TN 4 (12-17)

A. PR 17-110 Evaluation of Reopening a Determination for Benefits - Child Born after Marriage but not Number Holder's Natural/Biological Child

Date: July 5, 2017

1. Syllabus

This opinion explains a situation where the agency awarded benefits based on a relationship that is later shown not to have existed, but more than four years have passed, the agency cannot reopen the initial determination and terminate the child’s benefits.

2. Opinion

Question Presented

May the Social Security Administration (SSA) reopen a prior determination and terminate child’s auxiliary benefits for B~ (the child), where genetic test results show 0.00% probability that he is the child of the number holder, E~ (the NH)?

Brief Answer

No. The agency suspended the child’s benefits on February XX, 2013, but did not complete a timely investigation into whether to revise the initial determination and none of the conditions that would allow the agency to reopen the initial determination more than four years later are present.

Background

The child began receiving auxiliary benefits from the NH’s record in November 2010 based on a presumption of legitimacy under Idaho state law. The NH had married the child’s mother on June XX, 2010. The child was born on October XX, 2010, and the birth certificate listed the NH as the child’s father. The NH has two other children (H~ and J~) who have received auxiliary benefits on his record since 2008.

In February 2013, the agency suspended the child’s auxiliary benefits based on evidence that the NH was not the child’s biological father.¹ The evidence upon which the agency relied at that time is no longer available in the agency’s system, but the NH has subsequently submitted genetic test results showing a 0.00% probability that the NH was the child’s father. It is our understanding that the child’s benefits have remained suspended, but the agency has not taken any further action on this claim before asking for this legal opinion.

Discussion

I. Federal Law on Child’s Insurance Benefits

To be entitled to child’s insurance benefits under the Act, the claimant must be the NH’s “child” as that term is defined in 42 U.S.C. § 416(e). 42 U.S.C. § 402(d)(1). One way to show a parent-child relationship is by applying State inheritance law. 42 U.S.C. § 416(h)(2)(A). The claimant can be considered the NH’s natural child if she could inherit the NH’s personal property as his natural child under State inheritance law, if the NH died intestate (i.e., without a will). Id.; 20 C.F.R. §§ 404.355(a)(1), (b)(1) & (4). Because the NH is living, we apply the law of the State where he had his permanent home at the time that the claimant filed her application. 20 C.F.R. § 404.355(b)(3); see also District of Columbia v. Murphy, 314 U.S. 441, 455 (1941) (“The place where a man lives is properly taken to be his domicile until facts adduced establish the contrary.” (citations omitted)). Lacking information or evidence to the contrary, we apply Idaho law.

II. Idaho State Law

In Idaho, the intestate estate passes to the decedent’s surviving spouse and issue. Idaho Code §§ 15-2-101 – 15-2-103. “Issue” means all of the decedent’s lineal descendants, and therefore, includes a child. Idaho Code § 15-1-201(26). A child conceived or born during a marriage is presumed to be the child of the husband. Idaho Code §§ 7-1119, 16-2002(12); Alber v. Alber, 472 P.2d 321, 326-27 (Idaho 1970). This presumption of the husband’s paternity can be rebutted by genetic tests that show that the husband is not the father of the child. Idaho Code § 7-1119.

III. Federal Law on Reopening

If a claimant has been entitled to benefits as the child of an insured individual, the Social Security Act defines a limited number of terminating events under the Act. See 42 U.S.C. § 402(d)(1)(D)-(H); 20 C.F.R. § 404.352(b). A later determination that the child is not the number holder’s biological child is not among those listed. See 42 U.S.C. § 402(d)(1)(D)-(H); 20 C.F.R. § 404.352(b). As a result, the agency may only stop the child’s benefits if the agency can reopen the original child-status determination. See 20 C.F.R. § 404.988.

The agency may reopen a determination for different reasons based on how much time has transpired since the initial determination. Within 12 months of the date of the notice of the initial determination, the agency may reopen the determination for any reason. 20 C.F.R. § 404.988(a). Within four years of the date of the notice of the initial determination, the agency may reopen the determination if the agency finds “good cause.” 20 C.F.R. § 404.988(b). In the event that the agency reopens and begins an investigation into whether to revise the determination before the end of that four-year period, the agency may nevertheless revise the determination after the period as long as the investigation was “diligently pursued.” 20 C.F.R. § 404.991a. “Diligently pursued” means that in light of the facts and circumstances of a particular case, the agency took and carried out the necessary action as promptly as the circumstances permitted. 20 C.F.R. § 404.991a(a). Diligent pursuit is presumed to have been met if the agency concluded the investigation and if necessary, revised the determination or decision within 6 months from the date the agency began the investigation. Id. If the investigation is not “diligently pursued,” the agency may revise the determination only if it will be favorable to the claimant. 20 C.F.R. § 404.991a(b). If the determination will not be favorable to the claimant, the agency will not revise the determination. Id.

After four years of the date of the notice of the initial determination, the agency may reopen in limited circumstances. See 20 C.F.R. § 404.988(c). Among the conditions listed for reopening, the agency may reopen a determination at any time if it was obtained by fraud or similar fault. 20 C.F.R. § 404.988(c)(1). The agency may also reopen after four years if another person files a claim on the same earnings record and allowance of the claim adversely affects the claimant’s claim. 20 C.F.R. § 404.988(c)(2). And finally, if the determination was fully or partially unfavorable to the claimant, the agency may reopen, but only to correct clerical error or an error that appears on the face of the evidence that was considered when the determination was made. 20 C.F.R. § 404.988(c)(8). All of the other special situations that would permit reopening are inapplicable. See 20 C.F.R. § 404.988(c).

IV. Analysis

In 2010, the agency made an initial determination and awarded auxiliary benefits to the child based on the presumption of legitimacy for a child born during wedlock pursuant to Idaho state law. The agency suspended the child’s benefits in 2013, a little over two years after the initial determination, when the NH provided evidence showing he was not the child’s biological father. The genetic testing the agency received may have rebutted the presumption of legitimacy, but for unknown reasons, the agency did not reopen the 2010 determination and seek to terminate the child’s benefits. Instead, no action appears to have been taken with respect to this claim until 2016 when the agency requested this legal opinion.

At this point, none of the conditions for reopening and revising the 2010 determination is present. The agency received information about the child’s relationship with the NH within four years of the initial determination, and even assuming that the suspension of the child’s benefits was a re-opening, the agency did not diligently pursue its investigation. As a result, and because a redetermination of the claim would likely be unfavorable to the child, this avenue for revision is now closed. See 20 C.F.R. § 404.991a(b) (explaining that if the agency did not diligently pursue its investigation, the agency will not revise a determination if it will be unfavorable).

Furthermore, none of the other conditions for reopening a determination after four years applies. 20 C.F.R. § 404.988(c) (listing conditions for reopening a claim after four years). The initial determination was based on the evidence available at the time – i.e., the NH and the child’s mother were married when the child was born. The field office found no evidence of fraud or similar fault. 20 C.F.R. § 404.988(c)(1). Further, the NH’s other children, H~ and J~, started receiving child’s benefits in 2008, before the child. No other person has filed a claim on the NH’s earnings record such that allowance of the claim would adversely affect the child’s claim. 20 C.F.R. § 404.988(c)(2). Finally, the initial determination was fully favorable to the child, and not the result of clerical error or an error that appeared on the face of the evidence. 20 C.F.R. § 404.988(c)(8). The child properly received benefits based on the information available at the time of the initial determination.²

In sum, in a situation such as this, where the agency awarded benefits based on a relationship that is later shown not to have existed, but more than four years have passed, the agency cannot reopen the initial determination and terminate the child’s benefits.

Conclusion

It is our opinion that the agency is unable to reopen and revise the determination that the child is entitled to benefits on the NH’s record.

Footnotes:

[1]

^. Under certain circumstances, the agency may suspend a claimant’s benefits before making a determination. 20 C.F.R. § 404.1596.

[2]

^. Agency guidance contemplates that if reopening is unfavorable to the claimant, the agency can reopen if an affirmative action in writing was taken by the appropriate person within the agency on new evidence within four years. POMS GN 04010.030C. The example provided by the agency to illustrate this guidance states that if the NH submitted new and material evidence to the agency within four years of the date of the notice of the initial determination and if the agency had taken an affirmative action in writing questioning the determination within the four-year period, the agency could reopen and revise the determination based on the new and material evidence. Id. However, even if the agency’s decision to suspend the child’s benefits is considered an affirmative action in writing as contemplated by this guidance, the agency did not “diligently pursue” its investigation as required by agency regulation. See 20 C.F.R. § 404.991a.