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).
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
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.
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:
An incorrect statement made by the individual which he knew or should have known to
be incorrect; or
Failure to furnish information which he knew or should have known to be material;
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
Laurie G. R~
Assistant Regional Counsel