In South Carolina, statements of friends and relatives, including the mother of the claimant, clearly acknowledging that the Number Holder is not the claimant's father combined with a court order indicating no children were born of the marriage of the Number Holder and the claimant's mother are sufficient to rebut the presumption of legitimacy and allow the child's claim to be reopened.

Additionally, evidence in file showing that the Number holder claimed the child as a dependent on his State and Federal tax returns is not sufficient to establish a rebuttable presumption of paternity.

QUESTION

You asked whether Federal and State tax forms stating that the number holder claimed the child claimant as a dependent are evidence of paternity between the number holder and the child. In February 2008, we spoke with your staff to clarify the question asked, and agreed that the question should reflect whether the evidence presented rebuts the presumption that the number holder is the legitimate father of the claimant, and whether the claimant is entitled to benefits on the record of the number holder.

The record provides clear evidence to rebut the presumption of legitimacy and to allow the Social Security Administration to reopen the determination granting the claimant benefits on the number holder's record. In addition, Federal and State tax forms indicating the number holder claimed the claimant as a dependent are not sufficient to establish paternity in South Carolina, and do not constitute clear and convincing evidence.

BACKGROUND

On May 21, 2007, George T~, the number holder (NH), died while domiciled in South Carolina. On August 15, 2007, Erica T~ (Claimant's mother) filed an application on behalf of Savannah Y~ (Claimant) for child's insurance benefits on the record of NH. The Social Security Administration (SSA) approved the application in October 2007. Claimant's mother was married to NH from May 2, 2001, through October 21, 2004. Claimant was born on December 6, 2003. However, Claimant's mother informed the Agency that NH was not Claimant's father, and that NH had a vasectomy eight to ten years before he had met her. In addition, NH's daughter from a previous marriage provided a statement that NH had a vasectomy in 1984. Both the sister of Claimant's mother and Tonia S~, a friend of Claimant's mother for twenty-one years, indicated NH was not the father of Claimant. The mother of Claimant's mother did not expressly state NH was not the father, but indicated NH "accepted" Claimant. Likewise, Stacey W~, a friend of Claimant's mother for seventeen years, also indicated that NH "accepted" Claimant, and that Claimant's mother and Claimant moved out of NH's house when Claimant was six months old.

The record also includes a copy of an October 21, 2004 court order granting NH a divorce from Claimant's mother upon the statutory ground of adultery. In its order, the court stated NH and Claimant's mother did not have any children together and no children were born to the marriage. Furthermore, the record includes unsigned copies of NH's Federal and State tax forms, which indicate NH claimed Claimant as a dependent child.

DISCUSSION

ITo be eligible for child's benefits on the earnings record of an insured individual, a claimant must be that individual's "child." See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1) (2007). "Child" is defined as the child, adopted child or stepchild of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354. In determining a claimant's status as the child for benefits purposes, the Commissioner applies the inheritance laws of the state in which the insured had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4).

For purposes of intestate succession in South Carolina, a person is a child of the natural father if "the paternity is established by an adjudication . . . if commenced after his death, by clear and convincing proof." S.C. CODE ANN. § 62-2-109(2)(ii) (2008). In Program Operations Manual System (POMS) PR 01115.045A and 01115.045D, "clear and convincing evidence" was defined for South Carolina as "an intermediate standard of proof, more stringent than 'preponderance of the evidence' but less than 'beyond a reasonable doubt.'"

In this case, Claimant was born while NH was married to Claimant's mother. South Carolina established a rebuttable presumption that the husband of the child's mother is the child's father. See Mid-South Ins. Co. v. Doe, 274 F. Supp 2d 757, 763 (D.S.C. 2003); Chandler v. Merrell, 353 S.E.2d 133, 134-35 (S.C. 1987). This presumption can be rebutted by clear evidence that it was impossible for the husband to have been the father of the child. Brown v. Ryder Tuck Rental, 389 S.E.2d 161, 163 (S.C. Ct. App. 1990). POMS provides some guidance on what constitutes "clear evidence" under South Carolina law. In another case, a mother's acknowledgment that the number holder was not the father, along with a court order indicating the number holder was not the father and DNA test results revealing a 0.00% probability that the number holder was the father, provided clear evidence that was conclusive to rebut the presumption of legitimacy. See POMS PR 01010.045A.

In this case, Claimant's mother acknowledged to the Agency that NH is not Claimant's father. The evidence also indicates Claimant's mother admitted to the Agency that NH had a vasectomy eight to ten years before they were married, making it impossible for NH to be the father of Claimant. See Duckett v. Goforth, 649 S.E.2d 72, 81 (S.C. Ct. App. 2007) (the presumption of a husband's access to his wife must be overcome by the clearest evidence that it was impossible for him, by reason of impotency, to have fathered the child). Likewise, NH's daughter from a previous marriage provided a statement that NH had a vasectomy in 1984. In addition, the evidence includes a court decree of divorce stating NH and Claimant's mother had no children together and no children born to the marriage. The court order also indicates NH was granted a divorce upon the statutory ground of adultery.

Furthermore, the evidence before the Agency is replete with statements from people who knew NH and Claimant's mother and indicated Claimant was not the child of NH. Claimant's mother's sister specified in a statement that Claimant was not NH's biological daughter. Ms. S~, a friend of Claimant's mother for twenty-one years, also indicated Claimant was not NH's natural daughter. Ms. W~, a friend of Claimant's mother for seventeen years, also stated NH was supportive of Claimant's mother's pregnancy and that NH "accepted" Claimant, but that Claimant's mother left NH when Claimant was only six months old, and that she and Claimant moved to another residence. Claimant's mother's mother also suggested NH was not the biological father of Claimant, noting he had "accepted" Claimant. We believe these statements, combined with Claimant's mother acknowledgment that NH was not the father, and the court order indicating no children were born into the marriage, is clear evidence that is conclusive to rebut the presumption that Claimant was the child of NH. As such, a reopening of the determination allowing Claimant to receive benefits on the record of NH appears appropriate.

We also note that Claimant's mother provided unsigned Federal and State tax forms indicating NH claimed Claimant as a dependent child. However, in South Carolina, such evidence does not create a rebuttable presumption of paternity. See S.C. CODE ANN. § 20-7-956. The tax forms alone are not very probative that NH is Claimant's father given the overwhelming evidence before SSA that NH is not the biological father of Claimant.

CONCLUSION

The evidence of record is likely sufficient to rebut the presumption that NH is the father of Claimant based on NH's marriage to Claimant's mother at the time Claimant was born. Because the regulations provide that SSA may reopen a determination, revised determination, decision, or revised decision within twelve months of the date of the initial determination for any reason, 20 C.F.R. § 404.988(a), the Agency may reopen the October 2007 initial decision to address the evidence that NH is not the father of Claimant and to redetermine whether Claimant is entitled to benefits as NH's child.

Mary A. S~

Regional Chief Counsel

By: _____________________

Brian S~

Assistant Regional Counsel

DNA test results and a subsequent court order precluding the number holder's paternity of the entitled child constitute new and material evidence to support a reopening of the initial determination. They also represent clear evidence which is conclusive to rebut the presumption of the child's legitimacy under South Carolina law.

QUESTION

You asked whether evidence of DNA testing showing a probability of 0.00% of paternity is sufficient evidence to rebut the presumption of paternity and to allow for the reopening of the claim, which had allowed Jonathan B~ to receive benefits on the record of the Number Holder (NH), James E. B~, Jonathan's putative father.

ANSWER

There is sufficient evidence to allow for the reopening of this claim, and the evidence in this case, including (but not limited to) the DNA testing showing a probability of 0.00% of paternity, is likely sufficient to rebut the presumption that NH is the father of the Jonathan B~.

BACKGROUND

On November 3, 2004, Michelle C~, on behalf of Jonathan B~ (Jonathan), filed an application for child's insurance benefits on the record of NH, which was granted on November 23, 2004. Jonathan's natural mother, Michele G~, was married to NH from June 1985 through 1992, and Jonathan was born during that time -- on March 29, 1990. However, Michele B~ informed the Agency that NH was not Jonathan's father, and that a DNA paternity test confirmed this. Michele B~ also reported to the Agency that Michelle C~ was aware of these test results. When questioned by the Agency, Michelle C~ indicated that she was aware of the DNA testing, but did not know of the results; however, she submitted the DNA test results a couple of days later. The DNA test was performed in October 2003, and the report, verified by Tricia D. F~, Ph.D., reports that there was 0.00% probability that NH was the father of Jonathan. The report further indicated that NH “cannot be the biological father of Jonathan B~, since he and the child do not share necessary paternal markers in multiple genetic systems.” The record also includes a copy of the December 4, 2003 court order acknowledging that NH is not the father of Jonathan, and lists Michelle C~ as the defendant in that civil action. Furthermore, the record includes a copy of Jonathan's birth certificate; however, this certificate is devoid of both NH and Jonathan's mother's signatures.

DISCUSSION

The Agency has the regulatory authority to reopen the November 23, 2004 determination that Jonathan is entitled to monthly child's benefits.

The Agency's regulations provide several options for reopening the November 23, 2004 determination that entitled Jonathan to monthly child's benefits. First, the regulations provide that a determination, revised determination, decision, or revised decision may be reopened within 12 months of the date of the initial determination for any reason. See 20 C.F.R. § 404.988(a) (2005). Thus, the Agency may reopen the November 23, 2004 decision at any time prior to November 22, 2005 to address the results of the DNA testing between NH and Jonathan and to allow a Social Security Administration (SSA) adjudicator to conclude that Jonathan is not entitled to benefits as NH's child.

Should the Agency be unable to reopen the November 23, 2004 decision prior to November 22, 2005, the regulations permit the Agency to reopen the determination within four years of the November 22, 2005 determination, provided there is good cause. See 20 C.F.R. § 404.988(b). The regulations provide that there is good cause to reopen a determination or decision if “new and material evidence is furnished.” 20 C.F.R. § 404.989(a)(1). In this case, the Agency has received both the results of the DNA testing establishing that NH cannot be the biological father of Jonathan and a court order reflecting the same. Such evidence would most certainly qualify as “new and material evidence,” and thus, the Agency could find “good cause” to reopen the November 23, 2004 determination that Jonathan is entitled to monthly child's benefits in accordance with 20 C.F.R. § 404.988(b).

Finally, the regulations provide that a determination, revised determination, decision, or revised decision may be reopened at any time if it was obtained by fraud or similar fault. See 20 C.F.R. § 404.988(c)(1).

2. The results of the DNA testing between NH and Jonathan and the subsequent court order, both precluding NH's paternity of Jonathan, is likely sufficient to rebut the presumption that NH is the father of Jonathan and warrant the reopening of the November 23, 2004 determination.

The determination to reopen this case essentially hinges on whether the results of the DNA testing and subsequent court order is sufficient to rebut the presumption that Jonathan is the legitimate child of NH and Michele B~, who were married at the time of Jonathan's birth, March 29, 1990.

In South Carolina, there is a rebuttable presumption that the husband of the child's mother is the child's father. See Mid-South Insurance Co. v. Doe, 274 F. Supp 2d 757, 763 (D.S.C. 2003); Chandler v. Merrell, 353 S.E.2d 133, 134-35 (S.C. 1987). This presumption, however, can be rebutted by clear evidence that it was impossible for the husband to have been the father of the child. See Brown v. Ryder Tuck Rental, 389 S.E.2d 161 (S.C. Ct. App. 1990).

Although the law is unclear as to what constitutes “clear evidence,” the courts have provided some guidance. The presumption of NH being the father “must be overcome by the showing of a strong state of circumstances such as impossibility of access, absolute non-access, abandonment, or something equally conclusive.” Lewter v. Thompson, 315 S.E.2d 821, 823 (S.C. Ct. App. 1984) (emphasis added). In Douglass v. Boyce, 519 SE.2d 802 (S.C. Ct. App. 1999), the South Carolina Court of Appeals indicated that a child is presumed to be a legitimate child of the marriage, “unless a paternity action proves otherwise.” Id. at 805. Likewise, the parties' stipulation that the husband is not the biological father of the child “rebuts the presumption that he was not [the child's] natural father.” Mid-South Insurance Co., 274 F. Supp 2d at 763.

Given this authority, we believe an adjudicator could reasonably conclude, based on the facts you provided, that there is clear evidence to rebut the presumption that NH is the father of Jonathan. Despite the fact that Jonathan's mother was married to NH at the time of Jonathan's birth, the results of the October 4, 2003 DNA testing show a 0.00% probability of paternity that NH fathered Jonathan. The DNA test report stated that NH “cannot be the biological father of Jonathan B~, since he and the child do not do share necessary paternal markers in multiple genetic systems.” Likewise, NH was conclusively presumed not to be the father of Jonathan in a subsequent court order dated December 4, 2003.? Even Jonathan's mother has acknowledged to the Agency that NH is not the father of Jonathan. We believe that Jonathan's mother's own acknowledgment that NH is not the father, the court order establishing that NH is not the father, and the DNA test results revealing the 0.00% probability of NH being the father is clear evidence that is conclusive to rebut the presumption of legitimacy. As such, a reopening of the claim, which had allowed Jonathan to receive benefits on the record of the NH, appears appropriate.

3. The birth certification provided is insufficient to establish a rebuttable presumption of paternity under South Carolina Law.

In South Carolina, a birth certificate containing a signature of the mother and the putative father is evidence that creates a rebuttable presumption of paternity. See S.C. Code Ann. § 20-7-956(A)(6). The courts in South Carolina have also recognized that the mere presence of the alleged father's name on the child's birth certificate is insufficient to prove paternity. See Freeman v. Freeman, 473 S.E.2d 467, 472-73 n. 4 (S.C. Ct. App. 1996) (“[a]lthough [the father's] name is on the birth certificate, his signature is not”); see also Pinckney v. Warren, 544 S.E.2d 620, 626 (S.C. 2001) (an unsigned birth certificate is insufficient to establish paternity). In this case, the birth certificate provided does not include a signature of either NH or Jonathan's mother. As such, the birth certificate provided would not create a presumption of paternity. ?

4. A reopening of this claim to investigate the potential of fraud in this case is appropriate.

Section 208(a)(4) of the Social Security Act (Act), 42 U.S.C. § 408(a), provides that whoever has knowledge of the occurrence of any event affecting the initial or continued right to any payment of any individual in whose behalf he/she has applied for, conceals or fails to disclose such event with an intent fraudulently to secure payment, either in a greater amount than is due or when no payment is authorized, shall be guilty of a felony and upon conviction thereof shall be fined under Title 18, United States Code, or imprisoned for not more than five years or both. Likewise, Section 1129(a)(1) of the Act, 42 U.S.C. § 1320a-8(a)(1), provides that any person who makes, or causes to be made, a statement or representation of a material fact for use in determining any initial or continuing right to monthly insurance benefits that the person knows or should know is false or misleading or knows or should know omits a material fact or make such a statement with knowing disregard for the truth shall be subject to, in addition to any other penalties that may be prescribed by law, a civil money penalty of not more than $5,000 for each statement or representation.

The facts of this case reveal that Michelle C~, who filed for benefits on behalf of Jonathan in November 2004, informed the Agency after the fact that she was aware of the DNA testing between NH and Jonathan, but indicated that she had not received the results. However, she subsequently provided the Agency with the DNA test results showing that NH was not the father.

It is highly unlikely that Michelle C~ was unaware of these October 2003 test results when she filed for benefits in November 2004. Michelle C~ was one of the defendants in the civil action that led to the December 4, 2003 court order finding that NH was not the father of Jonathan. In addition, the court order specified that DNA test results showed “a zero probability of paternity.” Given that Michelle C~ was a party to this civil action, it is highly unlikely that she did not know of its outcome. We believe that referral to the Office of the Inspector General for further fact finding as to whether child's benefits were obtained by fraud is appropriate.

CONCLUSION

The Agency has the regulatory authority to reopen the November 23, 2004 determination that Jonathan is entitled to monthly child's benefits. In addition, the evidence of record, including the DNA testing showing a 0.00% probability of paternity and the court order concluding that NH is not the father, is likely sufficient to rebut the presumption that NH is the father of the Jonathan, even though NH was married to Jonathan's mother at the time Jonathan was born. Furthermore, the birth certificate with NH's name is insufficient to establish a rebuttable presumption of paternity, because the birth certificate was unsigned by either NH or Jonathan's mother, and even if a signed birth certificate had been provided, the evidence of record is likely to rebut the presumption of paternity. Finally, the facts of this case raise a suspicion that the benefits in question have been obtained through fraud, and we believe that further investigation of this issue is appropriate.

Mary A. S~

Regional Chief Counsel

By: _____________________

Brian S~

Assistant Regional Counsel

South Carolina applies the Full Faith and Credit Clause, Art. 4 Section 1 of the U.S. Constitution, to recognize domestic law orders of other states. As a result, a North Carolina court Order of Paternity establishing that someone other than the deceased number holder is the claimant's father is sufficient to rebut the presumption of paternity. Since the claimant's mother had affirmed to the North Carolina court the identity of the actual father prior to filing on the claimant's behalf for Social Security benefits on the deceased's record, the Social Security Administration's regulations permit the reopening of this award for fraud or similar fault.

QUESTION

May the Social Security Administration reopen for fraud or similar fault an award of child's benefits, when the mother declared prior to filling the claim that the wage earner, her husband, was not the biological father, and a state court found the wage earner was not the biological father?

ANSWER

For the reasons stated below, it is our opinion that Social Security Administration's regulations allow reopening the award of benefits for fraud or similar fault.

BACKGROUND

According to the information made available to us, Charles E. B~ ("Deceased") and Aimee W~ ("Mother") married on October 23, 1993. The Mother gave birth to Anna B. ("Child") on April 12, 1995. The Deceased died on March 14, 1997, while domiciled in South Carolina. On April 17, 1997, the Mother filed a claim for herself and the Child for survivor's benefits on the record of the Deceased. However, prior to this time, on June 3, 1996, the Mother had affirmed to the Stanley County, North Carolina, court that Garrett H~ ("Father") was the Child's biological father, and on April 30, 1998, a North Carolina state court filed an Order of Paternity establishing paternity in the Father. The Father was ordered to pay and has paid child support for the Child. The Mother thereafter simultaneously collected Social Security benefits on behalf of the Child based on the alleged paternity of the Deceased, and state-ordered child support based on the paternity of the Father.

DISCUSSION

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). If an individual "makes or causes to be made any false statement for representation of a material fact in any application for any payment or for a disability determination under this subchapter," that individual is guilty of a felony. See Section 208(a) of the Social Security Act, 42 U.S.C. § 408(a). In regard to reopening, fraud exists where a person "[w]ith intent to defraud, conceals or fails to disclose a material fact for use in determining rights to Social Security benefits." POMS § GN 04020.010.A.1.b. Similar fault exists when a person "[k]nowingly conceals information that is material to the determination. However, fraudulent intent is not required." POMS § GN 04020.010.A.2.b. 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.3rd 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").

Under the facts described above, the Mother knew that the Deceased was not the biological parent of the Child when she applied for, received, and retained benefits on behalf of the Child on the wage record of the Deceased. The issue that remains is whether the fact is material; that is, whether the Deceased was in fact the parent for Social Security purposes, despite not being the biological parent. The Child is the child of the Deceased, if the Child could have inherited the Deceased's personal property under State inheritance laws. See 20 C.F.R. § 404.355(a)(1). If the insured is deceased, the Agency looks to the laws of state in which the insured had his or her permanent home when he died. See 20 C.F.R. § 404.355(b)(4). Under the facts described above, this would be the state of South Carolina.

Under South Carolina law, the birth of a child within wedlock creates a rebuttable presumption that the child is legitimate. See Lewter v. Thompson, 381 S.C. 397, 440, 315 S.E.2nd 821 (1984). "The child is presumed to be a legitimate child of the marriage, unless a paternity action proves otherwise." Douglas v. Boyce, 336 S.C. 318, 325, 516 S.E.2nd 802 (1999). In this case, a North Carolina paternity action has established that the Child is not the legitimate child of the marriage of the Mother and the Deceased. South Carolina applies the Full Faith and Credit Clause, Art. 4 Section 1 of the U.S. Constitution, to recognize domestic law orders of other states. See Marshall v. Marshall, 282 S.C. 336, 340, 318 S.E.2d 133, 136 (1984).

Since such a paternity action establishing that the Child is not the natural child of the Deceased has occurred, and since South Carolina would likely recognize the paternity action, the Child could not inherit "as a natural child." The Mother knew the Child was not the natural child of the deceased when she applied for survivor's benefits. The determination or decision awarding her benefits may therefore be reopened for fraud or similar fault. We recommend that you refer the matter to the Office of the Inspector General for possible criminal action.

CONCLUSION

Under the facts of this case as presented, the award of survivor's benefits may be reopened for fraud or similar fault.

Mary A. S~

Regional Chief Counsel

By: _____________________

Rollin M~

Assistant Regional Counsel

A South Carolina Family Court Order declaring the number holder to not be the father of our beneficiary qualifies as "New and Material Evidence" permitting the reopening of the child's award within four years of the date of that award.

Before we can reopen a claim, we need to have an affirmative action in writing (GN 04001.050) which is a written statement either by the claimant or SSA which indicates there is a basis for disagreement with the correctness of the determination.

This opinion indicates that the court and the NH questioned the correctness, but never indicated that SSA was aware or established an affirmative action in writing. If no affirmative action in writing existed, then this case cannot be reopened.

You originally requested our opinion on whether a South Carolina family court order finding that John G. S~ (NH) was not the biological father of Claimant affects the prior child-status determination under South Carolina law. Subsequently, you asked whether the recent revisions to Program Operations Manual System (POMS) GN 0410.030 would resolve this matter. It is our opinion that the family court order can constitute new and material evidence that would affect the child-status determination. This conclusion is consistent with POMS GN 0410.030.

The facts as presented are that NH receives Social Security disability benefits, and the children's portion is divided among NH's two children from a prior marriage and Claimant. Claimant was born on April 23, 2000, prior to the marriage of NH to the biological mother, Lindsay A. S~. NH married Ms. S~ on or about May 23, 2000. Under South Carolina intestacy law, a child is entitled to take from the father if "the natural parents participated in a marriage ceremony before or after the birth of the child." See S.C. Code Ann. § 62-2-109(2)(i) (1997). Claimant was entitled in January 2001 as the legitimated child on the record of NH.

Ms. S~ informed NH in December 2002 that Claimant was not his biological child. Subsequently, NH filed a Motion for Temporary Relief in a South Carolina family court requesting DNA testing to determine if Claimant was his biological child. Although it is not clear from the documents provided whether this testing was performed, the court issued a decree of divorce on February 13, 2004, in which it determined that Claimant was not the biological child of NH. The court also found NH had no parental rights to or parental responsibility for Claimant. The court's termination of Plaintiff's parental rights appears to be in accordance with South Carolina law. Under S.C. Code Ann. § 20-7-1572(5) (2004), a family court may order the termination of parental rights if "[t]he presumptive legal father is not the biological father of the child."

The court's paternity determination would seem to be due some deference under Social Security Ruling (SSR) 83-37c. Through this SSR, the Agency adopted as national policy the rationale from Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). In Gray, the Sixth Circuit held the Commissioner is not free to ignore a state court determination on a domestic relations issue when the state court had jurisdiction over the issue, the issue was genuinely contested by parties with opposing interests, and the decision was consistent with the law set forth by the highest court in the state. Because the order reveals no inconsistency with South Carolina law, the Agency would not be free to ignore the court's conclusion that NH was not Alicia's father.

Although the termination of parental rights is ineffective to disqualify a child to inherit from or through a parent, see S.C. Code Ann. § 62-2-109(3) (1997), the court's finding that Claimant was not NH's biological child would affect the parent-child relationship so as to preclude Claimant from inheriting from or through NH. Under South Carolina's intestate succession laws, a "child" is the natural or adopted child of the parent and excludes any person who is only a stepchild, foster child, grandchild, or any more remote descendant. See S.C. Code Ann. §§ 62-1-201(3), (21) (1997). Given that the court's order establishes that Claimant has no biological relationship to NH, she would not be able to inherit from him under South Carolina's intestate succession laws.

The Agency may reopen a determination within four years of the date of the initial determination if there is good cause. See 20 C.F.R. § 404.988(b). Good cause for reopening includes receipt of "new and material evidence." 20 C.F.R. § 404.989(a)(1). Evidence is "new" if it is "not duplicative or cumulative" and is "material" if there is a "reasonable possibility that the new evidence would have changed the outcome." Wilkins v. Secretary of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991). The factual situation presented in this case is analogous to Example 1 of POMS GN 0410.030. Under Example 1, the Agency may reopen and revise a determination based on "new and material evidence" within four years of the date of the notice where the Agency receives a revised court order that shows that Claimant is not the child of NH and takes affirmative action in writing questioning the correctness of the determination awarding benefits.

Although we are now outside the four year period from Claimant's entitlement in January 2001, SSA may revise the determination or decision after the applicable period if SSA began the investigation into whether to revise the determination or decision before the applicable period expired. See 20 C.F.R. § 404.991a. If SSA has "diligently pursued" the investigation to its conclusion, SSA may revise the determination or decision. 20 C.F.R. § 404.991a(a). Although diligent pursuit is presumed to have been met where the revised determination was made within six months from the date that SSA began its investigation, SSA looks to the facts and circumstances of the particular case to determine whether the necessary action was undertaken and carried out "as promptly as the circumstances permitted." Id. If the investigation has not diligently pursued to its conclusion, SSA will not revise the determination if it is unfavorable to Claimant. See 20 C.F.R. § 404.991a(b).

Because the court's order provides a basis for reopening and reversing the initial award of benefits, the order supports a finding that Claimant was never entitled to benefits on NH's record. Consequently, the benefits that Claimant has received to date would constitute an overpayment; however, we believe that the circumstances may justify waiver of that overpayment. The regulations set forth a two-prong test to determine if waiver is appropriate: (1) the overpaid individual was without fault in connection with an overpayment; and (2) adjustment of the recovery of such overpayment would either defeat the purpose of Title II or be against equity and good conscience. See 20 C.F.R. §§ 404.506-404.509. What constitutes fault on the part of an overpaid individual or on the part of any other individual from whom SSA seeks to recover the overpayment depends on whether the incorrect payment resulted from:

1. (a) 

   An incorrect statement made by the individual which he knew or should have known to be incorrect; or

2. (b) 

   Failure to furnish information which he knew or should have known to be material; or

3. (c) 

   With respect to the overpaid individual only, acceptance of a payment which he either knew or could have been expected to know was incorrect.

20 C.F.R. § 404.507. Given that Claimant is a young child, she is clearly without fault in receiving the overpayment under 20 C.F.R. § 404.507. Nevertheless, Claimant would still need to present evidence that collecting the overpayment would defeat the purpose of Title II of the Act or be against equity and good conscience. See 20 C.F.R. §§ 404.508, 404.509.

Even if SSA determines that Claimant is entitled to a waiver, the Agency must then determine whether her representative payee was at fault in causing the overpayment. See 20 C.F.R. § 404.507. Although it does not appear that NH was aware that Claimant was not his biological child, the information obtained during the investigation suggests that Ms. S~ may have been at fault in applying for and receiving benefits on Claimant's behalf on NH's account. Filings in family court reveal that Ms. S~ informed NH that he was not Claimant's father when the couple separated in December 2002 and identified the father as "Donnie." This statement suggests that Ms. S~ had reason to believe that NH was not Claimant's father at a much earlier time.

POMS GN 02250.032 provides guidance in determining whether an overpaid person is without fault in receiving an overpayment based on an incorrect relationship determination. The example provided under this POMS section involves a woman who applied to be the representative payee for her legally adopted infant granddaughter; however, and it was later discovered that the granddaughter had never been adopted. Under this example the individual was at fault for causing the overpayment and liable to repay. Thus, it would appear that Ms. S~ would be at fault given that she named NH as Claimant's father previously.

In conclusion, it is our opinion that the family court order showing that NH is not Claimant's biological provides good cause for reopening the application for benefits under NH's account pursuant 20 C.F.R. § 404.988(b). Because SSA received the order and began its investigation within four years of the initial determination, SSA may issue an unfavorable decision pursuant to 20 C.F.R. § 404.991a. The reopening of Claimant's application would result in a finding that she was not entitled to benefits. As a result, SSA would need to assess an overpayment for the full amount of benefits and would need to consider whether a waiver is appropriate.

Very truly yours,

Mary A. S~

Regional Chief Counsel

Joseph P. P~, III

Assistant Regional Counsel