

father during the period that he (Groth) lived with Luke. Just one and

one-half months after Scott's birth, on October 16, 1981, Groth, who was

already receiving social security disability benefits, filed an

application for child insurance benefits on behalf of Scott. That

application was accompanied by a handwritten, signed statement in which

Groth declared that Scott was his natural child. [2] Scott was later determined

to be eligible to receive child's insurance benefits, but such benefits

apparently were terminated or never initiated upon the Secretary's finding

that Groth's disability had ceased. Groth reapplied for child's insurance

benefits on December 6, 1982 on behalf of Scott, [3] but this claim was later

denied on the basis that (1) Groth was not entitled to disability

benefits, and (2) Scott failed to meet the relationship requirement of 42

U.S.C. § 402(d) because new evidence, i.e., the medical report of Dr.

Irvin Kaufman, indicated that Groth was not capable of fathering Scott due

to a prior surgery.

rance

benefits on December 6, 1982 on behalf of Scott, [3] but this claim was later

denied on the basis that (1) Groth was not entitled to disability

benefits, and (2) Scott failed to meet the relationship requirement of 42

U.S.C. § 402(d) because new evidence, i.e., the medical report of Dr.

Irvin Kaufman, indicated that Groth was not capable of fathering Scott due

to a prior surgery.

The record reveals that Scott's birth certificate, filed in the State of

South Dakota, does not name a father. Luke reported that she did not list

Groth as the father because she and Groth were not married and because

Groth was out of town at the time of Scott's birth. Groth's name does

appear on Scott's hospital record of birth. Luke testified, however, that

she placed Groth's name on that certificate after she returned home from

the hospital.

After Luke separated from Groth in 1984, she received Aid for Dependent

Children (AFDC). She also received VA pension benefits for Scott under

Groth's name because the Veterans Administration had recognized Scott as

Groth's child. Luke testified, however, that Groth later attempted to

terminate Scott's VA benefits. The record also reflects that Groth

indicated that he had no children under 18 years of age when Groth applied

for disability insurance benefits on November 1, 1984.

Because Luke was receiving AFDC, the local department of social services

initiated a paternity suit against Groth on Luke's behalf. Luke reported

that a hearing in that case was set for June 10th or 11th, 1985, that

Groth hired Gary Blue, an attorney, to contest the action, but that Groth

did not appear for the hearing. Luke later learned that Groth had died on

June 13, 1985. Shortly thereafter, on July 2, 1985, Luke filed the instant

application for child's insurance benefits.

The ALJ specifically found that:

half. Luke reported

that a hearing in that case was set for June 10th or 11th, 1985, that

Groth hired Gary Blue, an attorney, to contest the action, but that Groth

did not appear for the hearing. Luke later learned that Groth had died on

June 13, 1985. Shortly thereafter, on July 2, 1985, Luke filed the instant

application for child's insurance benefits.

The ALJ specifically found that:

1. Scott Luke was not entitled to benefits as a legitimate or adopted

child of Groth, because Groth never married Jeanette Luke nor adopted

scott under state law.

2. Scott Luke failed to establish that Groth was his biological father;

that "there is clear and convincing evidence in the record that [Groth]

could not have fathered [Scott] during the relevant time period."

3. Scott Luke was not entitled to benefits under 42 U.S.C. §

416(h)(2)(A), because under South Dakota Law, S.D. Codified Laws §

29-1-15, he could not inherit as the illegitimate child of Groth. "[T]he

status of child [under the state statute] is primarily based on a

biological relationship which requires that the individual acknowledging

the child have had the capacity or opportunity to father the child."

4. Scott Luke was not entitled to benefits under 42 U.S.C. §

416(h)(3)(C)(i)(I), because Groth's written acknowledgment that Scott was

his son was insufficient in light of evidence that Scott had no biological

relationship to Groth.

ily based on a

biological relationship which requires that the individual acknowledging

the child have had the capacity or opportunity to father the child."

4. Scott Luke was not entitled to benefits under 42 U.S.C. §

416(h)(3)(C)(i)(I), because Groth's written acknowledgment that Scott was

his son was insufficient in light of evidence that Scott had no biological

relationship to Groth.

Thereafter, on September 29, 1986, the Appeals Council denied Luke's

request for review and the ALJ's decision became the final decision of the

Secretary. Luke subsequently filed this action for review of the

Secretary's decision in district court pursuant to 42 U.S.C. § 405(g). On

cross motions for summary judgment, the district court found that the ALJ

correctly determined that in order for an illegitimate child to be

eligible for benefits under either 42 U.S.C. § 416(h)(2)(A) or §

416(h)(3)(C)(i)(I) he must first establish a biological relationship to

the wage earner. The district court also found that substantial evidence

supported the conclusion that Groth was not Scott's biological father, and

thus Scott was not eligible for benefits under either 42 U.S.C. §

416(h)(2)(A) or § 416(h)(3)(C)(i)(I). This appeal followed.

II.

Luke argues that the district court erred by misinterpreting South Dakota

intestacy law (S.D. Codified Laws § 29-1-15) and 42 U.S.C. §

416(h)(3)(C)(i)(I), and by finding that the Secretary's decision was

supported by substantial evidence. Specifically, she argues that Scott,

though illegitimate, should be deemed legitimate and entitled to receive

benefits under 42 U.S.C. § 416(h)(2)(A) or § 416(h)(3)(C)(i)(I).

strict court erred by misinterpreting South Dakota

intestacy law (S.D. Codified Laws § 29-1-15) and 42 U.S.C. §

416(h)(3)(C)(i)(I), and by finding that the Secretary's decision was

supported by substantial evidence. Specifically, she argues that Scott,

though illegitimate, should be deemed legitimate and entitled to receive

benefits under 42 U.S.C. § 416(h)(2)(A) or § 416(h)(3)(C)(i)(I).

It is well established that where the Secretary has denied benefits, we

must affirm the Secretary's decision if it is supported by substantial

evidence on the record as a whole. See Sherrill for Sherrill v.

Bowen, 835 F.2d 166, 168 (8th Cir. 1987); Gavin v. Heckler, 811

F.2d 1195, 1199 (8th Cir. 1987). "This deferential standard of review

applies only to findings of fact, however, and 'no similar presumption of

validity attaches to the Secretary's conclusions of law * * *.'" Smith

v. Heckler, 707 F.2d 1284, 1285 (11th Cir. 1983) (quoting Wiggins

v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982)) (referring to the

Secretary's interpretation of state law). A federal district court's

interpretation of state law, however, is given special weight and

deferential review on appeal, and will not be reversed unless the

appellate court is convinced that the district court has incorrectly

ascertained or applied local law. Hazen v. Pasley, 768 F.2d 226,

228 (8th Cir. 1985) (citations omitted).

The general criteria for entitlement to child's insurance benefits are

found under 42 U.S.C. § 402(d)(1). Section 402(d)(1) provides that every

"child" of an individual who dies fully or currently insured under the Act

is entitled to child's insurance benefits if the child has applied for

such benefits, is unmarried, under the age of 18, and was dependent upon

the insured individual at the time of the insured's dead. Id.

* * * * * *

Allen v. Califano, 452 F.Supp. 205, 208 (D.Md. 1978) (emphasis

original) (footnotes omitted).

y

"child" of an individual who dies fully or currently insured under the Act

is entitled to child's insurance benefits if the child has applied for

such benefits, is unmarried, under the age of 18, and was dependent upon

the insured individual at the time of the insured's dead. Id.

* * * * * *

Allen v. Califano, 452 F.Supp. 205, 208 (D.Md. 1978) (emphasis

original) (footnotes omitted).

Under section 416(h)(2)(A), [4] Scott would be entitled to benefits if he would inherit from Groth under

the intestate laws of the state in which Groth was domiciled at his death.

Although Groth apparently died in a Minnesota hospital, the ALJ found that

Groth was domiciled in the State of South Dakota at the time of his death.

Therefore, the relevant statute is S.D. Codified Laws § 29-1-15, which

provides: "Every illegitimate child is an heir of the person who, in

writing, signed in the presence of a competent witness, acknowledges

himself to be the father of such child * * *."

The district court agreed with the ALJ's interpretation, citing Application of G.K., 248 N.W.2d 380, 385 (S.D. 1976) (Zastrow, J.,

dissenting) and In re Oakley's Estate, 149 Neb. 556, 31 N.W.2d 557

(1948), as support.

Luke asserts that the ALJ's and district court's interpretation of

section 29-1-15 is erroneous, because the statute explicitly uses the

terms "person," not "natural father" or "father," and "child," not

"natural child" or "biological child." She also notes that under South

Dakota law, S.D. Codified Laws § 25-8-49, an admission or acknowledgment

by an alleged father of paternity of an illegitimate child is prima facie

evidence of paternity. She thus argues that because Groth unequivocally

acknowledged Scott to be his child, Scott would have been entitled to

inherit from Groth, and now is entitled to benefits under 42 U.S.C. §

416(h)(2)(A).

hat under South

Dakota law, S.D. Codified Laws § 25-8-49, an admission or acknowledgment

by an alleged father of paternity of an illegitimate child is prima facie

evidence of paternity. She thus argues that because Groth unequivocally

acknowledged Scott to be his child, Scott would have been entitled to

inherit from Groth, and now is entitled to benefits under 42 U.S.C. §

416(h)(2)(A).

While the terms of section 29-1-15 do not make an explicit reference

requiring that there be a biological relationship between the child and

the person acknowledging paternity, we find that such a requirement is

reasonably implied under the statute. Such an interpretation is consistent

with Justice Zastrow's dissenting opinion in Application of G.K.,

supra, 248 N.W.2d at 385, albeit dicta, in which he made reference to

the rights of "natural" parents with respect to their illegitimate

children under South Dakota law, e.g., the right of a "natural father" to

secure his illegitimate child's right to inherit upon the father's written

acknowledgment of paternity under S.D. Codified Laws § 29-1-15. The ALJ's

interpretation is also consistent with S.D. Codified Laws § 25-8-49, which

provides that an admission of paternity by an alleged father is prima

facie evidence of paternity. [5] Acknowledgment of paternity under this statute will suffice, in most

cases, to establish an illegitimate child's right to inherit under section

29-1-15. But where, as here, the alleged father's acknowledgment of

paternity is rebutted by clear and convincing evidence that he was

incapable of fathering the child, the father's acknowledgment alone is

insufficient to confer the status of "child" for inheritance purposes. We

therefore conclude that the district court and ALJ did not err in

interpreting South Dakota law, section 29-1-15.

1-15. But where, as here, the alleged father's acknowledgment of

paternity is rebutted by clear and convincing evidence that he was

incapable of fathering the child, the father's acknowledgment alone is

insufficient to confer the status of "child" for inheritance purposes. We

therefore conclude that the district court and ALJ did not err in

interpreting South Dakota law, section 29-1-15.

Next we address the issue of whether section 416(h)(3)(C)(i)(I) of Title

42 [6] requires the claimant to

establish a biological relationship to the wage earner. Both the ALJ and

the district court concluded that it does. The district court based its

conclusion on (1) the definition of "child" found within 42 U.S.C. §

416(e), (2) the language of 42 U.S.C. § 416(h)(3)(C)(i)(I) requiring that

the applicant be the "son or daughter" of the wage earner, Pray v.

Department of Health, Education and Welfare, 1999-81 Unempl. Ins. Rep.

(CCH) ¶ 16,665 (S.D. N.Y. Mar. 21, 1979), (3) 20C.F.R. §

404.355, [7] which specifically

provides that the claimant must be the insured's "natural child," and (4)

the legislative history of 42 U.S.C. § 416(h)(3). See Social

Security Amendments of 1965, S.Rep. No. 404, 89th Cong., 1st Sess., reprinted in 1965 U.S. Code Cong. & Admin. News 1943, 2049-50; see also Pray, supra, 1999-81 Unempl. Ins. Rep. (CCH) at ¶

16,666.

We find that the district court correctly determined that 42 U.S.C. §

416(h)(3)(C)(i)(I) requires the claimant to establish that he is the

biological child of the wage earner. This court has previously recognized

that proof of a biological relationship is a necessary antecedent

requirement under § 416(h)(3)(C)(ii). See Sherrill for Sherrill v.

Bowen, supra, 835 F.2d at 169; Jones for Carr v. Bowen, 829

F.2d 647 (8th Cir. 1987). Accord Imani ex rel. Hayes v. Heckler, 797 F.2d 508, 512 (7th Cir.), cert. denied, 479 U.S. 988, 107 S.Ct.

580, 93 L.Ed.2d 583 (1986); Greer by Greer v. Heckler, 756 F.2d

794, 798 (10th Cir. 1985)

l relationship is a necessary antecedent

requirement under § 416(h)(3)(C)(ii). See Sherrill for Sherrill v.

Bowen, supra, 835 F.2d at 169; Jones for Carr v. Bowen, 829

F.2d 647 (8th Cir. 1987). Accord Imani ex rel. Hayes v. Heckler, 797 F.2d 508, 512 (7th Cir.), cert. denied, 479 U.S. 988, 107 S.Ct.

580, 93 L.Ed.2d 583 (1986); Greer by Greer v. Heckler, 756 F.2d

794, 798 (10th Cir. 1985). Section 416(h)(3)(C)(ii) is simply an

alternative entitlement provision of § 416(h)(3)(C)(i), at issue in the

present case. We agree with the conclusion reached by the Fourth Circuit

in McMillian by McMillian v. Heckler, 759 F.2d 1147, 1153 (4th Cir.

1985), that:

Having determined that both 42 U.S.C. § 416(h)(3)(C)(i)(I) and §

416(h)(2)(A) (by virtue of the South Dakota intestate statute, § 29-1-15)

required the claimant to establish a biological relationship to the

insured wage earner, we now consider whether the Secretary's finding that

there was no biological relationship between Scott and Groth is supported

by substantial evidence on the record as a whole. This standard of review

requires that we take into account evidence which fairly detracts from its

weight. Piercy v. Bowen, 835 F.2d 190, 191 (8th Cir. 1987).

Luke asserts that the ALJ erred by giving greater weight to unreliable

evidence of non-paternity (i.e., sterilization by vasectomy) than to more

reliable evidence of paternity (i.e., Groth's written and public

statements acknowledging Scott as his son, Groth's attempts to obtain

child insurance benefits for Scott, Groth's tolerance of VA pension

payments to Luke for Scott's benefit after Luke separated from Groth,

Scott's physical resemblance to Groth)

le

evidence of non-paternity (i.e., sterilization by vasectomy) than to more

reliable evidence of paternity (i.e., Groth's written and public

statements acknowledging Scott as his son, Groth's attempts to obtain

child insurance benefits for Scott, Groth's tolerance of VA pension

payments to Luke for Scott's benefit after Luke separated from Groth,

Scott's physical resemblance to Groth). She argues that evidence of

Groth's vasectomy should have been given little weight because there was

evidence that vasectomies are not always successful in preventing

pregnancy, the date of Groth's vasectomy could not be

confirmed, [8] there was no

evidence verifying the identification or condition of the semen sample

tested by Dr. Kaufman, and a second semen sample was never tested to

confirm the results of the first semen test.

Having carefully considered the record, we find that the ALJ did not err

by giving greater weight to that evidence tending to prove non-paternity

than to the evidence tending to prove paternity. The record indicates that

Groth repeatedly admitted having had a vasectomy in 1970 or 1971, that the

vasectomy was performed at Crystal Medical Clinics, Crystal, Minnesota,

that vasectomies are successful in 399 out of 400 cases (or 99.75 percent

of the time), and that Groth's treating physician, Dr. Kaufman, found no

live or dead sperm in Groth's semen sample just a couple of months after

Luke became pregnant. We find this evidence was substantial and clearly

outweighed any declarations or belief Groth may have had that he was

Scott's father. We also find that the evidence of Groth's vasectomy and

semen test results was sufficiently reliable to be considered material on

the issue of paternity. [9]

live or dead sperm in Groth's semen sample just a couple of months after

Luke became pregnant. We find this evidence was substantial and clearly

outweighed any declarations or belief Groth may have had that he was

Scott's father. We also find that the evidence of Groth's vasectomy and

semen test results was sufficiently reliable to be considered material on

the issue of paternity. [9]

Furthermore, we cannot say that the record supports Luke's claim that

Groth's acknowledgment of Scott was unequivocal. Six months following

Luke's separation from Groth, Groth indicated on an application for

disability benefits that he had no children under the age of 18. The

record also indicates that Groth did not make regular child support

payments, because the local department of social services had to initiate

a paternity suit against Groth on Luke's behalf in order to secure child

support. Although Groth did not appear nor file an answer in that

proceeding, Luke testified that Groth had hired an attorney, Gary Blue, to

contest paternity in that action. Finally we note Luke's testimony

indicating that sometime after she had separated from Groth, Groth

attempted to terminate the VA pension benefits which were being paid to

Luke on Scott's behalf. These facts, we believe, substantially support the

ALJ's conclusion that despite Groth's written acknowledgment of Scott, he

(Groth) also had some misgivings about his biological relationship to

Scott. We also agree that it was to Groth's advantage for him to

acknowledge Scott as his child in order to receive additional benefits

from both the Secretary and the Veterans Administration at the time he was

living with Luke.

lly support the

ALJ's conclusion that despite Groth's written acknowledgment of Scott, he

(Groth) also had some misgivings about his biological relationship to

Scott. We also agree that it was to Groth's advantage for him to

acknowledge Scott as his child in order to receive additional benefits

from both the Secretary and the Veterans Administration at the time he was

living with Luke.

Based upon the foregoing considerations, we conclude that there is

substantial evidence on the record as a whole to support the Secretary's

decision to deny Luke's application for surviving child's insurance

benefits. Accordingly, we affirm the district court's entry of summary

judgment in favor of the Secretary.

[1] The Honorable John B. Jones,

United States District Court Judge for the District of South Dakota.

[2] The record also reveals that

on November 21, 1981, Groth filed an additional statement in which he

claimed to be the natural father of Scott. This statement was submitted

immediately after Groth's ex-wife, Barbara Groth, had submitted a letter

of protest with respect to Groth's application for benefits for Scott.

Scott's entitlement to benefits on the record of Groth would have reduced

the amount of benefits already being paid to Barbara Groth for the benefit

of James Groth, the youngest of four sons born to Barbara and Groth during

their marriage.

[3] Groth's December 6, 1982

application also sought benefits for his other minor son, James Groth.

[4] 42 U.S.C. § 416(h)(2)(A)

provides in pertinent part:

In determining whether an applicant is the child * * * [of the insured

individual under] this subchapter, the Secretary shall apply such law as

would be applied in determining the devolution of intestate personal

property by the courts of the State in which such insured individual is

domiciled at the time * * * of his death * * *

[4] 42 U.S.C. § 416(h)(2)(A)

provides in pertinent part:

In determining whether an applicant is the child * * * [of the insured

individual under] this subchapter, the Secretary shall apply such law as

would be applied in determining the devolution of intestate personal

property by the courts of the State in which such insured individual is

domiciled at the time * * * of his death * * *

[5] S.D. Codified Laws §

25-8-49, in effect creates a presumption of paternity upon the father's

acknowledgment or admission of paternity. The requisite burden of proof

for overcoming this presumption, as implicitly recognized by the ALJ, is

clear and convincing evidence. See Matter of F.J.F., 312 N.W.2d

718, 721 (S.D. 1981).

[6] 42 U.S.C. §

416(h)(3)(C)(i)(I) provides in relevant part:

* * * * * *

* * * * * *

[7] 20 C.F.R. § 404.355, which

interprets 42 U.S.C. § 416(h)(3)(C)(i)(I), provides in relevant part:

You may be eligible for benefits as the insured's natural child if one of

the following conditions is met:

* * * * * *

(c) You are the insured's natural child and your mother or father

has not married the insured, but the insured has either acknowledged in

writing that you are his or her child * * * (Emphasis added.)

[8] The record indicates that

the medical records of Groth's vasectomy were destroyed in a medical

clinic fire.

[9] In Sherrill for Sherrill

v. Bowen, 835 F.2d 166, 169 (8th Cir. 1987), we recognized that as

long as the evidence is material to the issues in question, it may be

considered by the ALJ, although such evidence would otherwise be held

inadmissible under the rules of evidence in a court of law.