QUESTION PRESENTED
This memorandum is in response to your request for an opinion on whether the evidence
received after the Social Security Administration (agency) awarded surviving child’s
benefits to K1~ on the deceased number holder D~ (NH’s) record, specifically a court
judgment and a deoxyribonucleic acid (DNA) test showing a zero percent probability
of paternity, provides sufficient evidence to reopen K1~’s application and deny benefits.[1]
ANSWER
The DNA test results are unreliable and not admissible under Louisiana law, so the
court should not have relied on the results to make an implied finding of no paternity.
Thus, the judgment does not bind the agency. It is our opinion that the evidence does
not warrant reopening K1~’s application for child’s benefits.
BACKGROUND
A Louisiana birth certificate shows that on May 2011, L~ gave birth to K1~ and lists
the NH as K1~’s father. On May 2011, L~ and the NH signed a Louisiana Acknowledgment
of Paternity Affidavit before a notary public and two witnesses, certifying that the
NH was K1~’s biological father. The evidence indicates that the NH and L~ were never
married, they first lived with each other in August 2012, and they stopped living
together in October 2012.
On or about March 9, 2013, the NH died in Louisiana. On March 28, 2013, L~ applied
for Child’s Insurance Benefits -- Survivor Claim on K1~’s behalf as the NH’s child.
On June 22, 2013, the agency determined that K1~ was entitled to monthly child’s benefits
on the NH’s record beginning March 2013. The agency approved K1~’s application under
section 216(h)(3)(C)(i)(I) of the Act as the NH’s deemed child based on the NH’s acknowledgment.
On or about April 9, 2014, K2~, the NH’s mother, had a genetic testing company, AnyLabTestNow!/DNA
Diagnostics Center (the Laboratory), perform a DNA test on herself and K1~. The Laboratory
compared their DNA samples and determined that the probability of relatedness was
5.7%. The report generated from this test contains a disclaimer that because the DNA
samples were not collected under a strict chain of custody by a neutral third party
and the Laboratory could not verify the origin of the DNA samples, the test results
may not be defensible in a court proceeding.
On May 9, 2014, the NH’s mother initiated a small claims court case against L~ in
the Second Justice Court, Parish of Jefferson, State of Louisiana. The NH’s mother
alleged that L~ deceived the NH and her by asserting that the NH was K1~’s biological
father, and she sued L~ for “fraud, deceit, [and] for emotional, physical, mental,
and financial distress.” The NH’s mother requested that the court order a DNA test,
remove the NH’s name from K1~’s birth certificate, terminate the Social Security benefits
K1~ was receiving on the NH’s account, and award $5,160.00 in damages.
At the court’s direction, the Laboratory collected DNA samples from L~ and K1~ on
August 15, 2014. Although the DNA report provides that the samples were obtained from
L~ and K1~, the report does not show how the Laboratory identified L~ or K1~ when
they obtained these samples. There is also no evidence showing the chain of custody
of their DNA samples from the time of collection until the testing was completed.
The Jefferson Parish Coroner’s Morgue sent a DNA sample of the NH to the Laboratory.
The evidence shows the chain of custody of the NH’s DNA sample from the morgue in
Louisiana to the Laboratory in Ohio. The Laboratory’s resulting DNA Test Report dated
August 22, 2014, conclusively excluded the NH as K1~’s father, finding the probability
of paternity was 0%.[2] The director of the Laboratory signed an affidavit verifying the results as correct.
On October 7, 2014, the court issued a Judgment in the NH’s mother’s favor and against
L~ for $635.00. The one-page Judgment makes no determination regarding paternity,
K1~’s birth certificate, or Social Security benefits, but awarded damages in part
on the negative DNA test.
In September 2014, the NH’s mother, sister, and brother provided statements to the
agency claiming that the NH is not K1~’s father and that she should not be receiving
child’s benefits on the NH’s record. After the agency contacted L~, she provided a
statement dated October 10, 2014, in which she stated that she has never married,
did not live with the NH until after K1~ was born, did not have sexual relations with
anyone other than the NH around the time of conception, and believes the NH is K1~’s
father.
ANALYSIS
A. K1~’s Entitlement to Surviving Child’s Benefits Under the Act and Requirements for Reopening
Under the Act, a child may be eligible for surviving child’s benefits if she is the
child of an individual who has died fully or currently insured. 42 U.S.C. § 402(d)(1);
20 C.F.R. § 404.352(a). The Act provides several ways to determine whether someone
is the child of a deceased wage earner. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3)(C)(i), (ii); 20 C.F.R. § 404.355(a)(1)-(4).
Here, the agency determined that K1~ was entitled to benefits as the NH’s child based
on the NH’s written acknowledgment. See 42 U.S.C. § 416(h)(3)(C)(i)(I).
The subsequent DNA report and court Judgment indicate that the NH is not K1~’s father.
Therefore, the question is whether the agency can reopen its initial determination
in light of the subsequent evidence. The agency may reopen and revise a determination,
which is otherwise final and binding, within 12 months of the date of the notice of
the initial determination for any reason; within 4 years of the date of the notice
of the initial determination if the agency finds good cause to reopen the case; or
at any time if the determination was obtained by fraud or similar fault. 20 C.F.R.
§§ 404.987, 404.988.
Because it has been longer than 12 months but shorter than four years since the agency
issued its June 2013 determination, we will examine whether there is good cause for
the agency to reopen the claim. See 20 C.F.R. § 404.988(b). The regulatory definition of “good cause” includes when new
and material evidence is furnished to the agency. See 20 C.F.R. § 404.989(a)(1). The POMS further defines “new and material evidence” as
any evidence that:
(1) Was not a part of the claims, disability or earnings discrepancy file when the
final determination or decision was made; but
(2) Relates back to the date of the original determination or decision; and
(3) 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.
See POMS GN 04010.030(A).
We also examine whether the agency’s determination was obtained by fraud or similar
fault since it is a basis for reopening a determination at any time. See 20 C.F.R. § 404.988(c)(1). The POMS defines “fraud” as existing when a person, with
intent to defraud, either makes or causes to be made a false statement or misrepresentation
of a material fact for use in determining rights to Social Security benefits, or conceals
or fails to disclose a material fact for use in determining rights to Social Security
benefits. POMS GN 04020.010(A)(1). “Similar fault” exists when a person knowingly
makes an incorrect or incomplete statement that is material to the agency’s determination
to grant benefits, or knowingly, with no fraudulent intent, conceals information that
is material to the determination. POMS GN 04020.010(A)(2). The determination of whether
fraud or similar fault exists is a judgment decision and is based on the facts in
the case. POMS GN 04020.010(B)(2).
B. The Evidence Does Not Support Reopening
We first consider whether the court’s Judgment is binding on the agency. Generally,
a state court judgment does not bind the agency if it involves a proceeding to which
the agency was not a party. See Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)); see also POMS GN 00306.001(C)(3) (providing that when determining a child’s relationship under state law, where
the evidence includes a state court decision on the issue, the agency is not necessarily
bound by the court decision; referring the agency to SSR 83-37c for the applicable
criteria of Gray v. Richardson). However, the agency should defer to state court determinations when (1) a state
court of competent jurisdiction previously determined an issue in a claim for Social
Security benefits; (2) parties with opposing interests genuinely contested the issue
before the state court; (3) the issue falls within the general category of domestic
relations law; and (4) the resolution by the state trial court is consistent with
the law enunciated by the highest court in the state. See Gray, 474 F.2d at 1373; SSR 83-37c. The Fifth Circuit has similarly recognized that the
agency is not bound by ex parte orders of state courts, but emphasized that the agency should disregard such orders
only where the agency is convinced the decision is in conflict with what the state
supreme court would hold were the issue presented to it (the fourth Gray factor). See Garcia v. Sullivan, 883 F.2d 18, 20 (5th Cir. 1989); Warren v. Sec'y of Health & Human Servs., 868 F.2d 1444, 1446-47 (5th Cir. 1989). As explained below, the instant court’s
Judgment does not meet the fourth Gray factor, so we need not address the other factors.
Louisiana law provides for the use of testing of blood or tissue samples in any civil
action where paternity is a relevant fact. See La. Rev. Stat. Ann. 9:396(A)(1). The results of the testing must be certified by a
sworn affidavit by the expert who supervised the testing. Id. at § 9:397.3(A)(1). The affidavit must state:
(a) That the affiant is qualified as an examiner of blood or tissue samples for inherited
characteristics, including but not limited to blood and tissue types, to administer
the test and shall give the affiant's name, address, telephone number, qualifications,
education, and experience.
(b) How the tested individuals were identified when the samples were obtained.
(c) Who obtained the samples and how, when, and where the samples were obtained.
(d) The chain of custody of the samples from the time obtained until the tests were
completed.
(e) The results of the test and the probability of paternity as calculated by an expert
based on the test results.
(f) The procedures performed to obtain the test results.
See id. If the report and affidavit from the expert who supervised the testing do not satisfy
these requirements, the affidavit and report are not admissible. See Richardson v. Richardson, 974 So. 2d 761, 771 (La. Ct. App. 2007).
The DNA report does not meet several of the requirements for admissibility. It does
not list the affiant’s qualifications; it does not show how the Laboratory identified
L~ or K1~ when they obtained their DNA samples; and it does not explain how or where
L~’s and K1~’s DNA samples were obtained. The report also fails to establish the required
chain of custody for L~’s and K1~’s DNA samples. The DNA report shows that the testing
of the samples occurred in Ohio, but there is no evidence showing how the Laboratory
handled the samples after collection in Louisiana, how the samples were transported
to Ohio for testing, or how the Laboratory handled the samples in Ohio until the tests
were completed. Thus, in our opinion the Louisiana Supreme Court would find that the
Second Justice Court improperly admitted and relied upon the DNA report. Accordingly,
the Judgment’s implicit finding that the NH was not K1~’s biological father, which
was based on the unreliable and inadmissible DNA report, does not bind the agency.
As such, it is our opinion that this evidence would not have resulted in a different
conclusion as to K1~’s biological father, and thus does not provide good cause for
reopening the application for benefits. See POMS GN 00306.010(C)(1) (only admissible evidence showing no paternity could rebut presumed paternity).
For the same reasons, the agency should not reopen its determination due to fraud
or similar fault. Given that the DNA report is unreliable and the court’s Judgment
is not binding on the Commissioner, there is no persuasive evidence that L~ intended
to defraud or conceal evidence from the agency. The birth certificate and the NH’s
signed acknowledgement of paternity outweigh any unreliable evidence that the NH was
not K1~’s biological father.
Nonetheless, despite the presumption of paternity arising from the NH’s written acknowledgement,
the agency may find that evidence of non-paternity overrides the acknowledgment, but
“such evidence must be very persuasive.” POMS GN 00306.100(D)(1). Because the DNA report is inadmissible and unreliable for the reasons discussed
above, we believe the DNA report and the other evidence is less than “very persuasive”
and does not override the NH’s written acknowledgement.
CONCLUSION
The DNA report is unreliable and inadmissible under Louisiana law, so the court should
not have relied on it to make an implied finding of no paternity. The DNA report and
the court Judgment are not persuasive evidence to contradict the NH’s acknowledgment
of paternity. As such, it is our opinion that the DNA report and Judgment do not provide
a basis for reopening the agency’s determination that K1~ is entitled to benefits
on the NH’s account.[3]
Michael McGaughran
Regional Chief Counsel
By:
Michael J. Carey
Assistant Regional Counsel