QUESTION PRESENTED
This memorandum is in response to your request for a legal opinion on whether I1~
(I1~) is entitled to surviving child’s insurance benefits on T~ (deceased number holder)
earnings record (account). Specifically, you have asked whether siblingship deoxyribonucleic
acid (DNA) testing results showing that I1~ and I2~ (I2~) (the deceased number holder’s
acknowledged daughter, which the Social Security Administration found to be the number
holder’s natural child) are siblings establishes that I1~ is also the number holder’s
natural child. Additionally, for purposes of determining entitlement to any retroactive
benefits, if the DNA report is sufficient to establish I1~ as the number holder’s
child, you asked whether the DNA report grants inheritance rights only and establishes
the parent-child relationship prospectively only from the date of the report (September
2013), or if instead, it establishes the parent-child relationship retroactively. Finally
you asked, if I1~ is entitled to benefits, whether the agency can reopen a September
2011 application that I1~’s mother filed on his behalf and that the agency denied.
On January 10, 2014, our office released an opinion stating on page 9, footnote 10,
that a claimant’s application for benefits remains in effect until the agency makes
a final determination. 20 C.F.R. § 404.620(a). On the same date, you requested a revised
opinion addressing whether reopening applies in this case, which we address herein.
ANSWER
In our opinion, based on Social Security Ruling (SSR) 06-02p and Oklahoma intestacy
law, we find that the totality of the evidence, including the Social Security Administration’s
(agency) determination that I2~ was the number holder’s natural child, and the siblingship
DNA evidence, establishes that I1~ is also the number holder’s natural child. In addition,
under Oklahoma law, the parent-child relationship is established retroactively, not
prospectively from the DNA report. As such, I1~ is entitled to surviving child’s benefits
on the number holder’s account, retroactively, beginning April XX, 2013, six months
immediately before the month I1~ filed his October XX, 2013, application. Because I1~
presented new and material evidence to support his October XX, 2013 application, the
Agency may reopen the Agency’s denial of his September 2011 application.
BACKGROUND
As we understand the facts, the number holder died on August XX, 2011, while domiciled
in Oklahoma. On September XX, 2011, A~ (A~), I2~’s and I1~’s mother, filed survivor
benefit claims on their behalf asserting that they were the number holder’s natural
children. The number holder and A~ cohabitated in Tulsa, Oklahoma prior to his passing
on August XX, 2011, but they were not married. I2~, female, was born on November,
and I1~, male, was born on. Shortly after I2~’s birth, the number holder signed a
document acknowledging paternity of I2~. Additionally, her birth certificate lists
the number holder as I2~’s father. The agency granted I2~’s claim for surviving child’s
benefits on the number holder’s account. In contrast, the number holder’s name does
not appear on I1~’s birth certificate (and no other father is named), and the number
holder did not sign a document acknowledging paternity of I1~ prior to his death. The
agency granted I2~’s claim for surviving child benefits, but denied I1~’s claim for
surviving child’s benefits due to a lack of evidence of the relationship between I1~
and the number holder.
On October XX, 2013, A~ filed another surviving child’s benefit claim on I1~’s behalf.
In support of establishing a biological parent-child relationship, A~ submitted a
certified DNA test report dated September XX, 2013, showing a 99.999996 percent probability
that I2~ and I1~ are full siblings. A~ also submitted a November 1, 2011 statement
from T~ in which he stated that he was the number holder’s cousin, that the number
holder, A~, I2~, and I1~ lived with him from July 15, 2011 until the number holder’s
death, and that A~, I2~, and I1~ were still living with him as of the date of the
letter.
ANALYSIS
The Social Security Act (Act) provides that the child of an individual who dies as
a fully or currently insured individual (insured) is entitled to child’s insurance
benefits, beginning with the first month in which the child meets the criteria for
child’s insurance benefits. 42 U.S.C. § 402(d)(1) ; 20 C.F.R. § 404.352(a)(1). To
be entitled to child’s insurance benefits on the insured number holder’s account,
a child must: (1) be the number holder’s child; (2) be dependent upon the number holder;
(3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. 42 U.S.C.
§ 402(d)(1); 20 C.F.R. § 404.350(a)(1)-(5). The term “child” includes a natural child. 42 U.S.C.
§ 416(e)(1); 20 C.F.R. § 404.354. To qualify as a child of an insured individual under
section 216(e) of the Act, the applicant must be the natural child, legally adopted
child, stepchild, grandchild, stepgrandchild, or equitably adopted child of the insured
individual. See 42 U.S.C. § 416(e); see also 20 C.F.R. §§ 404.354 – 404.359. A~ has asserted that I1~ is the number holder’s natural
child, and there is no evidence or claim of adoption or status as a stepchild. Thus,
our focus is only upon whether I1~ is the number holder’s natural child.
Here, it is undisputed that on October XX, 2013, A~ filed, on I1~’s behalf, an application
for child’s insurance benefits. I1~ is unmarried and under the age of 18. The agency
will consider I1~ to be the number holder’s dependent child if I1~ is the number holder’s
natural child. See 20 C.F.R. § 404.361(a). Thus, the only remaining criterion I1~ must establish is
that he is the number holder’s natural child.
An applicant proves that he is a number holder’s natural child if:
he could inherit property through intestate succession as the number holder’s natural
child;
the number holder and the claimant’s other parent participated in a ceremony that
would have resulted in a valid marriage, except for a legal impediment;
the number holder has acknowledged that the child is his natural child in writing;
a court has decreed the number holder to be the claimant’s parent; or a court has
ordered the number holder to contribute to the claimant’s support because the claimant
is the number holder’s child; or
the number holder and the claimant’s other parent have not married, but the claimant
has evidence, other than the evidence described in (3) above, to show that the number
holder is the claimant’s natural parent, as well as evidence to show that the number
holder was either living with the claimant or contributing to his support at the time
the claimant applied for benefits, or at the time of the number holder’s death in
cases in which the number holder is not alive at the time of the claimant’s application.
See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4). Thus, there
is the state inheritance law method for establishing child status under 216(h)(2)(A)
of the Act, and there are three alternative federal standards for establishing child
status under 216(h)(2)(B) and (h)(3) of the Act.
According to the information that we received, A~ and the number holder were never
married and did not participate in a ceremony that would have resulted in a valid
marriage. The number holder never acknowledged I1~ as his child, and no court decreed I1~
to be the number holder’s child or ordered the number holder to contribute to I1~’s
support. Thus, we conclude that I1~ does not qualify as the number holder’s natural
child under tests two or three. There is some information indicating that the number
holder was living with I1~ at the time of his death, which is relevant to the fourth
test. We note that there is some inconsistency with regard to whether the number holder
was living with I1~ at the time of the number holder’s death. The information provided
indicates that the number holder and A~ cohabitated in Tulsa, Oklahoma, prior to his
passing in August 2011, but that they were not married. As noted above, A~ submitted
a November 1, 2011, statement from T~ in which he stated that he was the number holder’s
cousin and that the number holder, A~, I2~, and I1~ lived with him from July 15, 2011,
until the number holder’s death in August 2011. Similarly, in the October 2011 application
for benefits on I2~’s behalf, A~ reported that the children were living with the number
holder at the time of his death. However, in the 2013 application for benefits on I1~’s
behalf, A~ indicated that I1~ was not living with the number holder at the time of
death. However, we first address whether I1~ is a child entitled to inherit from the
number holder upon application of state intestacy laws under the first test under
section 216(h)(2)(A) of the Act.
Section 216(h)(2)(A) Analysis: Oklahoma Intestacy Law
Oklahoma law controls on this issue of intestate succession because the number holder
had his permanent home in Oklahoma when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Oklahoma law establishes
four methods for a child born out of wedlock to establish inheritance rights from
his purported biological father. See Okla. Stat. Ann. tit. 84,§ 215. These four methods are: (1) the father, in writing,
acknowledges himself to be the child’s father, (2) the father and mother intermarry
after the child’s birth, and the father, after such marriage, acknowledges the child
as his own or adopts it into his family, (3) the father publicly acknowledges such
child as his own, receiving it as such, with the consent of his wife, if he is married,
into his family and otherwise treating it as if it were a child born in wedlock, or
(4) the father is judicially determined to be such in a paternity proceeding before
a court of competent jurisdiction. Id.
The first three methods for establishing inheritance rights under Oklahoma law are
not applicable here because each method requires that the purported father acknowledge
paternity. See Okla. Stat. Ann. tit. 84, § 215. There is no evidence that the number holder ever
acknowledged I1~ as his child. I1~, therefore, must establish inheritance right under
the fourth method. Id. Although no court has determined through paternity proceedings that the number holder
was I1~’s father, the agency does not apply a state inheritance-law requirement that
an individual must obtain a court determination of paternity. See 20 C.F.R. § 404.355(b)(2) (use of state law standards). Instead, the agency decides
paternity using the standard of proof that the state court would use. Id.
Under Oklahoma law, the standard of proof to prove paternity is “clear and convincing
evidence.” See In the Matter of the Estate of K~, 837 P.2d 463, 464 (Okla. 1990) (overruled in other grounds). Oklahoma courts define
“clear and convincing evidence” as “that measure or degree of proof which will produce
in the mind of the trier of fact a firm belief or conviction as to the truth of the
allegation sought to be established.” In re A.L.F., 237 P.3d 217, 219 (Okla. 2010). Thus, in this case, an Oklahoma court would look
to whether A~ has established by clear and convincing evidence that the number holder
is I1~’s father.
The Oklahoma Uniform Parentage Act In 2006, Oklahoma adopted the Uniform Parentage
Act. Okla. Stat. Ann. tit. 10, § 7700-101 (Uniform Parentage Act). applies to parental
determinations in intestate and probate proceedings. In re Estate of D~, 286 P.3d 283, 290 (Okla. 2012). The Uniform Parentage Act governs every determination
of parentage in Oklahoma. Okla. Stat. Ann. tit. 10, § 7700-103(A). One of the means
of establishing paternity under the Oklahoma Uniform Parentage Act is through genetic
testing. Okla. Stat. Ann. tit. §§ 7700-501 – 7700-511. A genetic testing expert’s
report is generally admissible as evidence of the truth of the facts asserted in the
report. Okla. Stat. Ann. tit. 10, § 7700-621. In Oklahoma, “a man is rebuttably identified
as the father of a child if the genetic testing” reveals a 99 percent probability
of paternity and a combined paternity index of at least 100 to 1. Okla. Stat. Ann.
tit. 10, § 7700-505(A).
Additionally, to be admissible evidence to establish paternity, genetic testing must
satisfy certain other requirements. Okla. Stat. Ann. tit. 10, § 7700-503. First, the
DNA testing must take place in a laboratory the American Association of Blood Banks
(AABB), the American Society for Histocompatibility and Immunogenetics, or another
accrediting body designated by the Secretary of the United States Department of Health
and Human Services accredited. Okla. Stat. Ann. tit. 10, § 7700-503(A). Second, a
laboratory designee must sign the DNA test report under penalty of perjury. Okla.
Stat. Ann. tit. 10, § 7700-504(A). Third, testimony or documentation must establish
a reliable chain of custody. Okla. Stat. Ann. tit. 10, § 7700-504(B). Documentation
from the testing laboratory is sufficient to establish a reliable chain of custody
that allows the results of genetic testing to be admissible without testimony if the
documentation includes: (1) the name and photograph of each individual whose specimens
have been taken; (2) the name of each individual who collected the specimens; (3) the
places in which the specimens were collected and the date of each collection; (4) the
name of each individual who received the specimens in the testing laboratory; and
(5) the dates the specimens were received. Okla. Stat. Ann. tit. 10, § 7700-504 (A),
B).
When a specimen from an alleged father is not available, a court may order testing
of the man’s other children of the man and their mothers. Okla. Stat. Ann. tit. 10,
§ 7700-508(A)(3). Here, because the deceased number holder’s specimen was not available
for genetic testing, I1~ Although A~ submitted all the evidence on I1~’s behalf, for
purposes of our discussion, we will hereafter state that I1~ submitted the evidence.
submitted evidence, including genetic testing of himself, A~, and I2~ to establish
a biological relationship between himself, A~, and the number holder’s natural child,
I2~. For the reasons discussed below, we conclude that the genetic testing supports
a finding that I1~ is the number holder’s child.
Social Security Ruling (SSR) 06-02p explains that a claimant may qualify as a number
holder’s child under section 216(h)(2)(A) of the Act if the claimant shows through
DNA testing a high probability of a sibling relationship with another child (as section
216(h)(3) of the Act defines) of the number holder, and there is no reason to question
the parent-child relationship between the other child and the number holder. The December
13, 2011, Notice of Award letter regarding I2~’s application for surviving child’s
benefits does not specify the agency’s basis for determining that I2~ was the number
holder’s child. However, the agency determined that I2~ was the number holder’s natural
child under section 216(h)(3) based upon evidence submitted, including I2~’s birth
certificate and the number holder’s acknowledgment of paternity as to I2~. As such,
for the purposes of SSR 06-02p, I2~ is the known child of the number holder. We are
unaware of any reason to question this relationship between I2~ and the number holder,
and we now turn to the DNA report to determine whether under SSR 06-02p the results
show a high probability of siblingship, and whether it complies with Oklahoma law.
Specifically, A~ presented a DNA test report dated September XX, 2013, showing that
a laboratory representative took specimen to test for a biological relationship between
A~, I1~, and I2~. The DNA test report revealed the probability of full-siblingship
as 99.999996 percent, with a combined siblingship index of 32,063,282, with respect
to I2~ and I1~. Accordingly, we find that the requirements of SSR 06-02p and Oklahoma
law are met in this case. Moreover, the testing complies with Oklahoma law. The DNA
testing took place at the DNA Diagnostics Center, an AABB-accredited facility. Okla.
Stat. Ann. tit. 10, § 7700-503(A). John W. Peterson, Ph.D., the laboratory’s designee,
signed the DNA test report before a notary public and verified the interpretation
of the results, and the test report included A~’s, I2~’s, and I1~’s photographs. Okla.
Stat. Ann. tit. 10, § 7700-504(A), (B). Further, the DNA test records met all of the
chain of custody requirements under Okla. Stat. Ann. tit. 10, § 7700-504 (A),(B),
and would be admissible to induce an Oklahoma court to reach a firm belief that I1~
is I2~’s full sibling. Thus, the evidence submitted constitutes clear and convincing
evidence that I1~ is the number holder’s child.
Because the evidence shows that I1~ is the number holder’s child, I1~ satisfies the
first test for establishing a child relationship under section 216(h)(2)(A) of the
Act that he can inherit the number holder’s property through intestate succession
under Oklahoma law. As noted earlier at page 5, if an applicant does not qualify as
a child under section 216(h)(2)(A) of the Act, he or she may still be deemed by the
agency to be the child of the insured individual under three alternative federal standards
set forth in section 216(h)(3). However, we need not further examine whether the evidence
is sufficient to establish I1~ as the number holder’s deemed child under this alternate
federal standard because we conclude that I1~ is the number holder’s natural child
under Oklahoma’s intestate succession laws per section 216(h)(2)(A) of the Act.
See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). An applicant who satisfies the
requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the
insured number holder. See 20 C.F.R. § 404.361(a).
However, even if the genetic testing was not enough alone to identify the number holder
as I1~’s father, the additional evidence submitted supports his claim that he is the
number holder’s natural child. Oklahoma law provides that if genetic testing neither
identifies nor excludes a man as a child’s father, other evidence is admissible to
adjudicate the issue of paternity. Okla. Stat. Ann. tit. 10, § 7700-631(3). Here, I1~
presented additional evidence that supports his claim that he is the number holder’s
natural child, including T~’s, the number holder’s cousin, statement that the number
holder, A~, I2~, and I1~ lived with him from July 15, 2011, until the number holder’s
death, and that A~, I2~, and I1~ were still living with him as of the date of the
letter. This statement further supports the parent-child relationship between I1~
and the number holder.
The Parent-Child Relationship is Established Retroactively Under Oklahoma Law
Having found that I1~ is the number holder’s natural child under Oklahoma law, we
next examine whether I1~ is entitled to retroactive benefits on the number holder’s
account. If the insured is deceased, a child becomes entitled to benefits the first
month covered by the application for benefits in which the child meets all the requirements
for entitlement, one of which is the establishment of the parent-child relationship. See 20 C.F.R. § 404.352(a)(1); see also 20 C.F.R. § 404.350(a) (to be entitled to child’s insurance benefits, you must apply,
be the child, be dependent on the insured, be unmarried, and be under age 18). Under
the regulations, an applicant for child’s insurance benefits may be paid retroactive
benefits for up to six months immediately before the month of application. See 20 C.F.R. § 404.621(a)(2) (filing for dependents’ benefits). Agency policy is that
applicants for child’s insurance benefits not based on disability can be paid retroactive
benefits for up to six months immediately before the month of application. Program
Operations Manual System (POMS) GN 00204.030(B)(1) (policy for retirement and survivor
benefits).
The POMS distinguishes between three types of natural children, legitimate children;
illegitimate children; and illegitimate children legitimated after birth, and the
effective date of the establishment of the parent-child relationship among these children. See POMS GN 00306.001, 00306.010, 00306.050, 00306.055. These general POMS provisions recognize that “[u]under
current State laws, a child legitimated after birth is considered to be legitimate
from birth.” POMS GN 00306.050(A)(3); see also POMS GN 00306.085(A) (“A child is legitimate from the date of birth in these States,” which includes
Oklahoma). In addition, the general POMS provisions state that “[a]n act/event conferring
inheritance rights generally has effect only from the date of such act/event,” and
if the state law digest in the POMS “shows that a State law confers inheritance rights
based on an adjudication of paternity (but does not legitimate the child), and the
provision is effective prospectively only, the claimant’s status as the NH’s child
is established effective” as of the date of the evidence satisfying the applicable
standard of proof. POMS GN 00306.055(A)(3).
Oklahoma intestacy law has not maintained a substantive distinction between legitimate
and illegitimate children, and no longer provides a mechanism for legitimating children. Social
Security Ruling 85-17, examining a particular Wisconsin inheritance statute and this
issue of legitimacy, states generally that “courts have consistently distinguished
between statutes that legitimate children and those which merely confer inheritance
rights. While acts of legitimation tend to be given effective retroactive to the birth
of the child, acts which confer inheritance rights without legitimating the child
operate prospectively only.” SSR 85-17, 1985 WL 56848 (S.S.A. 1985) (noting that the
particular Wisconsin inheritance statute, which distinguished between legitimate children
and illegitimate children, did not confer legitimacy, but conferred only inheritance
rights, and as such, because there was no case law or legislative history to the contrary,
operated prospectively from the act conferring inheritance rights). See Okla. Stat. Ann. tit. 10, § 6.5 (effective July 1, 1974, the designations of “illegitimate”
or “bastard” shall not be used to designate a child born out of wedlock). Section
7700-202 of the Uniform Parentage Act, which Oklahoma adopted in 2006, explains that
“[a] child born to parents who are not married to each other has the same rights under
the law as a child born to parents who are married to each other.” Okla. Stat. Ann.
tit. 10, § 7700-202 (equal rights of marital and nonmarital children). Even prior
to adopting the Uniform Parentage Act, Oklahoma law sought to equalize the rights
of illegitimate and legitimate child. In 1974, the Oklahoma Legislature declared that
all children born within the State “shall be” deemed legitimate. See Okla. Stat. Ann. tit. 10, § 1.2 (repealed by Laws 2006, c. 116, § 62, effective Nov.
1, 2006). It was the intent of Oklahoma law to abolish the stigma of defining children
by terms of illegitimate and legitimate, but rather refer to them as children born
out of wedlock. See Okla. Stat. Ann. tit. 10, § 1.1 (repealed by Laws 2006, c. 116, § 62, effective Nov.
1, 2006); see also State ex rel. Dept. of Human Service on Behalf of Snellings v. Strohmeyer, 925 P.2d 77, 78 (Okla. Civ. App. 1995) (giving effect to “the obvious intent underlying
§1.1 to remove the socially stigmatizing terms of ‘illegitimacy’ and ‘bastard’ from
the legal lexison”).
As noted above, the Uniform Parentage Act applies to all parental determinations
in Oklahoma, including intestate and probate proceedings. See In re Estate of D~, 286 P.3d at 290. Furthermore, Oklahoma intestate succession laws explain that once
a child establishes that he is a child of a father, a child born out of wedlock stands
in same relation as a child born in wedlock. See Okla. Stat. Ann. tit. 84, § 215. Therefore, having established that I1~ is a child
of the number holder under Oklahoma intestacy law, I1~ is a child from his birth under
Oklahoma law for purposes of determining I1~’s entitlement to retroactive benefits.
If a claimant files an application after the first month the claimant could have been
entitled to benefits, the claimant may receive benefits for up to six months immediately
before the month in which he filed his application. 20 C.F.R. § 404.621(a)(2). I1~
filed his qualifying application on October XX, 2013. Thus, I1~ is entitled to retroactive
benefits beginning April 9, 2013, six months immediately before the month I1~ filed
his October 9, 2013, application.
The Agency Can Reopen I1~’s Prior Application
In addition, the agency can reopen I1~’s September 27, 2011 application. The sibling
DNA evidence that I1~ presented, coupled with the agency’s determination on December
13, 2011 that I2~ is the number holder’s natural child under section 216(h)(3), is
new and material evidence, which provides the agency with good cause to repen his
September 27, 2011 application. See 20 C.F.R. § 404.988(a),(b) (agency can reopen a prior claim within 4 years for good
cause); 20 C.F.R. § 404.989(a)(1) (agency will find that there is “good cause” to
reopen a determination or decision if the claimant provides “new and material” evidence); POMS GN 04010.030(B) (a final determination made be reopened within four years on the basis of new
and material evidence even though the determination, when made, was reasonable based
on the evidence in the file at that time).
Agency policy defines “new and material” as evidence that:
-
•
Was not a part of the claims ... file when the final determination or decision was
made; but
-
•
Relates back to the date of the original determination or decision; and
-
•
Shows facts that would result in a conclusion different from that originally reached
had the new evidence been introduced or available at the time of the original determination.
POMS GN 04010.030(A). Thus, the agency can reopen a decision based on new and material evidence where
the evidence relates back to the date of the prior determination. See POMS GN 04010.030(A).
Here, the sibling DNA evidence appears to meet the criteria for new and material evidence
because it was not part of the claims file when the prior determination was made in
2011; it relates back to the 2011 decision since the parties’ DNA presumably has not
changed; and it presents facts that would result in a different conclusion than that
originally reached had the new evidence been introduced at the time of the original
determination. Therefore, the DNA evidence provides good cause for reopening and the
agency may reopen its prior 2011 determination.
CONCLUSION
In our opinion, the totality of the evidence establishes that I1~ is the number holder’s
natural child. Therefore, in our opinion, the agency may award I1~ child’s insurance
benefits effective April XX, 2013, six months immediately before the month I1~ filed
his October XX, 2013 application and may reopen its determination in September 2011
that I1~ was not entitled to benefits.
Michael McGaughran
Regional Chief Counsel
By: Brock C. Cima
Assistant Regional Counsel