Opinion
Civ. No. 01-3012
February 1, 2002
Elizabeth W. Holmes, Dakota Plains Legal Services, Eagle Butte, S.D., Attorney for Plaintiff.
Cheryl Schrempp Dupris, U.S. Attorney's Office, Pierre, S.D., Attorney for Defendant.
REPORT AND RECOMMENDATIONS FOR DISPOSITION
I.
The above-captioned social security case was referred to this Court by the District Court pursuant to 28 U.S.C. § 636(b) for the purpose of conducting any necessary hearings and submitting to it proposed findings of fact and recommendations for disposition of the case.
The Honorable Charles B. Kornmann, United States District Judge, presiding.
No hearings were held because none were needed to decide the case.
After careful scrutiny of the record and based on the totality of the circumstances present, the Court does now make and propose the following findings of fact, report and recommendations for disposition.
II.
Kimberly Low Dog, on behalf of her twin children, Meaghan and Morghan LeBeau (referred to individually as Mother, Meaghan and Morghan, or collectively as Low Dogs), applied for child's insurance benefits under the Social Security Act (the Act), 42 U.S.C. § 402(d) and 416(e), on February1, 1996. The Social Security Administration (SSA) denied the Low Dogs' application initially and upon reconsideration. They then requested and were given an evidentiary hearing before an Administrative Law Judge (ALJ), who later concluded that Meaghan and Morghan were not eligible for such benefits. The Appeals Council declined to review the ALJ's determination, making it the final decision of the Social Security Commissioner (Commissioner).
The Low Dogs thereafter sought judicial review of the Commissioner's decision, filing a complaint on May 11, 2001 pursuant to 42 U.S.C. § 405(g). The Commissioner answered the complaint and the Low Dogs moved for judgment on the pleadings. Both parties thereafter filed memoranda detailing their respective arguments.
III.
The general issue presented is whether Meaghan and Morghan are entitled to child's insurance benefits under 42 U.S.C. § 402(d)(1), (3). This question turns on whether the girls are the "children" of Daniel K. LeBeau, (Wage Earner), within the meaning of § 416(h)(3)(C)(i)(I).
For the reasons more fully explained below, the Court finds and concludes that Meaghan and Morghan are Wage Earner's "children" for purposes of the Act and should receive child's insurance benefits.
IV.
In 1994, Wage Earner moved from New York to South Dakota. Wage Earner was born and raised in South Dakota, where his parents still resided. At the time of the move, Wage Earner was married to, but separated from, his wife, Christine LeBeau (Wife).
Mother and Wage Earner first met in October, 1994 and lived together for approximately three months, beginning in January, 1995. In early April, 1995, Wage Earner ended his intimate relationship with Mother because test results disclosed that tumors in his brain had returned. Wage Earner then moved to his mother's home in or near Eagle Butte, South Dakota and resided there for a month or two.
Mother allegedly informed Wage Earner that she might be pregnant some time in April, 1995. Mother confirmed her pregnancy on May 10, 1995, with March 22, 1995 being estimated as the date of conception. Mother testified that she did not have sexual intercourse with any man other than Wage Earner at or around the time of conception.
On May 2, 1995, Wife, who traveled from New York to South Dakota, confronted Mother at the latter's place of employment about Mother and Wage Earner's relationship. A short time later, in July, 1995, Wage Earner moved, with Wife accompanying him, back to New York. On July 12, 1995, Mother, after an ultrasound was done on her, discovered that she was carrying twins. Wage Earner learned of this fact some time after he had reestablished his residency in New York.
During the first week of August, 1995, Wage Earner and Wife attended a sun dance in South Dakota. Later that same month, they both returned to New York.
After taking up residence again in New York, Wage Earner wrote at least two letters to Mother. In his September 15, 1995 letter, Wage Earner stated that he could not provide the "$$ support" he had previously talked to Mother about. In a letter dated October10, 1995, Wage Earner noted that he was aware of the fact that Mother was carrying "two . . . special spirits", presumably referring to Meaghan and Morghan, and thanked Mother for her "effort in their behalf". On November 22, 1995, Wage Earner died as a result of injuries he sustained in a motor vehicle accident that occurred near Brandt, New York. He remained a New York resident up to and at the time of his death.
Two days later, on November 24, 1995, Mother gave birth to Meaghan and Morghan. The birth certificates issued for the twins on January26, 1996, did not list a father.
Gilbert LeBeau, Wage Earner's father, testified that Wage Earner and Mother lived together from January, 1995 to April, 1995. He also testified that Wage Earner had informed him that Mother was pregnant with Wage Earner's children. In his testimony, LeBeau further stated that he had seen Meaghan and Morghan and that they strongly resembled his own children when they were the twins' age. He likewise testified that he had given Mother money so that she could purchase diapers, food and other necessities for the girls.
Not surprisingly, Wife disputes Mother's claim that Wage Earner is Meaghan and Morghan's father. In her March 19, 1996 statement, Wife contended that Mother has a reputation for "being with several men" and that as such "[t]here's a possibility that the babies may not be his [Wage Earner's]".
Following an evidentiary hearing held on September30, 1999 in tribal court, Wage Earner was declared to be the natural father of Meaghan and Morghan. In making its paternity determination, the tribal court found that Wage Earner had sent letters to LeBeau acknowledging that he was the father of the unborn children Mother was carrying and that Wage Earner wanted the children to have his name.
V.
A court's "role on review is to determine whether the Commissioner's findings are supported by substantial evidence on the record as a whole." McKinney v. Apfel, 228 F.3d 860, 863 (8thCir. 2000); Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000). The "substantial evidence on the record as a whole" standard is not synonymous with the less rigorous "substantial evidence" standard:
"Substantial evidence" is merely such "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." "Substantial evidence on the record as a whole," however, requires a more scrutinizing analysis. In the review of an administrative decision, "[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Thus, the court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contrary.Burress v. Apfel, 141 F.3d 875, 878 (8th Cir. 1998) (citations omitted). The court, though, "may not reverse the Commissioner's decision merely because substantial evidence exists in the record that would have supported a contrary outcome or because the court would have decided the case differently." McKinney, 228 F.3d at 863; see also, Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
VI.
The criteria for entitlement to child's insurance benefits are found in § 402(d). This statute provides that every "child" of an insured deceased wage earner is entitled to child's insurance benefits (survivor benefits) if the child has applied for such benefits, is married, under the age of eighteen and was dependent upon wage earner at the time of the wage earner's death.
The Act creates a series of dependency presumptions. A child is deemed dependent if she was living with or supported by the wage earner at the time of the wage earner's death, or is the legitimate child of the wage earner. § 402(d)(3). If the child is illegitimate, she may nonetheless be deemed legitimate for purposes of the Act (and hence considered dependent and entitled to benefits) if she can establish that the wage earner, prior to his death, acknowledged in writing that the child was his daughter. § 416(h)(3)(C)(i)(I); see also, Luke for Luke v. Bowen, 868 F.2d 974, 977-80 (8th Cir. 1989); Vance v. Heckler, 757 F.2d 1324, 1325-28 (D.C. Cir. 1985); Mack on Behalf of Wesley v. Sullivan, 813 F. Supp. 760, 764-65 (D.Kan. 1993).
The statute requires that a claimant provide proof of a biological relationship, i.e., that the child is the offspring of the wage earner. Luke for Luke, 868 F.2d at 978. The claimant invoking one of the alternative means of establishing entitlement under § 416(h)(3)(C) must prove, as an ultimate fact, that the wage earner was the child's natural parent. Id. at 979 ( citing McMillian by McMillian v. Heckler, 759 F.2d 1147, 1153 (4th Cir. 1985)).
The ALJ found that, based on the evidence of record, Meaghan and Morghan could not be deemed the children of Wage Earner under § 416(h)(3)(C)(i)(I) because he did not acknowledge in writing that the twins were his daughters. The Low Dogs then supplemented the record with a dispositional order, containing the tribal court's findings, but the Appeals Council refused to overturn the ALJ's decision, opining that the additional information submitted was "consistent with the evidence already of record in [the] case."
VII.
The ALJ and Appeals Council's findings are clearly erroneous and not supported by evidence that a reasonable mind would accept as being adequate to support the conclusion they reached. See Richardson v. Perales, 402 U.S. 389, 401 (1971); see also, Jacko for Alexander v. Bowen, No. LR-C-88-173, 1988 WL 242395 at **4-6 (E.D.Ark. 1988). In particular, their findings, on the written acknowledgment of paternity issue, were overwhelmed by substantial and undisputed evidence to the contrary. Jones v. Sullivan, 953 F.2d 1291, 1294-96 (11thCir. 1992); Vance, 757 F.2d at 1226-28.
Admittedly, the September 15, 1995 and October 10, 1995 letters Wage Earner wrote to Mother were not sufficiently specific, in and of themselves, to constitute an acknowledgment of paternity. These letters, however, when coupled with LeBeau's testimony in tribal court and the findings made therefrom, are more than enough to satisfy § 416(h)(3)(C)(i)(I)'s written acknowledgment requirement.
After hearing and considering the testimony of LeBeau, the tribal court expressly found that prior to his death, Wage Earner wrote LeBeau letters wherein Wage Earner acknowledged his parentage of the children Mother was pregnant with.
Under the SSA's own operations manual, written acknowledgment of paternity need not be made by any one particular document or be in any special form. SSA POMS §GN 00306.105A.1.,4. If such an acknowledgment no longer exists or cannot be obtained, the statutory requirements are met if "clear and convincing evidence shows that the [wage earner] acknowledged the child in writing." POMS §GN 00306.105A.4. The wage earner can effectively make his acknowledgment after conception occurs but before a child is born. POMS §GN00306.105A.2. In determining what constitutes written acknowledgment for purposes of the statute, state law definitions and judicial precedents are not controlling. POMS §GN 00306.105A.5.
The Programs Operations Manual, or "POMS", is a handbook for internal use by employees of the SSA. See Schweiker v. Hansen, 450 U.S. 785, 789 (1981).
These internal policies are consistent with the Commissioner's own codified rules and the prior rulings of the SSA. See 20 C.F.R. § 404.355(a)(3); Social Security Ruling 79-22, 1979 WL 15536 at *3 ("[N]either the Act nor the Regulations . . . requires that the acknowledgment be executed in any special way. Any statement written by the wage earner, or at his direction, which acknowledges . . . the claimant as the wage earner's . . . daughter is sufficient acknowledgment in writing to satisfy the statutory requirement."); Social Security Ruling 72-32, 1972 WL 12320 at *2 ("[W]hen a claimant for child's insurance benefits is the . . . daughter of an insured worker, and there is clear and convincing evidence that the worker timely acknowledged the child in writing . . . the statutory requirement for an acknowledgment in writing may be satisfied . . . ."). Together, they all require a claimant to prove that the wage earner acknowledged his parentage in writing before death. If the claimant shows this to be the case, paternity and thus legitimacy are presumed, unless the Commissioner is able to rebut the same with competent evidence.
The "written acknowledgment requirement has been interpreted by the [Commissioner] in a fashion that gives claimants the utmost favor." Garcia on Behalf of Garcia v.Sullivan, 874 F.2d 1006, 1007 (5th Cir. 1989).
Here, Meaghan and Morghan came forward with proof that Wage Earner, in letters he wrote to LeBeau and Mother, acknowledged that he was the twins' biological father. The Commissioner was unable to rebut this presumption or show that LeBeau's testimony, regarding the acknowledgment letters he received from Wage Earner, was suspect or otherwise unworthy of belief.
Such a showing would be difficult, if not impossible to make in the face of the ALJ's finding that LeBeau's testimony "was sincere and forthright."
Given LeBeau's testimony in tribal court, the Court is puzzled by the ALJ's findings that "the evidence of record does not demonstrate that the [Wage Earner] ever acknowledged in writing that [Mother] was pregnant with his . . . children" and that "[Wage Earner] did not acknowledge in writing that the claimant[s] [were] his daughter[s]". Jones, 953 F.2d at 1294-96; Mack On Behalf of Wesley, 813 F. Supp. at 765. These findings, which the Appeals Council upheld on a supplemented record, ignore, or at the very least, gloss over, the letters LeBeau received from Wage Earner acknowledging that he was the father of Mother's two unborn children. Id.
In view of the tribal court's findings that Wage Earner acknowledged his parentage in writing and its conclusion that there was clear and convincing evidence of paternity, the Court has little difficulty, on this record, in concluding that the "clear and convincing evidence" standard referred to in POMS §GN 00306.105A.4. has been met.
The desire to preserve and protect the social security trust fund from spurious claims should not be used to deny children's survivor benefits unless there is proof that a biological relationship is lacking. A searching review of the record clearly shows that the Commissioner cannot conclusively prove that Wage Earner is not the natural father of Meaghan and Morghan so as to overcome the statutory presumption of legitimacy found in § 416(h)(3)(C)(i)(I). This being the case, and in light of the requirement that courts must liberally construe the Act in favor of awarding survivor benefits to children, see Luke for Luke, 868 F.2d at 984 (Heaney, J., dissenting), the Court believes that Meaghan and Morghan are entitled to receive child's insurance benefits on the earnings record of Wage Earner.
Unlike the record evidence of non-paternity considered in Luke for Luke, the evidence establishing paternity in the instant case is substantial as well as reliable and easily trumps the largely self-serving evidence that was offered to disprove or at least call into question Wage Earner's parentage. Wife's confrontation with Mother at the latter's workplace on May 2, 1995 speaks volumes and taints the probity of Wife's non-testimonial statements. The Low Dogs presented overwhelming evidence that Wage Earner was Meaghan and Morghan's natural father and he acknowledged this in letters he himself wrote. Meaghan and Morghan are therefore presumed to be the legitimate and dependent children of Wage Earner and the evidence to the contrary (which comes primarily from Wife) falls well short of dispelling this presumption and vitiating the twins' entitlement to child's insurance benefits. Jones, 953 F.2d at 1294-96.
Having reached this conclusion, the Court finds it unnecessary to address or otherwise provide a recommendation on the Low Dogs' other claims and expresses no opinion as to the propriety of the same.
Because the evidence of record, including and especially that which was offered in and found to be fact by the tribal court, plainly establishes that Wage Earner acknowledged his paternity of Meaghan and Morghan in writing, the Court also does not believe that there is a need to remand this case to the Commissioner for an evaluation of the evidence or for a determination as to whether § 416(h)(3)(C)(i)(I) has been complied with.
VIII.
Based on the foregoing findings, conclusions and analysis and in light of the record as a whole, the Court hereby:RECOMMENDS that the Low Dogs' Motion for Judgment on the Pleadings (Docket No. 11), filed pursuant to § 405(g), be GRANTED and that judgment be entered awarding Meaghan and Morghan child's insurance benefits retroactively, commencing in February, 1996, and prospectively.