You asked whether a revocation by D1~ of his prior acknowledgement of paternity of
M~ pursuant to the Michigan Revocation of Paternity Act would have the effect of terminating
M~’s entitlement to Social Security child benefits on M~’s account.
M~ is time-barred from filing an action for revocation of paternity under Michigan’s
Revocation of Paternity Act. However, M~ may still file a common law action, to the
extent such action remains available, to revoke his acknowledgment of paternity, on
or before June XX, 20XX. But, even were M~ successful in a common law action to revoke
his paternity, this revocation of paternity would not provide a basis for termination
of M~’s child benefits, or for reopening or revising the initial favorable determination.
SUMMARY OF EVIDENCE
The child beneficiary, M~ (the claimant), was born in Livonia, Michigan on March.
D1~ (the numberholder) and D2~ (the claimant’s mother) were not married at the time
of M~’s birth, and have never been married.
The numberholder has received disability benefits since 1987, and has six children,
including the claimant, who have received child’s insurance benefits on his account.
Prior to the claimant’s birth, the claimant’s mother informed the numberholder that
he was the claimant’s father. Accordingly, the numberholder signed the claimant’s
birth certificate as the claimant’s father.
It also appears that the numberholder signed an acknowledgment of parentage pursuant
to Michigan law.
On April 26, 2007, an application for child’s insurance benefits was filed on behalf
of the claimant, which application was subsequently approved on June 5, 2007. The
numberholder was named the representative payee for the claimant’s benefits.
While the precise facts are disputed, sometime between May 2007 and January 2008,
the numberholder learned that he was not the claimant’s father. The claimant’s mother
and the numberholder ended their relationship on or before January 2008.
On June 10 and 11, 2008, the numberholder underwent DNA testing that concluded that
his probability of being the claimant’s father was 0.00%. The conclusion of the DNA
report was that “the alleged father, D1~, cannot be the biological father of M~, since
he and the child do not share the necessary paternal markers in multiple genetic systems”
(emphasis in original).
On February 2, 2010, based on the DNA evidence, the numberholder requested reopening
of the agency’s June 5, 2007 initial determination awarding benefits to the claimant
on the wage earner’s account.
On August 25, 2010 the agency denied the numberholder’s request, because none of the
criteria were met for a “termination of benefits” pursuant to 20 C.F.R. § 404.352(b).
On September 30, 2010, the numberholder made a written request for a hearing before
On October 15, 2010, an ALJ held a hearing pursuant to the numberholder’s request.
In a May 24, 2012 opinion, the ALJ issued a partially favorable decision, wherein,
among other actions, the ALJ remanded the matter to the agency for consideration of
whether, pursuant to 20 C.F.R. § 404.987 through § 404.989, there existed “new and
material evidence” sufficient to satisfy the “good cause” requirement for reopening
and revising the initial award of benefits to the claimant.
The ALJ specifically made “no finding on the issue of whether the determination that
M~ was eligible for child’s insurance benefits should be reopened or revised, but
the merits of [the numberholder’s] request must be considered.”
There is no indication that the numberholder has filed an action to revoke paternity
under either the Michigan Revocation of Paternity Act or common law.
The Michigan Revocation of Paternity Act (the Act), (effective June 12, 2012), requires
that actions for revocation of a prior acknowledgment of paternity be filed within
three years of the execution of the acknowledgment of paternity, or within one year
of the effective date of the Act. Mich. Comp. Laws § 722.1437(1). A court may extend
the limitations period under limited circumstances where the putative father lacked
information about his nonpaternity until after the expiration of the limitations period.
Mich. Comp. Laws § 722.1443(12). This exception is inapplicable here, because the
numberholder knew by August 2008, at the latest, that he was not the claimant’s father,
leaving him until June 12, 2013 within which to file an action challenging paternity.
Mich. Comp. Laws 722.1443 § 7(1) (“The requirement that an action be filed within
3 years after the child’s birth or within 1 year after the date the acknowledgment
is signed does not apply to an action filed on or before 1 year after the effective
date of this act”).
To date, the wage earner apparently has not filed an action for revocation of paternity,
and thus it would appear that he is now time-barred from doing so.
However, the Act also provides that “[a] common law action that was available before
the effective date of this act to set aside a paternity determination … remains available
until 2 years after the effective date of this act … Mich. Comp. Laws § 722.1443(10).
Accordingly, although the statute of limitations for revocation of paternity under
the Michigan Revocation of Paternity Act has run, the numberholder has until June
12, 2014 to file a common law action for revocation of paternity, to the extent such
action is available. Accordingly, if otherwise available, the numberholder may still
file a common law action to revoke paternity on or before June 12, 2014. However,
as discussed below, even if the numberholder revoked his acknowledgement of paternity
of the claimant, this would be insufficient to allow the agency to terminate M~’s
benefits or to reopen and revise the prior initial determination awarding child benefits
to the claimant.
The Wage Earner’s Challenge to Paternity
In 2010, and within four years of the agency’s initial determination awarding benefits
to the claimant, the numberholder submitted DNA test results to the agency, along
with a written request to reopen and revise the prior award of benefits. The DNA test
results show a 0.00% chance that the numberholder is the claimant’s biological father.
On August 25, 2010, the agency denied the numberholder’s request for reopening and
revision of the agency’s June 5, 2007 award of benefits to the claimant. In its decision
denying the wage earner’s request for reopening, the agency relied upon 42 U.S.C.
§ 202(d)(1)(D-H) related to the “termination” of child benefits. The agency indicated
that because there was no evidence of an event sufficient to terminate a child’s benefits
under that section (i.e., death of the child, the child reaching the age of eighteen,
marriage of the child, or termination of the disabled wage earner’s entitlement to
benefits), there was no basis for reopening the initial determination or terminating
the claimant’s benefits.
While it does not change the result, in its first refusal to reopen, the agency appears
to have applied the wrong law. The agency should have applied regulations 20 C.F.R.
§§ 404.987 (reopening and revising determinations and decisions) and 404.988(b) (conditions
for reopening). Pursuant to 20 C.F.R. §§ 404.987 through 404.989, the agency may reopen
and revise an initial determination where new and material evidence is submitted that
is sufficient to satisfy the “good cause” requirement for reopening and revision.
20 C.F.R. § 404.988(b). “A determination … may be reopened … (b) within four years
of the date of the notice of the initial determination if we find good cause, as defined
in § 404.989, to reopen the case …” Id. “We will find that there is good cause to reopen a determination … if (1) new and
material evidence is furnished …” 20 C.F.R. § 404.989 (a)(1); see also POMS §§ GN 04010.001, GN 04001.030, and GN 04001.050 (detailing agency procedures and policies regarding reopening and revision of prior
determinations). Aside from certain exceptions that are inapplicable here, any request
for reopening and revision under these sections must be made (1) in writing by “the
party” to the determination, or (2) the agency must take some “affirmative action
in writing questioning the correctness of the determination or decision” within four
years of the date of notice of the initial determination. POMS GN 04001.050.
Here, while the numberholder made a request for reopening within four years of the
initial determination, his request was insufficient to constitute a request for reopening
by a “party” to the determination. This is because the numberholder was not “the party”
to the initial determination, but rather “the party” to the initial determination
was the claimant (“An affirmative action in writing is a written statement made either
by the claimant or SSA . . .”) POMS GN 04001.050(B). Under certain limited circumstances, a representative payee may be considered
a “party” to an initial determination and may have standing to make a written request
for reopening or revision. POMS GN 03102.100(C)(1). However, those circumstances are not present here. Here, the numberholder
was not acting as the claimant’s representative when he made his request for reopening.
To the contrary, the numberholder was acting in his individual capacity and against
the interests of the claimant. Accordingly, the numberholder’s request for reopening
was insufficient to satisfy the requirements of POMS GN 04001.050.
Here, there is no writing from the claimant requesting reopening or revision. Moreover,
the initial determination may not be reopened on the basis of an “affirmative action
by the agency,” because the agency did not take any affirmative action in writing
that “question[ed] the correctness of the [initial] determination” within the four-year
time limit. POMS GN 04001.050(A). The agency’s denial of the numberholder’s request for reopening occurred within
the four year time frame, but in no way “question[ed] the correctness of the determination.”
POMS GN 04001.050(A). In fact, the agency’s denial supported the continued validity of the agency’s
decision. Accordingly, the agency cannot reopen and revise the prior initial determination
awarding child benefits to the claimant. There is no time bar to reopening where
“fraud or similar fault” is proven. POMS GN 04020.010. Accordingly, should the numberholder prove that the initial determination was procured
by “fraud or similar fault,” the agency may consider whether the initial determination
can be reopened and revised. POMS GN 04020.010. However, the agency may only reopen an initial determination when it can prove fraud
or similar fault (“we should not think, suppose, suspect or speculate that fraud or
similar fault exists; we should be able to prove it.” POMS GN 04020.010(D)(1). Here, fraud has not been alleged, nor is there any evidence of fraud in procuring
the initial determination.
We further note that the numberholder’s DNA results and any action he might take to
revoke his acknowledgement of parentage would not be a basis for terminating M~’s
benefits pursuant to 20 C.F.R. § 404.352(b). The enumerated grounds for termination
are exclusive, and do not include new and material evidence.
The agency may not reopen and revise the initial determination awarding benefits to
the claimant, even in the event that the numberholder is successful in a common law
action to revoke his prior acknowledgement of paternity. Also, neither the DNA evidence
nor any action the numberholder might take to revoke his acknowledgement of parentage
would provide a basis for terminating M~ benefits.
Donna L. Calvert
Regional Chief Counsel, Region V
Sarah G. Malia
Assistant Regional Counsel