[Federal Register Volume 59, Number 122 (Monday, June 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15496]


[[Page Unknown]]

[Federal Register: June 27, 1994]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Social Security Administration
[Social Security Acquiescence Ruling 94-1(10)]

 

Wolfe v. Sullivan; Contributions To Support re: Posthumous 
Illegitimate Child

AGENCY: Social Security Administration, HHS.

ACTION: Notice of Social Security Acquiescence Ruling.

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SUMMARY: In accordance with 20 CFR 422.406(b)(2), the Commissioner of 
Social Security gives notice of Social Security Acquiescence Ruling 94-
1(10).

EFFECTIVE DATE: June 27, 1994.

FOR FURTHER INFORMATION CONTACT:
Gary Sargent, Litigation Staff, Social Security Administration, 6401 
Security Blvd., Baltimore, MD 21235, (410) 965-1695.

SUPPLEMENTARY INFORMATION: Although not required to do so pursuant to 5 
U.S.C. 552(a)(1) and (a)(2), we are publishing this Social Security 
Acquiescence Ruling in accordance with 20 CFR 422.406(b)(2).
    A Social Security Acquiescence Ruling explains how we will apply a 
holding in a decision of a United States Court of Appeals that we 
determine conflicts with our interpretation of a provision of the 
Social Security Act (the Act) or regulations when the Government has 
decided not to seek further review of that decision or is unsuccessful 
on further review.
    We will apply the holding of the Court of Appeals decision as 
explained in this Social Security Acquiescence Ruling to claims at all 
levels of administrative adjudication within the Tenth Circuit. This 
Social Security Acquiescence Ruling will apply to all determinations 
and decisions made on or after June 27, 1994. If we made a 
determination or decision on your application for benefits between 
March 12, 1993, the date of the Court of Appeals decision, and June 27, 
1994, the effective date of this Social Security Acquiescence Ruling, 
you may request application of the Ruling to your claim if you first 
demonstrate, pursuant to 20 CFR 404.985(b), that application of the 
Ruling could change our prior determination or decision.
    If this Social Security Acquiescence Ruling is later rescinded as 
obsolete, we will publish a notice in the Federal Register to that 
effect as provided for in 20 CFR 404.985(e). If we decide to relitigate 
the issue covered by this Social Security Acquiescence Ruling as 
provided for by 20 CFR 404.985(c), we will publish a notice in the 
Federal Register stating that we will apply our interpretation of the 
Act or regulations involved and explaining why we have decided to 
relitigate the issue.

(Catalog of Federal Domestic Assistance Programs Nos. 93.802 Social 
Security - Disability Insurance; 93.803 Social Security - Retirement 
Insurance; 93.805 Social Security - Survivors Insurance; 93.806 
Special Benefits for Disabled Coal Miners; 93.807 Supplemental 
Security Income.)
Shirley S. Chater
Commissioner of Social Security



    Acquiescence Ruling 94-1(10)

    Wolfe v. Sullivan, 988 F.2d 1025 (10th Cir. 1993)--Contributions To 
Support re: Posthumous Illegitimate Child--Title II of the Social 
Security Act.
    Issue: Whether the contributions for support by the father of an 
unborn child commensurate with the needs of the unborn child at the 
time of the father's death establish support of the child in order to 
entitle the child to survivor's benefits as a deemed child, even though 
the contributions to the child or the child's mother were not regular 
and substantial. Further, whether the Secretary in determining if the 
worker was ``contributing to the support'' of the unborn child must 
consider such contributions in relation to the worker's economic 
circumstances.
    Statute/Regulation/Ruling/Citation: Section 216(h)(3)(C)(ii) of the 
Social Security Act (42 U.S.C. 416(h)(3)(C)(ii)); 20 CFR 404.366(a)(2); 
Social Security Ruling (SSR) 68-22.
    Circuit: Tenth (Colorado, Kansas, New Mexico, Oklahoma, Utah, 
Wyoming).
    Wolfe v. Sullivan, 988 F.2d 1025 (10th Cir. 1993).
    Applicability of Ruling: This Ruling applies to determinations or 
decisions at all administrative levels (i.e., initial, reconsideration, 
Administrative Law Judge (ALJ) hearing and Appeals Council). To the 
extent indicated, this ruling expands the tests for dependency status, 
as set forth in SSR
68-22, in the Tenth Circuit.
    Description of Case: Della Wolfe and Earl Bialczyk began living 
together in May 1988, although they maintained separate residences. 
During the time they lived together, Bialczyk purchased groceries so 
Wolfe could fix his favorite breakfast, purchased cigarettes for Wolfe, 
paid for her expenses when they went on dates, and installed an 
alternator in her car. In late August 1988, Wolfe learned that she was 
pregnant and informed Bialczyk of the pregnancy two days later. The 
couple separated in early September 1988. Bialczyk died on October 5, 
1988. David Weyburn was born to Wolfe on April 26, 1989.
    Weyburn's application for child's benefits on Bialczyk's earnings 
record was denied by initial and reconsideration determinations. 
Pursuant to section 216(h)(3)(C)(ii) of the Social Security Act (the 
Act), an ALJ found that Bialczyk was not Weyburn's biological father 
and, at the time of his death, he was not living with or contributing 
to Weyburn's or Wolfe's support. In concluding that the evidence did 
not establish that Bialczyk contributed to Weyburn's or Wolfe's 
support, the ALJ decided that the contributions were not regular and 
substantial, in cash or kind. The Appeals Council denied Weyburn's 
request for review of the ALJ's decision.
    The plaintiff sought judicial review alleging that the regular and 
substantial test was inappropriate with respect to contributions to a 
posthumous illegitimate child. The district court affirmed the 
Secretary's decision and found that the evidence did not prove that 
Bialczyk had contributed to Wolfe's support under either the regular 
and substantial test or the more liberal criteria for evaluating 
contributions to a posthumous illegitimate child utilized by the Ninth 
Circuit in Doran v. Schweiker, 681 F.2d 605 (9th Cir. 1982). Weyburn 
appealed and the United States Court of Appeals for the Tenth Circuit 
affirmed the judgment of the district court.
    Holding: The Court of Appeals agreed with the Doran court that the 
proper test for determining whether the father was ``contributing to 
the support'' of his posthumous illegitimate child is whether the 
father's support was commensurate with the needs of the unborn child at 
the time of the father's death. The court also agreed with Doran that 
the economic circumstances of the worker must be taken into account 
when making such a determination. The court stated that support may be 
shown by proof that contributions were made to either the unborn child 
(e.g., baby clothes or a crib) or the mother (e.g., food, shelter or 
medical care). The court further indicated that the contributions to 
the mother must have been made with knowledge of the pregnancy and that 
expenditures intended for courtship of the mother did not constitute 
contributions for support of the unborn child.
    Although the unborn child needed only minimal support when Bialczyk 
died, the court ruled that the evidence did not show that Bialczyk had 
contributed anything to Weyburn's or Wolfe's support after he learned 
of the pregnancy. Moreover, the court found that the controlling date 
for evaluating contributions under section 216(h)(3)(C)(ii) of the Act 
was at the time of Bialczyk's death in October 1988. By that date, 
Wolfe and Bialczyk had ended their relationship and the worker was no 
longer making any of the alleged contributions. The court concluded 
that, based on the record, the evidence failed both to satisfy the 
Secretary's test or prove under the Doran criteria that Bialczyk had 
contributed to the child's support according to his ability. Because of 
this holding, the court of appeals did not rule on the issue of the 
child's paternity.

Statement As To How Wolfe Differs From Social Security Policy

    According to the Social Security Administration's (SSA's) 
regulations implementing section 216(h)(3)(C)(ii) of the Act (20 CFR 
404.366(a)), ``contributions for support'' of the claimant must be made 
regularly and must be substantial. To be substantial, contributions 
must be large enough to meet an important part of the ordinary living 
costs of the claimant. A consistent pattern of contributions is 
sufficient to show regularity. Under SSR
68-22, and SSA's operating instructions, the ``living with'' or 
``contributing to the support'' requirements are established for the 
posthumous child of a worker if the worker was living with, or 
contributing to the support of, the child's mother at the time of the 
worker's death.
    In adopting the Doran criteria, the Wolfe court stated that the 
proper test for contributions is whether the father's support was 
commensurate with the needs of the unborn child at the time of the 
father's death, taking into account the father's economic circumstances 
at the time of his death.

Explanation of How SSA Will Apply The Wolfe Decision In The Circuit

    This Ruling applies only to cases involving an applicant for 
child's benefits as a deemed child under section 216(h)(3)(C)(ii) of 
the Act who resides in Colorado, Kansas, New Mexico, Oklahoma, Utah or 
Wyoming at the time of the determination or decision at any 
administrative level, i.e., initial, reconsideration, ALJ hearing or 
Appeals Council, and who was born after the worker died.
    Such an applicant will be deemed to be the worker's child when 
satisfactory evidence establishes that the worker is the father of the 
child and the worker's contributions to his unborn child, at the time 
of his death, were commensurate with the needs of the unborn child, 
even though the contributions were not regular and substantial. The 
economic circumstances of the worker (i.e., ability to contribute) will 
also be taken into account in determining whether the worker was 
contributing to the claimant's support. Support may be shown by proof 
that the worker made contributions to either the unborn child (e.g., 
baby clothes or a crib) or the mother (e.g., food, shelter or medical 
care). The worker's contributions must have been made with knowledge of 
the pregnancy. Expenditures intended for courtship of the mother will 
not be considered contributions to the unborn child.
[FR Doc. 94-15496 Filed 6-24-94; 8:45 am]
BILLING CODE 4190-29-F