Rescinded 1986

SSR 81-1c: Section 216(h)(3)(C)(ii) (42 U.S.C. 416(h)(3)(C)(ii))—Child's Insurance Benefits—Entitlement of Illegitimate Child—Contributions to Support—A Ruling of Nonacquiescence

20 CFR 404.355(d) and 404.366(a)

SSR 81-1c

BOYLAND, et al v. CALIFANO, 1A Unempl. Ins. Rep. (CCH) §16, 912 (6th CIR 1980)

The Social Security Administration (SSA) does not acquiesce in the court's decision that the plaintiff's children meet the support requirement in section 216(h)(3)(C)(ii) of the Social Security Act (the Act).

The plaintiff filed an application for survivor's insurance benefits on behalf of her two children on the decedent's earnings record, stating that (1) the children were born out of wedlock; (2) the decedent was the children's father; and (3) the decedent was neither living with nor contributing to the support of the children at the time of his death. It was later alleged that the decedent occasionally provided $5 or $10 for the children's support and allowed them to stay in his home for varying periods of time. According to other testimony, however, the decedent stopped contributing to the children's support several years before his death. When SSA determined that the decedent was not the father of the children and denied her application, the plaintiff filed a court appeal.

The district court upheld SSA's denial of the plaintiff's application. Although it held that the decedent was the children's father, the district court found that there was substantial evidence to support SSA's determination that the deceased was nether "living with" nor "contributing to the support" of the children as required in section 216(h)(3)(C)(ii) of the Act. The plaintiff appealed the district court's decision.

Besides affirming the district court's decision that the decedent was the children's father, the court of appeals determined that the children met the support requirement in section 216(h)(3)(C)(ii) of the Act and, thus, were entitled to survivors insurance benefits on the decedent's earnings record. In reaching its decision, the court of appeals reasoned that, even though the contributions made by the decedent to the children were neither regular nor substantial, the contributions were important to them, considering their needs and the decedent's economic condition.

SSA holds that contributions made by the decedent to the children do not satisfy the support requirement in section 216(h)(3)(C)(ii) of the Act because (1) they were not made on a regular basis; (2) they were not large enough to meet an important part of the children's ordinary living costs; and (3) they were not made at the time of the decedent's death.

KEITH, Circuit Judge:


On December 15, 1975, plaintiff filed an application for surviving child's insurance benefits on behalf of Marilyn Lou and Lorenzo Knight[1] based on the Social Security earnings record of James Henry Hamilton, who died February 26, 1975. The plaintiff claimed that Mr. Hamilton was the father of the two children.[2] The Social Security Administration determined that the two children failed to satisfy the requirements for entitlements as the children of Mr. Hamilton.[3]

After Appellant's request for a hearing, an Administrative Law Judge (ALJ) considered the case de novo and on October 29, 1976, rendered a decision denying the surviving child's insurance benefits. In the view of the ALJ, the evidence failed to establish that either of the children was the "child" of the deceased wage earner within the meaning of the Act.[4] The Appeals Council adopted the judgment of the ALJ which became the final decision of the Secretary of Health, Education and Welfare on February 9, 1977.

Appellant then filed suit in the district court to obtain judicial review of the Secretary's final decision. Although the District Court held that the Secretary's finding that the deceased wage earner was not the father of the two children was unsupported by substantial evidence in the record, the Court granted summary judgment for the Secretary. The District Court's ruling that the deceased Hamilton was the father of the two children would entitle the claimants to the benefits in question providing the wage earner was also found to be living with or contributing to the support of the children at the time of his death. 42 U.S.C. §416(h)(3)(c)(ii). By granting summary judgment for the Secretary, the district court found substantial evidence that the deceased was not contributing to the support of the children at the time of his death.[5]

At oral argument before this Court, appellant Boyland raised a separate issue for the first time: is the proper time for making the determination of when the wage earner was contributing to the support of the children the time of the wage earner's death, as has been assumed throughout the litigation, or at the time the wage earner himself became entitled to Social Security benefits[6] Because we viewed this question as one of first impression, both parties received additional time to brief the issue.

Appellant urges this Court to adopt the vesting theory of entitlement. This theory asserts that the proper moment to determine whether the father of a child born out of wedlock contributed to the support of the child(ren) is when the wage earner himself became entitled to the Social Security benefits.[7] This early "vesting" would eliminate any examination into the nature of the wage earners' contributions to his children's support just before his death except when the wage earner dies before he becomes entitled to benefits. Such would be the case, argues the appellant, even though the child did not apply for benefits until after the wager earner died.

The government argues that contribution should be determined at the time of the wage earner's death because to do otherwise conflicts with the plain meaning of the applicable statute.[8] While it is true that the heading of the allegedly applicable statute, 42 U.S.C. §416(h)(3)(C)(ii), states "In the case of a deceased individual", the question remains whether Congress intended an earlier moment of vesting based upon the eligibility date of the wage earner hen the wage earner has died prior to a determination of eligibility.


We are of the opinion that the application by the claimant determines whether 42 U.S.C. §416(h)(3)(C)(ii) or 42 U.S.C. §41-6(h)(3)(A)(ii) controls. In other words, any vesting occurs by the filing of the application.[9] Other provisions of the Act support this conclusion. For example 42 U.S.C. §402(d)(1)(a) requires a child to file an application before entitlement to child's insurance benefits "vests." We think that Congress intended to created an alternative time to determine whether a deceased wage earner "contributed" to the support of the claimant while the wage earner was alive. Had the plaintiff filed an application for benefits prior to Mr. Hamilton's death, the controlling statutory provisions indicate that "contribution to the support of the children" may be shown at the time of the eligibility of the wage earner. However, we decline to interpret the introductory phrase of §416(h)3(i) "in the case of a deceased individual" as applying only where the insured died prior to age 65 and prior to eligibility for benefits.[10] There are no such qualifying words in the statute excluding those deceased individuals who were eligible for benefits before they died.[11] Consequently we conclude from the working of the statute, that Congress provided a "child" two opportunities for applying for benefits: One, when the wager earner, himself, becomes eligible for benefits and the other, when the wage earner dies. Unless an application has been filed by the child or on its behalf, whatever rights may exist, remain inchoate. We conclude that the government is correct on this issue and we may just make an overall examination of the wage earner's contributions to his children before he died.


There is no universally accepted test for determining what constitutes "contributing to the support of the applicant," under §416(h)(3)(c)(ii) of the Act. A majority of courts apply either a regular and substantial "support test" or a "regular and continuous support test."[12] Both approaches stress that "sporadic" contributions are insignificant for analytical purposes vis-a-vis the Act, presumably because the physical well being of the child is not enhanced by sporadic contributions. This is precisely the Secretary's position. In its argument, the Secretary concedes that the wage earner made some contributions, "(t)hey were . . . . not continuous and probably had stopped altogether sometime before Hamilton's death. Hamilton's contributions, therefore, cannot qualify as sufficient under either test."[13] Assuming, as the Secretary maintains, that Mr. Hamilton's contributions are inadequate under "either test," we find the tests inappropriate under these circumstances.

Obviously, continuously regular and substantial contributions is a just standard when the wage earner's income is regular and substantial. But where the income of a wage earner lacks continuity and substantiality and contributions are nevertheless given, a different criterion should be applied. Where a wage earner is poor and earns an irregular income, it is ludicrous to require regular and substantial payments to his children born out of wedlock or not. The wage earner is barely supporting himself. Instead, attention should be focused on whether the contributions that were made to the support of his children were important to them given their needs and the wage earner's economic circumstances and ability to support.[14] Certain facts place this case within the above category.

At the time of his death Mr. James Henry Hamilton was a retired stone mason with a minimum income. Two of his children lived with him. Two others lived with Mrs. Nannie Lou Boyland, their mother, who alternatively worked or relied on public assistance for additional support. Despite his poverty, Mr. Hamilton on numerous occasions gave $5.00-$10.00 to his children (living with their mother) or to others for them, bought them clothing and presents, gave them lunch money and allowed them to stay in his home for weeks at a time. We cannot ignore the obvious importance of these contributions to Marilyn Lou and Lorenzo Knight.[15]

The lack of economic well-being or regular income does not eliminate the statutory requirement of "contribution." However, where the resources of the wage earner are scare and the contributions to his children are important to them, the statutory requirements can be satisfied. We emphasize that the periodic contributions were made to the wage earner's own children albeit born out of wedlock. The children should not be denied benefits because the wage earner could only afford small irregular payments.

Accordingly, we find that the decision of the Secretary that James Henry Hamilton was not contributing to the support of his two children, Mary Lou and Lorenzo Knight, is unsupported by substantial evidence. This case is reversed and remanded for an award of benefits.

ENGEL, Circuit Judge, concurring in part and dissenting in part.

[1]The birthdates were June 27, 1959 and August 27, 1964, respectively.

[2]It appears from the record that the deceased, James H. Hamilton, lied in a common-law relationship with Mrs. Nannie Lou Boyland for about twenty (20) years. During this time, Mrs. Boyland alleged she bore five (5) children, all whom were fathered by the deceased.

[3]These requirements are as follows:


Section 202(d) of the Act (42 U.S.C. §402(d)(3)), as pertinent here, provides as follows: "(1) Every child (as defined in section 216(e) of this title)…of an individual who dies a fully or currently insured individual, if such child— (A) has filed application for child's insurance benefits

* * *

(C) was dependent upon such individual—

(ii) if such individual had died, at the time of such death... at the time specified in paragraph (1)(C), unless, at such time, such individual was not living with or contributing to the support of such child and—

(A) such child is neither the legitimate nor adopted child of such individual, or

(B) such child has been adopted by some other individual

(II) had been decreed by a court to be the father of the applicant, or

(III) had been ordered by a court to contribute to the support of the applicant because the applicant was his son or daughter, and such acknowledgement, court decree or court order was made before the death of such insured individual, or

(ii) such insured individual is shown by evidence satisfactory to the Secretary to have been the father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died."

[4]See n.3. supra.

[5]In March of 1975, following the departure of the decedent, plaintiff stated in her application for those benefits that "the other two (2) children [Marilyn and Lorenzo Knight live with me [plaintiff Nannie Lou Boyland] and Mr. Hamilton was not contributing to their support. This admission coupled with testimony (that Hamilton withdrew what little aid he was giving around 1972 after being convinced that the plaintiff's decision to marry someone else actually severed their pre-existing relationship) constituted the substantial evidence.

[6]Teresa Ann Joseph v. Mathews. CCH Unemployment Insurance Reports, 15, 709 (E.D. Ca. Jan. 10, 1978), was the first district court decision holding that where an illegitimate child applied for child's benefits based upon the earnings record of the deceased parent who had already become entitled to old-age benefits the question of whether or not the deceased was contributing to the support of the child is to be answered as of the time the wage earner became entitled to benefits or reached the age of 65, whichever came first, in accordance with 42 U.S.C. §416(h)(3)(A)(ii).

[7]Appellant relies on Florio v. Richardson, in support of his vesting theory. 469 F.2d 803 (1972). In Florio, unlike the appellants, the stepchild had filed an application and was receiving benefits under his stepfather's account. After he attempted to terminate his stepchild's benefit so that his natural child would have the full amount of the benefits. The Second Circuit ruled that the stepchild could not be divested of benefits because of subsequent events which would have disqualified the stepchild had the application followed rather than preceded the divorce. However, the Florio court makes repeated reference to the situation "at the time of application." See e.g., ID. at 806-7.

[8]42 U.S.C. §416(h)(3)(C)(ii).

[9]See n.8, supra.

[10]We understand that the district court in Joseph v. Mathews, supra, has adopted the view explicitly rejected by this court on the facts presented. We note that in the Joseph factual pattern the "evidence indicate(d) that Kennedy (insured) was a white liquor store owner in a black community in Kentucky and that plaintiff's mother was a 13 year-old black female at the time of plaintiff's conception. No bastardy action was brought against Kennedy because of the racial repercussions that might have arisen in the town: such an action, if successful, would have avoided the dispute under the terms of §416(h)(3)(A)(i) or section 416(h)(3)(C)(i). Id. at 2199-65.

[11]We find ample support for our position on this question. See United States v. Clark, No. 78-1513 (decided February 26, 1980), 48 U.S.L.W. 4195 (February 26, 1989).

Moreover, Congress has demonstrated in other social welfare legislation that it knows how to restrict the class of eligible beneficiaries to those living with individuals at a particular time. Id. at 4196 (emphasis added.)

See also n.4 Id.

Lalli v. Lalli, 439 U.S. 259 (1978); Mathews v. Lucas, 427 U.S. 49 (1976).

[12]Carey v. Social Security Board, 62 F.Supp. 458 (W.D. Ky. 1945), first applied the regular and substantial test holding that twenty-five percent of the child's total expenses satisfied the standard. In subsequent cases, the critical factor continued to be what portion of the child's support was derived from the contribution. See Miller v. Califano, CCH Unemployment Insurance Reporter,=15.370 (E.D. La. 1971), aff'd 462 F.2d 757 (4th Cir. 1972). The "regular and continuous" standard was propounded in response to a claim where the father, a casualty of Vietnam, had contributed six dollars and some infant habiliments. The court found such "contributions" sporadic and insignificant. Norton v. Richardson, 353 F. Supp. 596 (D. Md. 1972), vacated and remanded, 418 U.S. sub nom., Norton v. Mathews, 427 U.S. 524.

[13]Brief of Appellee at 17.

[14]Santiago v. Matthews, 431 F. Supp. 1213, 1215 (E.D. N.Y. 1977).

[15]Even the regulations of the Social Security Administration recognize that "support" includes in addition to cash, such things as food, shelter, clothing and other ordinary and customary items for the maintenance of the person supported. 20 C.F.R. §404.350 (c).

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