TN 2 (04-06)

PR 01210.012 Georgia

A. PR 06-088 Termination Based Upon Genetic Testing, Georgia Number Holder - Jimmy R. B~ (NH) Claimant - Deanna S. B~ ]

DATE: March 6, 2006

1. SYLLABUS

A child awarded benefits under Section 216(h)(3) of the Social Security Act based on the number holder's name appearing on the birth certificate may have his award reopened for new and material evidence within four years of the award if DNA testing disproves the number holder's paternity under Georgia's standards.

2. OPINION

In considering these child's claims for benefits, you asked whether a child who met Georgia law requirements to be a legitimated child and was entitled to benefits under 216(h)(3)(C) of the Act, 42 U.S.C. § 416(h)(3)(C) could lose her status as a legitimated child under Georgia law when DNA testing revealed that the NH was not the father of the child. Having considered the evidence presented, and the applicable federal and state law, it is our opinion that Deanna S. B~'s (Claimant) claim can be reopened and that she would lose her status as the child of Jimmy R. B~ (NH).

FACTS

Claimant was determined eligible for benefits on the record of NH because NH was listed as the father on Claimant's birth certificate. NH and Claimant's mother never married. NH believed that Claimant was his child and listed her as his child on his application for disability benefits. Subsequently, DNA testing done by the DNA Diagnostics Center, a laboratory accredited by the American Association of Blood Banks, revealed that there was a zero percent probability that NH was Claimant's father. Claimant became entitled to benefits in June 2003. The DNA testing was performed in September 2004 and presented to the Agency in October 2004.

Statutory and Regulatory Authority

For purposes of child's survivor's benefits under the Social Security Act (Act), a child is defined as the child, adopted child or stepchild of an insured individual. See § 216(e) of the Act, 42 U.S.C. § 402(e). Where, as here, a claimant's mother and putative father never married, the child claimant's status as the surviving child of a number holder is governed by either section 216(h)(3)(C) of the Act, or section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A). To establish child status under section 216(h)(3)(C) of the Act, a claimant must show that he or she is a natural child of the number holder and one of the following: (1) that the number holder acknowledged in writing that the child claimant is his child; (2) that a court decreed the number holder to be the father of the child claimant; (3) that the court ordered the number holder to contribute to the support of the child claimant; or (4) that the number holder is the father and was living with or contributing to the support of the child claimant at the time the number holder died. Here, the NH acknowledged Claimant as his child when he allowed his name to be listed on the birth certificate. The child qualified under section 216(h)(3)(C).

A child can also qualify under section 216(h)(2)(A) of the Act. To qualify for benefits under section 216(h)(2)(A), a claimant must show that he or she would be entitled to a child's share of the number holder's intestate personal property under the law of the state in which the number holder was domiciled at the time of his death. According to the record, the NH is in Georgia now and there is no evidence suggesting that the NH's domicile is other than Georgia. We conclude that the NH is domiciled in Georgia and that Georgia's law of intestate succession is applicable in determining the child claimant's status as the lineal descendant of the NH for purposes of section 216(h)(2)(A) of the Act. For a person born out of wedlock to establish the status of lineal descendant, Georgia law provides as follows:

For purposes of intestate succession in Georgia, a child born out of wedlock may not inherit from or through the child's father or any paternal kin unless: 1) a court of competent jurisdiction entered an order declaring the child to be legitimate; 2) a court of competent jurisdiction has otherwise entered a court order establishing paternity; 3) the father has executed a sworn statement signed by him attesting to the parent-child relationship; 4) the father has signed the birth certificate of the child; or 5) there is clear and convincing evidence that the child is the child of the father.

O.C.G.A. Sec. 53-2-3 (2005).

Under Georgia inheritance law, paternity for the purposes of inheritance can be established by DNA evidence of 97 percent or greater probability of paternity, which is considered "clear and convincing" evidence. O.C.G.A. Sec. 53-2-3(2)(B)(ii) (2005). DNA tests also are used in other contexts in Georgia. A child support determination can be set aside in some instances based upon DNA evidence showing that the male determined to be the father could not be the father. O.C.G.A. Sec. 19-7-54 (2005). The requisite DNA evidence must be obtained from genetic testing as authorized under O.C.G.A. 19-7-46 (an accredited laboratory) and must show a zero percent probability that the male once considered the father was actually the father. O.C.G.A. Sec. 19-7-54(a)(2) (2005). Because DNA testing is used in other contexts in Georgia to rule out a man as a father, we believe that Georgia courts would apply those rules in the inheritance context as well, regarding DNA tests ruling out paternity as "clear and convincing" evidence.

ANALYSIS

The first issue raised is whether the results of the DNA testing justify reopening the Social Security Administration (SSA) determination that Claimant is entitled to child's benefits. If a child has been entitled to benefits under the record of an insured individual determined to be the child's father, 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) (2005). As a result, SSA may only stop Claimant's benefits based on NH's earnings record if SSA reopens the original child-status determination. See 20 C.F.R. § 404.988 (2005).

SSA may reopen a determination within four years of the date of the initial determination if SSA finds 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." Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998); Keeton v. Dep't of Health and Human Servs., 21 F.3d 1064, 1068 (11th Cir. 1994). This court standard, applicable to sentence 6 remands, is similar to the regulatory standard at 20 C.F.R. Sec. 404.989, POMS GN 04010.030 (new and material evidence is evidence that was not part of the file when the final determination was made, relates back to the time of the original determination, and shows facts that would result in a conclusion different from the conclusion originally reached). The DNA testing results are "new" given that they did not exist at the time of the initial determination. The testing results would also meet the "materiality" test because they show that NH could not be Claimant's father. As a result, the DNA testing results would provide good cause for reopening the initial determination. SSA apparently received DNA tests in October 2004. Claimant's entitlement was determined in December 2002. Thus, it appears that SSA began its investigation within the four-year period of the date of the notice of initial determination. The initial determination can be reopened.

Claimant cannot show that he continues to qualify under section 216(h)(2)(A) of the Act. Under Georgia law, DNA tests have been widely used to exclude a man as the father of a child. A purported father can file a motion to set aside a determination of paternity based on the basis of newly discovered evidence, including DNA evidence that shows a zero percent probability that the purported father is actually the father. O.C.G.A. Sec. 19-7-54 (2005). The presumption of validity of even a child born in wedlock can be overcome by clear evidence to the contrary. Families First v. Gooden, 439 S.E.2d 34 (Ga. App. 1993). In this case, the court found that blood tests excluding the husband as the father of the child was clear and convincing evidence sufficient to rebut the presumption of legitimacy. Further, with respect to the weight accorded to blood test results establishing non-paternity, O.C.G.A. Sec. 19-7-49(b) provides that, "On a finding that the alleged father is not the father of the child, the court shall issue an order declaring this finding." DNA testing excluding a man as a child's father has not been used in the inheritance context in Georgia, but DNA testing can be used to establish paternity for inheritance purposes. O.C.G.A. Sec. 53-2-3(2)(B)(ii) (2005). Accordingly, we believe that Georgia courts would find DNA evidence excluding a man as a father to be "clear and convincing" evidence in the inheritance context.

Claimant also would not be entitled to continued benefits under section 216(h)(3) of the Act or under state law provisions. To be entitled to benefits under section 216(h)(3), the applicant must first establish that he or she is the "son or daughter of a fully or currently insured individual." 42 U.S.C. § 416(h)(3). Given that DNA testing results clearly establish that Claimant is not the biological child of the NH, he cannot show that he is the son of NH. As a result, Claimant cannot be deemed the child of the NH under section 216(h)(3) of the Act.

As previously discussed, DNA testing results cannot provide a basis for terminating Claimant's benefits within the meaning of 20 C.F.R. § 404.352(b). Because the results can only provide a basis for reopening and reversing the initial award of benefits, they can only support a finding that Claimant was never entitled to benefits on NH's record. Consequently, the benefits Claimant has received to date would constitute an overpayment; however, the circumstances might 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. An incorrect statement made by the individual which he knew or should have known to be incorrect; or

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

  3. 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 the Claimant is a young child, he 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, SSA must then determine whether his representative payee was at fault in causing the overpayment. See 20 C.F.R. § 404.507. We do not offer an opinion on this issue, as there is no evidence in the current record that the mother or father knew the NH was not Claimant's father.

In conclusion, the DNA testing results showing that Claimant is not the child of the NH is new and material evidence that 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 DNA testing results 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 Claimant is not entitled to benefits. As a result, SSA would need to assess an overpayment for the full amount of benefits and consider whether a waiver is appropriate.

Mary A. S~
Regional Chief Counsel

By:
Laurie G. R~
Assistant Regional Counsel

B. PR 06-087 Termination Based Upon Genetic Testing, Georgia Number Holders - Harry L. W~ (NH) Claimant - Jordan M. W~

DATE: March 6, 2006

1. SYLLABUS

A child awarded benefits under Section 216(h)(3) of the Social Security Act based on the number holder's name appearing on the birth certificate may have his award reopened for new and material evidence within four years of the award if DNA testing disproves the number holder's paternity under Georgia's standards.

2. OPINION

In considering this claim for child's benefits, you asked whether a child who met Georgia law requirements to be a legitimated child and was entitled to benefits under 216(h)(3)(C) of the Act, 42 U.S.C. § 416(h)(3)(C) could lose his status as a legitimated child under Georgia law when DNA testing revealed that the NH was not the father of the child. Having considered the evidence presented, and the applicable federal and state law, it is our opinion that Jordan M. W~' (Claimant) claim can be reopened and that he would lose his status as the child of Harry L. W~ (NH).

FACTS

Claimant was determined eligible for benefits on the record of NH because number holder's name was on Claimant's birth certificate. NH and Claimant's mother were never married. NH believed that Claimant was his child when his name was listed on the birth certificate. Subsequently, DNA testing done by the DNA Diagnostics Center, a laboratory accredited by the American Association of Blood Banks, revealed that there was a zero percent probability that NH was Claimant's father. Claimant became entitled to benefits in December 2002. The DNA testing was performed in April 2004 and presented to the Agency in October 2004. NH is seeking to modify Claimant's birth certificate.

Statutory and Regulatory Authority

For purposes of child's survivor's benefits under the Social Security Act (Act), a child is defined as the child, adopted child or stepchild of an insured individual. See § 216(e) of the Act, 42 U.S.C. § 402(e). Where, as here, a claimant's mother and putative father never married, the child claimant's status as the surviving child of a number holder is governed by either section 216(h)(3)(C) of the Act or section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A). To establish child status under section 216(h)(3)(C) of the Act, the child claimant must show that he or she is a natural child of the number holder and one of the following: (1) that the number holder acknowledged in writing that the child claimant is his child; (2) that a court decreed the number holder to be the father of the child claimant; (3) that the court ordered the number holder to contribute to the support of the child claimant; or (4) that the number holder is the father and was living with or contributing to the support of the child claimant at the time the number holder died. Here, the NH acknowledged Claimant as his child when he allowed his name to be listed on the birth certificate. Claimant qualified under section 216(h)(3)(C).

A child can also qualify under section 216(h)(2)(A) of the Act. To qualify for benefits under section 216(h)(2)(A), a claimant must show that he or she would be entitled to a child's share of the number holder's intestate personal property under the law of the state in which the number holder was domiciled at the time of his death. According to the record, the NH is in Georgia now and there is no evidence suggesting that the NH's domicile is other than Georgia. We conclude that the NH is domiciled in Georgia and that Georgia's law of intestate succession is applicable in determining the child claimant's status as the lineal descendant of the NH for purposes of section 216(h)(2)(A) of the Act. For a person born out of wedlock to establish the status of lineal descendant, Georgia law provides as follows:

For purposes of intestate succession in Georgia, a child born out of wedlock may not inherit from or through the child's father or any paternal kin unless: 1) a court of competent jurisdiction entered an order declaring the child to be legitimate; 2) a court of competent jurisdiction has otherwise entered a court order establishing paternity; 3) the father has executed a sworn statement signed by him attesting to the parent-child relationship; 4) the father has signed the birth certificate of the child; or 5) there is clear and convincing evidence that the child is the child of the father.

O.C.G.A. Sec. 53-2-3 (2005).

Under Georgia inheritance law, paternity for the purposes of inheritance can be established by DNA evidence of 97 percent or greater probability of paternity, which is considered “clear and convincing” evidence. O.C.G.A. Sec. 53-2-3(2)(B)(ii) (2005). DNA tests also are used in other contexts in Georgia. A child support determination can be set aside in some instances based upon DNA evidence showing that the male determined to be the father could not be the father. O.C.G.A. Sec. 19-7-54 (2005). The requisite DNA evidence must be obtained from genetic testing as authorized under O.C.G.A. 19-7-46 (an accredited laboratory) and must show a zero percent probability that the male once considered the father was actually the father. O.C.G.A. Sec. 19-7-54(a)(2) (2005). Because DNA testing is used in other contexts in Georgia to rule out a man as a father, we believe that Georgia courts would apply those rules in the inheritance context as well, regarding DNA tests ruling out paternity as “clear and convincing” evidence.

ANALYSIS

The first issue raised is whether the results of the DNA testing justify reopening the Social Security Administration (SSA) determination that Claimant is entitled to child's benefits. If a child has been entitled to benefits under the record of an insured individual determined to be the child's father, 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) (2005). As a result, SSA may only stop Claimant's benefits based on NH's earnings record if SSA reopens the original child-status determination. See 20 C.F.R. § 404.988 (2005).

SSA may reopen a determination within four years of the date of the initial determination if SSA finds 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.” Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998); Keeton v. Dep't of Health and Human Servs., 21 F.3d 1064, 1068 (11th Cir. 1994). This court standard, applicable to sentence 6 remands, is similar to the regulatory standard at 20 C.F.R. Sec. 404.989, POMS GN 04010.030 (new and material evidence is evidence that was not part of the file when the final determination was made, relates back to the time of the original determination, and shows facts that would result in a conclusion different from the conclusion originally reached). The DNA testing results are “new” given that they did not exist at the time of the initial determination. The testing results would also meet the “materiality” test because they show that NH could not be Claimant's father. As a result, the DNA testing results would provide good cause for reopening the initial determination. SSA apparently received DNA tests in October 2004. Claimant's entitlement was determined in December 2002. Thus, it appears that SSA began its investigation within the four-year period of the date of the notice of initial determination. The initial determination can be reopened.

Claimant cannot show that he continues to qualify under section 216(h)(2)(A) of the Act. Under Georgia law, DNA tests have been widely used to exclude a man as the father of a child. A purported father can file a motion to set aside a determination of paternity based on the basis of newly discovered evidence, including DNA evidence that shows a zero percent probability that the purported father is actually the father. O.C.G.A. Sec. 19-7-54 (2005). The presumption of validity of even a child born in wedlock can be overcome by clear evidence to the contrary. Families First v. Gooden, 439 S.E.2d 34 (Ga. App. 1993). In this case, the court found that blood tests excluding the husband as the father of the child was clear and convincing evidence sufficient to rebut the presumption of legitimacy. Further, with respect to the weight accorded to blood test results establishing non-paternity, O.C.G.A. Sec. 19-7-49(b) provides that, “On a finding that the alleged father is not the father of the child, the court shall issue an order declaring this finding.” DNA testing excluding a man as a child's father has not been used in the inheritance context in Georgia, but DNA testing can be used to establish paternity for inheritance purposes. O.C.G.A. Sec. 53-2-3(2)(B)(ii) (2005). Accordingly, we believe that Georgia courts would find DNA evidence excluding a man as a father to be “clear and convincing” evidence in the inheritance context.

Claimant also would not be entitled to continued benefits under section 216(h)(3) of the Act or under state law provisions. To be entitled to benefits under section 216(h)(3), the applicant must first establish that he or she is the “son or daughter of a fully or currently insured individual.” 42 U.S.C. § 416(h)(3). Given that DNA testing results clearly establish that Claimant is not the biological child of the NH, he cannot show that he is the son of NH. As a result, Claimant cannot be deemed the child of the NH under section 216(h)(3) of the Act.

As previously discussed, DNA testing results cannot provide a basis for terminating Claimant's benefits within the meaning of 20 C.F.R. § 404.352(b). Because the results can only provide a basis for reopening and reversing the initial award of benefits, they can only support a finding that Claimant was never entitled to benefits on NH's record. Consequently, the benefits Claimant has received to date would constitute an overpayment; however, the circumstances might 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. An incorrect statement made by the individual which he knew or should have known to be incorrect; or

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

  3. 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 the Claimant is a young child, he 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, SSA must then determine whether his representative payee was at fault in causing the overpayment. See 20 C.F.R. § 404.507. We do not offer an opinion on this issue, as there is no evidence in the current record that the mother or father knew the NH was not Claimant's father.

In conclusion, the DNA testing results showing that Claimant is not the child of the NH is new and material evidence that 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 DNA testing results 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 Claimant is not entitled to benefits. As a result, SSA would need to assess an overpayment for the full amount of benefits and consider whether a waiver is appropriate.

Mary A. S~
Regional Chief Counsel

By:
Laurie G. R~
Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501210012
PR 01210.012 - Georgia - 05/05/2011
Batch run: 05/05/2011
Rev:05/05/2011