A. Federal Law: Entitlement to Child’s Insurance Benefits under the
Social Security Act as a Natural Child
A claimant may be eligible for child’s insurance benefits if, among other things,
the claimant is the “child” of the insured individual, as defined in section 216(e)
of the Social Security Act (Act). See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. In addition, an insured individual’s
“child” may be eligible for the LSDP. See 42 U.S.C. § 402(i); 20 C.F.R. § 404.392;
Program Operations Manual Support System (POMS) RS 00210.001B, E. Section 216(e)(1) of the Act and the regulations define “child” as an insured
individual’s natural child, legally adopted child, stepchild, grandchild, step grandchild,
or equitably adopted child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354˗.359.
A claimant may show he is an insured individual’s natural child by meeting the requirements
of section 216(h)(2)(A) of the Act. To determine whether a child is the natural child
of the insured individual under section 216(h)(2)(A) of the Act, the agency applies
“such law as would be applied in determining the devolution of intestate personal
property . . . by the courts of the State in which [the insured] was domiciled at
the time of his death.” 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). If, upon
application of section 216(h)(2)(A) of the Act, a child cannot inherit from the insured
individual under the applicable State intestate succession laws, such child may be
eligible for child insurance benefits as the insured individual’s natural child in
other circumstances set forth in section 216(h)(2)(B) and 216(h)(3).
A claimant will be deemed a child under section 216(h)(2)(B) of the Act if the claimant
is the insured individual’s biological child, and the claimant’s parents went through
a marriage ceremony that would have been valid but for a legal impediment. See 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2). Under section 216(h)(3)(C)(i)
of the Act, the agency will deem a claimant to be a child if the claimant is the insured
individual’s biological child, and the insured individual had, before his death, acknowledged
parentage in writing, been decreed a parent by a court, or been ordered to pay child
support. See 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3). Further, under section 216(h)(3)(C)(ii)
of the Act, the agency will deem a claimant to be a child if there is satisfactory
evidence that the claimant is the deceased insured individual’s biological child and
the insured individual was, at the time of his death, either living with the claimant
or contributing to the claimant’s support. See 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4).
Following the NH’s death, on July xx 2011, the Applicant filed an application for
child’s insurance benefits and the LSDP on behalf of the Child, born September xx,
2008, on the NH’s record claiming that the Child was his child. Agency records indicate
that the Applicant provided the Child’s birth certificate as proof of the parent-child
relationship between the Child and the NH. The agency determined that the Child was
the NH’s deemed child under section 216(h)(3) and awarded child’s insurance benefits
and one-half of the LSDP to the Child effective July 2011. You advised that there
is no relationship determination in the file.
In light of this OIG fraud investigation and resulting Settlement Agreement, as well
as information from the Oklahoma Court Case revealing that the Child is not the NH’s
biological or legal child under Oklahoma law, you have asked whether the agency can
reopen the 2011 determination awarding surviving child’s insurance benefits and the
LSDP to the Child on the record of the NH based on evidence of fraud or similar fault
in the Applicant’s filing of that claim on behalf of her child for purposes of making
an overpayment determination on the Child’s record. We turn next to the law on reopening
of final agency determinations.
B. Federal Law and Policy: Reopening Final Agency Determinations
1. Law and Policy: Reopening At Any Time When a Preponderance of the Evidence
Establishes Fraud or Similar Fault
A final agency determination may be reopened and revised by the agency under certain
conditions. See 20 C.F.R. §§ 404.987, 404.988; see also POMS GN 04001.001D.4 (“It is SSA’s policy to revise a determination if reopening applies and the evidence
shows the prior determination was incorrect.”). As the agency’s determination awarding
child’s benefits to the Child on the NH’s record was issued back in July 2011 – more
than four years ago - we consider whether reopening would be appropriate under any
of the provisions that provide for a reopening at any time. See 20 C.F.R. § 404.988(c). Social Security regulations allow reopening of a determination
or decision at any time if it is obtained by fraud or similar fault. See 20 C.F.R. § 404.988(c)(1); see also 20 C.F.R. § 416.1488(c) (“In determining whether a determination or decision was
obtained by fraud or similar fault, we will take into account any physical, mental,
educational, or linguistic limitations (including any lack of facility with the English
language) which you have had at the time.”); POMS GN 04020.010 (instructions for unrestricted
reopenings for determinations or decisions obtained by fraud or similar fault in the
Title II program).
a. Fraud or Similar Fault
The Act instructs that if an individual makes or causes to be made any false statement
or representation of a material fact in any application for any payment or for use
in determining rights to payment under Title II, that individual is guilty of a felony.
See 42 U.S.C. 408(a)(2), (3). For reopening purposes, “[f]raud exists where a person,
with intent to defraud, either: [m]akes or causes to be made, a false statement or
misrepresentation of a material fact for use in determining rights under the Social
Security Act (Act); or [c]onceals or fails to disclose a material fact for use in
determining rights under the Act.” POMS GN 04105.005B.4; see also POMS GN 04020.010A (“Generally, we rely on the Office of the Inspector General (OIG)
to investigate allegations of fraud and make fraud findings.”). “Intent to defraud
is an intentional deception or misrepresentation which the individual knows to be
false or which he or she does not believe to be true, but makes knowing that the deception
or misrepresentation could result in some unauthorized benefit to himself or herself
or some other person (synonymous with ‘fraudulent intent’).” POMS GN 04105.005B.6.
For reopening purposes, “[s]imilar fault is involved with respect to a determination
if: [a]n incorrect or incomplete statement that is material to the determination is
knowingly made; or [i]nformation that is material to the determination is knowingly
concealed.” POMS GN 04105.001B.5; POMS GN 04020.010A. Fraud requires an intent to defraud, but similar fault does
not. POMS GN 04105.001B.5; POMS GN 04020.010A.
Relevant to both fraud and similar fault, “material” means “a statement or information,
or an omission from a statement or information that could influence [SSA] in determining
entitlement to benefits” under Title II. POMS GN 04105.005B.1. “A false statement,
false representation, or deceitful withholding of information is material when there
is an obligation to disclose the truth, and the deceit is significant and could: influence
payment of benefits that the Act did not authorize; influence [SSA] in determining
rights to payments; or lead to the improper issuance of [SSN] cards or other documents.”
Id. “Knowingly” means “a person’s awareness or understanding regarding the correctness
or completeness of the information he or she provides [SSA], or the materiality of
the information he or she conceals from [SSA].” POMS GN 04105.005B.2.
Courts have found that misrepresentations about domestic or financial status constitute
“fraud or similar fault” for purposes of reopening a Social Security claim. See,
e.g., Heins v. Shalala, 22 F.3d 157, 162 (7th Cir. 1994) (“holding reopening justified on ground of “similar
fault” when claimant failed to report remarriage and signed application which stated
“none other” to question regarding other marriages); Marshall v. Chater, 75 F.3d 1421, 1427 (10th Cir. 1996) (holding reopening justified when claimant fraudulently,
or at least knowingly, made incorrect statements regarding his income and hours and/or
withheld such material information); Fowler v. Bowen, 876 F.2d 1451, 1455 (10th Cir. 1989) (holding that substantial evidence supported
ALJ’s finding that claimant’s incorrect statement regarding employment status and
failure to reveal substantial earnings constituted “fraud or similar fault”).
b. Burden of Proof: Preponderance of the Evidence
The burden of proof to establish either fraud or similar fault for purposes of reopening
an SSA determination is a preponderance of the evidence. POMS GN 04020.010C. A preponderance
of the evidence “means such relevant evidence that as a whole shows that the existence
of a fact to be proven is more likely than not.” Id. “A preponderance of the evidence produces the stronger impression when weighed against
evidence to the contrary” and “does not require any certain number of pieces of evidence.”
Id. “It is possible that just one piece of evidence may be so convincing that it outweighs
more than one piece of evidence in opposition.” Id. Thus, SSA must weigh the evidence to determine if sufficient under the preponderance
of the evidence standard – more likely than not - to show that the determination was
obtained by fraud or similar fault.
With this understanding of the agency’s standard for fraud and similar fault for reopening
final administrative determinations, we turn next to the specific evidence in the
matter at hand.
2. Application of Law and Policy: A Preponderance of the Evidence Establishes that
the Applicant Committed Fraud or Similar Fault in Obtaining the Determination Awarding
Survivor’s Benefits to the Child Based on the NH’s Record Where the Applicant Knew
Prior
to the NH’s Death and Prior to the Application for Benefits that the NH Was Not the
Child’s Biological or Legal Father
In this case, we believe the agency could find that the Applicant committed fraud
or, at a minimum, similar fault in applying for survivor’s benefits for her son, the
Child, on the account of the NH because a preponderance of the evidence establishes
that she was fully aware of the fact that the NH was not the Child’s biological or
legal father under Oklahoma law prior to the NH’s death and prior to the filing of
the application for Title II benefits with the agency.
a. The Oklahoma Court Case, which included Genetic Testing and Orders
Vacating the Acknowledgment of Paternity and Vacating the Determination of Parentage,
Established that the NH was Not the Child’s Biological or Legal Father Prior to the
Applicant’s Filing of the Claim on behalf of the Child on the NH’s Record, and Supports
the Agency’s Reopening Based on Fraud or Similar Fault
As described above, based on the court filings, it appears that the NH had originally
signed an Acknowledgment of Paternity as to the Child on September xx 2008, the day
after the Child was born, but that the NH subsequently filed an action to challenge
his Acknowledgment of Paternity. See In re the Interest of the Child of D~ v.
D2~, Case No. XX-XXXX-XXXX, FGN No. XXXXXXXXX, District Court of Oklahoma County, Oklahoma
(Oklahoma Court Case). We consider Oklahoma law regarding challenges to acknowledgments
of paternity to determine whether the NH’s challenge was consistent with the law.
Under Oklahoma law, a valid acknowledgment of paternity signed by both parents is
equivalent to an adjudication of paternity of a child and confers upon the acknowledged
father all rights and duties of a parent. Okla. Stat. Ann. tit. 10, § 7700-305(A).
Further, Oklahoma law provides that after the 60-day period of rescission has expired,
if a child has an acknowledged father, a signatory to the acknowledgment of paternity
may commence a proceeding to challenge the acknowledgment: (1) on the basis of duress
or material mistake of fact within two years after the acknowledgment is executed;
or (2) on the basis of fraud at any time in accordance with section 7700-607(D). Okla.
Stat. Ann. tit. 10, § 7700-308(A); see also Okla. Stat. Ann. tit. 10, § 7700-609(A) (if a child has an acknowledged father, a
signatory to the acknowledgment of paternity may commence a proceeding to challenge
the paternity of the child only within the time allowed under sections 7700-307 or
7700-308); Sweet v. State ex rel. Dept. of Human Services Child
Support Enforcement, 239 P.3d 176, 178 (Okla. Civ. App. 2010) (section 7700-308 provides a means for
an acknowledged father to challenge his acknowledgment in an adversarial proceeding
with the underlying goal of providing notice to both the State and to the mother of
the putative father’s challenge to his previously signed acknowledgment of paternity).
A party challenging an acknowledgment of paternity has the burden of proof by clear
and convincing evidence, and the paternity of a child having an acknowledged father
may be disproved only by admissible results of genetic testing excluding that man
as the child’s father. Okla. Stat. Ann. tit. 10, §§ 7700-308(C), 7700-631(1). Every
signatory to the acknowledgment of paternity must be made a party to a proceeding
to challenge the acknowledgment. Okla. Stat. Ann. tit. 10, § 7700-309(A). A proceeding
to challenge an acknowledgment of paternity must be conducted in the same manner as
a proceeding to adjudicate paternity under Okla. Stat. Ann. tit. 10, §§ 7700-601 –
7700-637. Id. If a child has can acknowledged father, the results of genetic testing are inadmissible
to adjudicate parentage unless performed pursuant to a court order. Okla. Stat. Ann.
tit. 10, § 7700-621(C); see also Okla. Stat. Ann. tit. 10, § 7700-502(A) (“In a civil action in which paternity is
a relevant fact and at issue . . . the court shall order the child and other designated
individuals to submit to genetic testing if the request is made by a party to the
proceeding to determine parentage”). A record of a genetic-testing expert is admissible
as evidence of the truth of the facts asserted in the report. Okla. Stat. Ann. tit.
10, § 7700-621(A); see also Okla. Stat. Ann. tit. 10, § 7700-503 (requirements of genetic testing), § 7700-504
(requirements of a report of genetic testing, including chain of custody requirements).
A man excluded as the father of a child by genetic testing shall be adjudicated not
to be the child’s father. Okla. Stat. Ann. tit. 10, § 7700-631(4); see also Okla. Stat. Ann. tit. 10, § 7700-309(E) (at the conclusion of a proceeding to challenge
an acknowledgment of paternity, the court shall order the State Department of Health
to amend the child’s birth record). A determination of parentage is binding on all
parties to a court adjudication. Okla. Stat. Ann. tit. 10, § 7700-637(A), (E).
We believe the NH’s challenge to his acknowledgement of paternity and the resulting
court orders comply with Oklahoma law. Here, the court filings in the Oklahoma Court
Case explain that in May 2010, the NH filed a motion challenging his September 2008
acknowledgment of paternity. A copy of the State’s response to the NH’s motion challenging
his acknowledgment of paternity admits that the NH was within the two years of execution
of the acknowledgment, but states that the genetic test results he had provided with
his motion were inadmissible as not ordered in a civil action in which paternity was
at issue. A copy of an “Order” filed on October 6, 2010, confirms that the NH filed
a Motion Challenging an Acknowledgment of Paternity that he had signed acknowledging
his paternity as to the Child on September xx, 2008. The Order reflects that the Applicant
had “knowingly concealed a material fact which induced [the NH] to sign the Acknowledgment
of Paternity.” Further, the Order states that “because of the fraud committed by [the
Applicant], the Acknowledgment of Paternity signed by [the NH] on September xx, 2008,
is vacated.” Finally, the court orders the NH to undergo genetic testing. Thus, this
evidence establishes that, in accordance with Oklahoma law, the NH’s challenge to
his acknowledgement of paternity was timely, all parties to the acknowledgment were
part of the proceedings, and genetic testing was ordered by the court to challenge
his status as an acknowledged father. See Okla. Stat. Ann. tit. 10, § 7700-308(A), (C) (setting forth the time and burden of
proof for commencing a proceeding to challenge an acknowledgment of paternity), §
7700-309 (setting forth the procedure for a proceeding to challenge an acknowledgment
of paternity), § 7700-621(C) (setting forth the requirement that if a child has an
acknowledged father, the results of genetic testing are inadmissible to adjudicate
paternity unless performed by a court order), § 7700-631 (setting forth the rules
for adjudication of paternity).
We do not have the full chain of custody documents provided to the court, but we do
have a copy of the single-page Relationship Report showing the results of the court-ordered
genetic testing and the court’s order vacating the prior order determining parentage
after receipt of such testing. A copy of a “Notice of Genetic Test Results” report
filed in this Oklahoma Court Case on March 12, 2011, shows that results of genetic
testing performed in this case were mailed to both the Applicant and to the NH on
March 2, 2011. A Laboratory Corporation of America “Relationship Report” for LabCorp
Case # XXX-XXXXXX dated January 6, 2011, shows that specimens from the NH, the Child,
and the Applicant were drawn in October and December 2010. The Relationship Report
states that Laboratory Corporation of America is accredited by the AABB. The Relationship
Report results show a combined paternity index of 0 to 1 and a probability of paternity
of 0.00%. The Relationship Report further concludes: “The alleged father [the NH]
is excluded from paternity” and the test results indicate that the NH “is not the
biological father of the [Child].” The laboratory director signed and notarized the
Relationship Report attesting to the truth and under penalty of perjury. Thus, the
Relationship Report establishes that the genetic testing ordered by the court was
consistent with Oklahoma law as to the requirements of genetic testing, the requirements
for the report of testing (except we do not have the chain of custody documentation),
and the requirements as to the results of genetic testing. See Okla. Stat. Ann. tit. 10, §§ 7700-503, 7700-504, 7700-505.
Finally, a copy of a “Journal Entry” made following receipt of the genetic testing
results and a hearing on June 29, 2011 and filed on July 27, 2011, in the Oklahoma
Court Case shows that on June 29, 2011, the State and the NH appeared in court for
the hearing, and that the Applicant was noticed of the hearing, but did not appear.
In the Journal Entry, the court ordered: “The Default Order Determining Parentage
and Child Support filed on October 5, 2009, [against the NH], is hereby vacated.”
Further, the court ordered: “The Department of Health shall amend the birth record
of [the Child] to confirm with the Court’s orders in this matter.” The orders in this
Journal Entry vacating the prior order determining the NH to be the Child’s father
are consistent with Oklahoma law where genetic testing excludes an acknowledged father
from being a child’s biological father. See Okla. Stat. Ann. tit. 10, § 7700-621(A) (a record of a genetic-testing expert is
admissible as evidence of the truth of the facts asserted in the report), § 7700-631(4)
(a man excluded as the father of a child by genetic testing shall be adjudicated not
to be the child’s father), § 7700-309(E) (at the conclusion of a proceeding to challenge
an acknowledgment of paternity, the court shall order the State Department of Health
to amend the child’s birth record), § 7700-637(A), (E) (a determination of parentage
is binding on all parties to a court adjudication); See Young v. State ex rel. Dept.
of Human Services, 119 P.3d 1279, 1281 (Okla. Civ. App. 2005) (following genetic testing that excluded
one man from being the children’s father, the Department of Human Services administrative
law judge vacated the administrative order establishing paternity and ordering child
support naming that man as the father, and initiated an administrative paternity proceeding
against a different man as the children’s father).
In summary, although we do not have copies of chain of custody documents for the genetic
testing or of all of the filings in the Oklahoma Court case, the above documents and
online docket establish that court-ordered genetic testing excluded the NH as the
Child’s biological father. Further, through orders vacating the NH’s acknowledgment
of paternity and vacating the default order determining parentage and child support,
the Oklahoma Court case establishes that the NH is also not the Child’s legal father
under Oklahoma law. See
Young v. State ex rel. Dept. of Human Services, 119 P.3d at 1284-1285 (explaining that the word vacate means to rescind, eliminate,
set aside, or render the order void or a nullity and that matters vacated are no longer
in existence). In particular, as outlined above, the documents and docket establish
that the NH filed a timely challenge to his acknowledgment of paternity in May 2010;
that the Applicant was served with filings in the proceedings such that all required
parties were part of the proceedings; that the court vacated the acknowledgment of
paternity; that the court ordered genetic testing to challenge the status of the NH
as an acknowledged father; that a January 2011 Relationship Report revealed that genetic
testing excluded the NH as the Child’s biological father; that the results of the
genetic testing was served on the Applicant in March 2011; and that following a hearing
on June 29, 2011, the court vacated the prior default judgment against the NH and
ordered the State to amend the Child’s birth certificate to remove the NH as the father.
All of this took place prior to the NH’s death on July xx, 2011 and prior to the Applicant’s
filing of the application on behalf of the Child on July 20, 2011.[2] This evidence supports a reopening based on fraud or similar fault on the part of
the Applicant in filing for benefits on behalf of the Child on the NH’s record because
she knew at that time that the NH was not the Child’s biological or legal father.
b. The 2018 OGC Fraud Investigation and Resulting Settlement Agreement
Supports the Agency’s Reopening Based on Fraud or Similar Fault
Furthermore, the 2018 OIG fraud investigation resulting in the Settlement Agreement
constitutes additional evidence in support of the agency’s reopening based on fraud
or similar fault. See POMS GN 04020.010A.1 (“Generally, we rely on the Office of the Inspector General
(OIG) to investigate allegations of fraud and make fraud findings.”). The United States
Attorney’s Office for the United States (on behalf of SSA and the United States Treasury)
entered into a Settlement Agreement in April 2020 in lieu of filing federal civil
actions against the Applicant in federal district court. The Settlement Agreement
states that on August 10, 2011, the Applicant applied for survivor’s benefits for
the Child using a birth certificate as proof of the relationship. The Settlement Agreement
states that at the time she filed this application for benefits, she had previously
been notified of a court order and paternity testing that confirmed that the NH was
not the Child’s father. The Settlement Agreement states: “[Applicant] made materially
false representations to SSA that enabled her to receive benefits for her minor child
as his representative payee.” Further, “[d]uring completion of yearly representative
payee reporting forms and subsequent interviews with SSA, she failed to disclose her
knowledge that [the Child] was not [the NH’s] son and therefore not eligible for SSA
survivor’s benefits.” A related Tolling of Statute of Limitations agreement signed
by the United States Attorney’s Office for the United States and the Applicant in
April 2020 specifies that the Applicant “provided false information regarding the
paternity of her dependent child which materially affected SSA’s ability to accurately
determine the dependent child’s eligibility for survivor’s benefits and enabled [the
Applicant] to receive survivor’s benefits for the dependent child for which he was
not entitled for the period of August 2011 through August 2018.” In the Settlement
Agreement, the Applicant agreed that she “unlawfully, knowingly, and willfully embezzled,
stole, and/or converted $49,606.00 in Survivor’s benefits” received by her child (Child)
on the record of the NH. To avoid the delay, expense, and uncertainty of litigation,
the parties agreed to settle and compromise the claims. The Applicant agreed to pay
$20,000.00 of the $49,606.00 in survivor’s benefits that she received on behalf of
her son, the Child.
In summary, under the express terms of the Settlement Agreement, the Applicant has
agreed that she made materially false representations to SSA that enabled her to receive
benefits for her minor child as his representative payee and that during the completion
of yearly representative payee reporting forms and subsequent interviews with SSA,
she failed to disclose her knowledge that the Child was not the NH’s child and therefore
not eligible for SSA survivor’s benefits. Thus, the 2018 OIG fraud investigation and
resulting Settlement Agreement provides further evidence of fraud or similar fault
to support the agency’s reopening of the 2011 determination.
c. A Preponderance of the Evidence Establishes Fraud or Similar Fault to
Support the Agency’s Reopening of the 2011 Determination
In summary, based on the information in the Oklahoma Court Case and Settlement Agreement
and applying the preponderance of the evidence standard of proof, we believe there
is legal support for the agency to find that it was more likely than not that the
Applicant committed fraud in applying for survivor’s benefits for her son, the Child,
based on the NH’s record when she knew at the time she applied for benefits that the
NH was not the Child’s biological or legal father. See Heins v. Shalala, 22 F.3d at 162 (“An individual who signs an application for Social Security benefits
is responsible for the contents of that document.”). OIG’s fraud investigation and
the resulting Settlement Agreement with the Applicant supports this fraud finding.
With the intent to defraud the agency in order to obtain benefits for her son, she
made a false statement or misrepresentation of material fact (that the NH was the
Child’s father) used in the determination finding that the Child was entitled to benefits
on the NH’s record as his child. See POMS GN 04020.010, GN 04105.005B.4. Alternatively, and at a minimum, we believe the
agency could find that a preponderance of the evidence establishes that the Applicant
committed similar fault in applying for benefits for her son because she knowingly
made an incorrect or incomplete statement that is material to the determination or
knowingly concealed information material to the determination (that the NH was in
fact not the Child’s biological or legal father). See POMS GN 04020.010, GN 04105.001B.5.
Therefore, we believe it would be reasonable for the agency to conclude that based
on the specific evidence and facts of this particular case, including those presented
in the Settlement Agreement and documents associated with the Oklahoma Court Case,
it is more likely than not that the Applicant obtained the Child’s benefits through
fraud or similar fault. As such, for purposes of making an overpayment determination
on the Child’s record, we believe there is legal support for the agency to reopen
the July 2011 determination awarding surviving child’s benefits to the Child on the
NH’s record.[3]