20 CFR 404.320(a) and 404.607(a)(2)
Camden v. Richardson, U.S.D.C., S.D. Ohio, W. Div. Civ. No. 4041 (5/17/72); (CCH U.I.R. Fed. Par. 16,701)
WINDOM, Chief Judge: This is an action brought by plaintiff Delores Camden pursuant to Section 405(g), Title 42 U.S.C. seeking judicial review of a final decision of the Secretary of Health, Education & Welfare determining that plaintiff's child Walter Camden was entitled to child's insurance benefits, pursuant to Section 202(d) of the Social Security Act, 42 U.S.C. Section 402(d), as the child of his deceased father, Donald L. Brandenburg, beginning with the month of September, 1968.
The defendant Secretary and the plaintiff have filed cross- motions for summary judgment.
Plaintiff's child Walter Camden is the legitimate son of Donald Brandenburg who divorced the child's mother on October 27, 1952. The plaintiff mother was awarded custody of the child and the father was ordered to make support payments. On January 3, 1953 the plaintiff mother married William Camden. The child's father Donald Brandenburg died on December 11, 1953 fully insured under the Social Security Act. At the time of the father's death, the child Walter was living with his stepfather and was receiving more than one-half of his support from the stepfather.
Under the provisions of the Social Security Act eligibility for child's insurance benefits is limited to a child who is dependent upon a deceased insured parent or adopting parent. Under the provisions of the Social Security Act, effective at the time of Donald Brandenburg's death in 1953, a child living with and receiving more than one-half of his support from his stepfather was not deemed dependent upon his father for the purposes of entitlement to child insurance benefits. Section 202(d)(3)(C) of the Social Security Act, 42 U.S.C. Section 402(d)(3)(C). Thus at the time of Donald Brandenburg's death, his son Walter was not entitled to receive child's insurance benefits under the Social Security Act.
The impediment to the receipt of child's insurance benefits by Walter Camden under the Social Security Act was eliminated by the 1960 amendment to the Act embodied in Public Law 86-778, effective September 13, 1960. The 1960 amendment to the Social Security Act liberalized the dependency requirements for child's insurance benefits by deleting from Section 202(d)(3) the provisions of sub-paragraph (C) which had denied dependency status to a child living with and receiving more than one-half of his support from his stepfather. The 1960 amendments to the Social Security Act were made applicable to child insurance benefits under Section 202 of the Social Security Act for months beginning with the month in which the amendments were enacted [September 1960], "but only if an application for such benefits is filed in or after such month." Section 202(b) of Publ. L. 86- 778. The effect of the 1960 amendments was to render Walter Camden eligible for child insurance benefits under the Social Security Act provided an application for such benefits was filed in or after September, 1960.
The administrative record reveals that the plaintiff Delores Camden made inquiry of the Springfield Office of the Social Security Administration in the years 1954 and 1957 as to the eligibility of her son Walter for child's insurance benefits under the Social Security Act. In response to each inquiry the officials of the Social Security Office correctly advised the plaintiff that her son Walter was not entitled to Social Security Benefits under the provisions of the Act in effect at that time.
No further contact was made by plaintiff with the Social Security Office until September 15, 1969 when the plaintiff on behalf of her son Walter submitted a written certification for child insurance benefits. A formal application for benefits was filed by the plaintiff on November 10, 1969 and this application was given effect as of September 15, 1969. The Hearing Examiner, whose decision became the final decision of the Secretary, pursuant to the provisions of Section 202(j) of the Act, 42 U.S.C. Section 402(j) gave the application retroactive effect for the maximum period of 12 months and determined that plaintiff's child was entitled to benefits beginning with the month of September, 1968.
The plaintiff herein seeks to recover child insurance benefits on behalf of her son commencing September, 1960 the effective date of the 1960 amendment which liberalized the dependency eligibility requirement for child insurance benefits on the ground that plaintiff's inquiries to the Social Security Administration in the years 1954 and 1957 constituted a constructive application by Mrs. Camden for benefits on behalf of her son Walter and obligated the officials of the Social Security Administration to make Mrs. Camden aware of the 1960 amendments to the Social Security Act which rendered her son eligible for child insurance benefits. Plaintiff's contention is unmeritorious. Plaintiff's constructive application theory is clearly contrary to the provisions of Public Law 86-778 which require as a condition precedent to the receipt of child insurance benefits by virtue of the 1960 amendments to the Act that the applicant file an application for benefits in or after the month of September, 1960. Plaintiff failed to satisfy this condition precedent to eligibility under the 1960 amendments until she filed an application in 1969 and is therefore not entitled to retroactive benefits with the exception of the 12 month retroactive period provided for in Section 402(j) 42 U.S.C. Furthermore, the court finds nothing in the provisions of the Social Security Act which obligates the officials of the Social Security Administration to personally advise potential claimants of Social Security Benefits as to subsequent changes in the Social Security Act which renders them eligible for benefits.
The Court upon careful consideration of the Administrative record concludes that the Hearing Examiner's decision is supported by substantial evidence and that the Hearing Examiner correctly applied applicable law to the relevant facts.
Accordingly, the motion of the defendant Secretary for summary judgment hereby is SUSTAINED and the decision of the Hearing Examiner which became the final decision of the Secretary hereby is AFFIRMED. The motion of the plaintiff for summary judgment hereby is DENIED.