You asked whether the Social Security Administration (agency) should terminate the
beneficiary’s current entitlement to child’s insurance benefits (CIB) on the number
holder’s earning record based on subsequent DNA evidence that excludes the number
holder as the beneficiary’s biological father and a Florida court judgment declaring
the number holder is not the beneficiary’s biological father. You also asked whether
the agency’s initial determination awarding beneficiary CIB on number holder’s earnings
record could be reopened based on new and material evidence.
For the reasons stated below, the agency, based on new and material evidence, should
reopen the determination finding the beneficiary entitled to CIB on the number holder’s
earning record. Although the number holder executed a written acknowledgment of paternity,
the information provided shows he has disestablished paternity based on genetic testing
demonstrating that he could not be the beneficiary’s biological father.
On March XX, 2013, C~, the number holder (NH), applied for old-age insurance benefits.
At the time NH applied, he had no children that met the definition of a child who
would be potentially eligible for CIB on his earnings record.
V~ (Beneficiary) was born on July XX, 2013, to N~ (Beneficiary’s mother). A copy of
Beneficiary’s Florida Certification of Birth, issued March XX, 2014, identifies NH
as Beneficiary’s father. The evidence provided does not include an acknowledgment
of paternity signed by NH for purposes of listing him as Beneficiary’s father on the
birth certificate. Additionally, there is no information that Beneficiary’s mother
was ever married to NH.
On March XX, 2014, NH applied on Beneficiary’s behalf for CIB on his earnings record.
The information provided indicates that NH also applied to be Beneficiary’s representative
payee. In a Notice of Award dated March XX, 2014, the agency approved Beneficiary’s
application for CIB, selected NH as Beneficiary’s representative payee, and established
August 2013 as the first month that Beneficiary was entitled to CIB on NH’s earnings
On October XX, 2014, the agency selected Beneficiary’s mother to replace NH as Beneficiary’s
On December XX, 2015, NH visited the Ocala, Florida field office and requested that
the agency terminate benefits paid to Beneficiary’s mother as her representative payee.
That day, NH signed a Statement of Claimant or Other Person alleging he was in an
intimate relationship with Beneficiary’s mother when she became pregnant and gave
birth to Beneficiary. NH alleged he signed Beneficiary’s birth certificate because
he believed he was Beneficiary’s biological father. NH also alleged that around November
2013, Beneficiary experienced medical issues and her doctor advised obtaining DNA
tests. NH presented DNA testing dated December XX, 2014, which excluded NH as Beneficiary’s
biological father based on a zero percent probability of paternity. NH claimed that
until he received the DNA test results, he was unaware that he was not Beneficiary’s
NH also presented evidence that on April XX, 2015, the Circuit Court for the Ninth
Judicial Circuit, Orange County, Florida, issued a Final Judgment Disestablishing
Paternity. The court, based on the December 2014 DNA test results, disestablished
paternity pursuant to section 742.18 of the Florida Statutes and declared NH is not
Beneficiary’s biological father. The court also ordered that it was in Beneficiary’s
best interests for the appropriate State agency prepare an amended birth certificate
to change Beneficiary’s name on the certificate to V2~. The court also noted that
NH never had a court-ordered child support obligation for Beneficiary and terminated
any such obligation. Finally, the court noted that Beneficiary’s mother had consented
to the relief requested.
A claimant may be eligible for CIB on the earnings record of an individual entitled
to old-age insurance benefits if the claimant is the insured individual’s “child.”
See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2016). “Child” includes “the child” of an insured individual. Act § 216(e); see 20 C.F.R. § 404.354; Astrue v. Capato, --- U.S. ---, 132 S. Ct. 2021, 2027-28 (2012). A claimant may show she is “the child”
of an insured individual, within the meaning of section 216(e)(1), by meeting the
requirements of section 216(h)(2)(A) of the Act. See Capato, 132 S. Ct. at 2028. Under section 216(h)(2)(A), a claimant is considered “the child”
of an insured individual if she could inherit the insured individual’s intestate personal
property under the law of the State in which the insured individual was domiciled
when the claimant applied for CIB. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Capato, 132 S. Ct.
at 2028-34; Program Operations Manual System (POMS) GN 00306.001(C)(1)(a), (C)(2)(a). The information provided indicates that NH was domiciled in
Florida when he filed for CIB on Beneficiary’s behalf. Therefore, we look to Florida
intestacy law to determine whether Claimant is NH’s child.
Under Florida intestacy law, a lineal descendent of a decedent is entitled to a share
of the decedent’s estate not effectively disposed of by will. See Fla. Stat. Ann. §§ 732.101(1), 732.103(1) (2016; see also Fla. Stat. Ann. § 731.201(9) (2016) (defining “descendant” in the Florida Probate
Code to include children and noting “descendant” is synonymous with “lineal descendant”).
A person born out of wedlock is the lineal descendant of the putative father for the
purposes of intestate succession if, among other things, the father acknowledges paternity
in writing. See Fla. Stat. Ann. § 732.108(2)(c) (West 2016). The acknowledgment of paternity under
Fla. Stat. Ann. § 732.108(2)(c) “requires no particular form of written acknowledgment.”
Sanders ex rel. Wakefield v. Apfel, 85 F. Supp. 2d 1275, 1280-81 (M.D. Fla. 1999)
(finding claimant was number holder’s child where he acknowledged paternity on birth
certificate and insurance application).
Although Beneficiary’s birth certificate identifies NH as Beneficiary’s father, the
birth certificate does not include NH’s signature as the informant, and the evidence
provided does not otherwise include a written acknowledgment by NH that Beneficiary
is his child. In Florida, however, there is a presumption that the father provided
written acknowledgment/consent if his name appears on the birth certificate. See Fla. Stat. Ann. § 382.013(2)(c) (West 2016) (“If the mother is not married at the
time of the birth, the name of the father may not be entered on the birth certificate
without the execution of an affidavit signed by both the mother and the person to
be named as the father.”); Flores v. Sanchez, 137 So.3d 1104, 1108-09 (Fla. Dist. Ct. App. 2014) (citing Fla. Stat. Ann. § 382.013(2)(c));
POMS GN 00306.120B; POMS GN ATL00306.120B (showing that in Florida, the father’s name on the birth certificate creates the
presumption he provided written consent). Thus, NH’s name on Beneficiary’s birth certificate
is sufficient to show NH provided a written acknowledgment of paternity. See Sanders, 85 F. Supp. 2d at 1280-81.
An individual who provided a written acknowledgment of paternity may disestablish
paternity under Florida Statutes § 742.10(4) or § 742.18. See State of Florida, Dep’t of Revenue v. Travis, 971 So.3d 157, 160-61 (Fla. Dist. Ct. App. 2007). The April 2015 court order shows
NH brought his claim under § 742.18; and the court, pursuant to that statute, found
that the December 2014 DNA tests constituted newly discovered evidence sufficient
to disestablish paternity.
The agency, however, is not bound by the decision of a State court in a proceeding
to which SSA was not a party. See Baker o/b/o Baker v. Sullivan, 880 F.2d 319, 322 (11th Cir. 1989) (“As a legal matter, the Appeals Council could
determine that the state court judgment is not binding on the [Commissioner] on the
issue of paternity of the children . . . , particularly when the [Commissioner] was
not a party to the state court action, and no opposing interests were presented in
the case”). Florida law also indicates a person is not bound by a prior judicial paternity
decision when that person was “not a party to the litigation in which the issue was
determined.” In re Estate of Robertson, 520 So. 2d 99, 102 (Fla. Dist. Ct. App. 1988); see also Voss v. Shalala, 32 F.3d 1269, 1271 (8th Cir. 1994) (holding ALJ not bound by State probate court
judgments of paternity because agency was not party to probate proceedings and judgments
were only part of broader inquiry into facts and applicable law). Nevertheless, the
agency is not free to ignore an adjudication of a State court where the following
prerequisites exist: (1) an issue in a claim for Social Security benefits previously
has been determined by a State court of competent jurisdiction; (2) this issue was
genuinely contested before the State court by parties with opposing interests; (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 Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), as national policy). In this case, the order does
not meet all of the prerequisites in SSR 83-37c. Specifically, parties with opposing
interests did not genuinely contest the issue of NH’s paternity. Nevertheless, the
court’s determination provides further evidence to rebut the presumption that NH is
A Florida court may also disestablish NH’s paternity under § 742.10(4). See Fla. Stat. Ann.
§ 742.18(11) (West 2016) (nothing in § 742.18 precludes an individual from challenging
a paternity determination pursuant to § 742.10(4)). Although NH brought his claim
to disestablish paternity under § 742.18, we have also addressed § 742.10(4) because
we believe a Florida court may find NH rebutted the presumption of paternity created
under that statute when he acknowledgment paternity in writing. Under § 742.10(4),
NH’s written acknowledgment of paternity created a rebuttable presumption of paternity.
See Flores v. Sanchez, 137 So.3d 1104, 1108-09 (Fla. Dist. Ct. App. 2014). Section 742.10(4) provides that
the individuals named on a birth certificate may rebut the presumption of paternity
by rescinding the voluntary acknowledgment of paternity within sixty days of signing
the acknowledgement. See Flores, 137 So.3d at 1109. The information provided does not show that NH or Beneficiary’s
mother rescinded the voluntary acknowledgment within sixty days of signing it. After
the expiration of the sixty-day period, an individual can only rebut the presumption
by showing fraud, duress, or material mistake of fact. See id. at 1109. Although NH alleged in his Statement of Claimant or Other Person that he
was unaware he was not Beneficiary’s biological father until he received the DNA test
results, he did not indicate that fraud or duress caused him to sign the written acknowledgement
of paternity. NH’s statement, however, appears to show that when he signed the acknowledgement,
he was operating under a material mistake of fact as to whether he was Beneficiary’s
biological father. Accordingly, a Florida court may find NH rebutted the presumption
of paternity based on the DNA test results, the court order disestablishing paternity,
and NH’s statement denying paternity.
However, neither the DNA tests nor the state court order disestablishing paternity
would justify termination of a claimant’s benefits as the NH’s child. If a claimant
has been entitled to benefits as the child of an insured individual, a later determination
that another man is the child’s biological father is not a terminating event under
the Act. See 42 U.S.C. § 402(d)(1)(D)-(H); 20 C.F.R. § 404.352(b). As a result, SSA may only stop
a claimant’s benefits based on an insured individual’s earnings record if SSA can
reopen the original child-status determination. See 20 C.F.R. § 404.988.
The agency may reopen a determination within four years of the date of the initial
determination if the agency finds good cause. See 20 C.F.R. § 404.988(b). The Notice of Award approving Beneficiary’s application for
CIB is dated March XX, 2014. Thus, the agency may reopen the determination based on
good cause. Good cause for reopening includes receipt of “new and material evidence.”
20 C.F.R. § 404.989(a)(1). New and material evidence constitutes good cause to reopen.
See 20 C.F.R. § 404.989(a)(1). Material evidence is “relevant and probative so that there
is a reasonable possibility that it would change the administrative result.” Milano v. Bowen, 809 F.2d 763, 766 (11th Cir. 1987). The December 2014 DNA test results, the April
2015 court order, and NH’s December 2015 statements denying paternity are all new
evidence because they did not exist when he applied on Beneficiary’s behalf for CIB
in March 2014 or when the agency approved the application in March 2014. Further,
that evidence is material because there is a reasonable possibility that the evidence
would change the agency’s determination to approve the application. Thus, the initial
determination can be reopened.
A Florida court may find NH rebutted the presumption of paternity based on the DNA
test results, the court order disestablishing paternity, and NH’s statement denying
paternity. Thus, Beneficiary is not NH’s child under Florida intestacy law. Accordingly,
Beneficiary is not NH’s child under section 216(h)(2)(A) of the Act for determining
Beneficiary’s continuing entitlement to CIB on NH’s earnings record. Further, the
agency has received new and material evidence sufficient to reopen the determination
finding Beneficiary entitled to CIB on NH’s earning record.
Mary Ann Sloan
Regional Chief Counsel
By: Jennifer L. Patel
Assistant Regional Counsel