You asked whether newly obtained DNA evidence that allegedly shows the deceased number
holder was not the claimant's biological father justifies reopening and revising a
prior determination granting child's benefits.
The DNA evidence, standing alone, does not provide a basis for reopening SSA's prior
determination. However, SSA should monitor the state court proceedings and obtain
any ruling by the state court regarding the DNA evidence or the status of number holder's
relationship to the claimant. SSA could reconsider the possibility of reopening at
According to information made available to us, Brian K. L~, the number holder (NH),
died on May 25, 2005, while a resident of Mississippi. Felicia A. G~ (Claimant) became
entitled to child's survivor's benefits on the wage record of NH in October 2005 based
on a Mississippi Chancery Court order of May 3, 2005, determining NH was Claimant's
father. Claimant's mother was not married to NH. Lebron L~ (Son) also receives benefits
as a surviving child on NH's record. Gloria L~ (Wife), Son's mother, is listed as
NH's wife on NH's certificate of death. Wife has produced a DNA test report dated
March 18, 2008, using samples obtained from Claimant on March 12, 2008, and purportedly
from NH on May 24, 2005, one day before his death. The report shows zero probability
that the alleged father, identified as NH, is the biological father of the child,
identified as Claimant. The report contains no information as to how the father was
identified or the chain of custody of the samples. On May 5, 2008, an attorney for
Claimant's mother filed a motion with the Chancery Court objecting to admission of
the test results, arguing the testing did not comply with Mississippi statutory requirements.
A claimant may be eligible for child's insurance benefits on the earnings record of
an individual who dies a fully or currently insured individual if the claimant is
the insured individual's "child." See Social Security Act (Act) § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1)
(2008). "Child" includes the natural child of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2008). Claimant established
her status as NH's child through section 216(h)(3)(C)(ii) of the Act. This section
provides that a claimant may prove child status by showing, first, that she is the
daughter of the number holder; and, second, that a court has decreed the number holder
to be the claimant's parent. See Act § 216(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(3)
(2008); Program Operations Manual System (POMS) GN 00306.100A.1, C.1. SSA determined Claimant was NH's child based on the May 3, 2005, Mississippi
court order that decreed NH to be Claimant's father.
SSA may reopen a determination within four years of the date of the notice of the
initial determination if SSA finds good cause to reopen the case. See 20 C.F.R. § 404.988(b) (2008). Good cause includes new and material evidence. See 20 C.F.R. § 404.989(a)(1) (2008). In Claimant's case, the DNA report is new because
it did not exist at the time of the determination. However, we do not believe the
DNA report is material given the current circumstances. Therefore, we do not believe
the DNA report provides a basis for reopening SSA's determination that Claimant is
The DNA evidence casting doubt on paternity may be relevant in two ways. The evidence
could show Claimant is not the daughter of NH; thus, the first prong of section 216(h)(3)
would not be met. The evidence could also lead the state court to change its decree,
thus eliminating the second prong found in section 216(h)(3)(C)(ii). We have no information
that the court has issued a new decree.
The statutory scheme does not explicitly look to state law or state decrees to establish
whether a claimant is the biological child of the number holder for the purposes of
section 216(h)(3) of the Act. The relevant POMS section states that the "biological
son or daughter" may be deemed a number holder's child "regardless of child's status
under State Law" if a court decreed the number holder to be the biological parent
prior to the number holder's death. See POMS GN 00306.100A.1, B.1. SSA rules allow use of "genetic test results" to establish biological parentage
for living number holders. See POMS GN 00306.125B.1.c. The parallel section for deceased number holders does not mention genetic test results.
See POMS GN 00306.125.B.2. However, this section allows additional evidence "per GN 00306.125B.1.c if the other parent's whereabouts are unknown or if he/she is incompetent or deceased."
Thus, the POMS appears to disfavor genetic test results in a case such as Claimant's,
where NH is deceased, the other parent is available and competent, and the issue is
an SSA determination based on "other evidence," rather than, for example, on a state-law
right to inherit. POMS GN 00306.100D.1 states, "[E]ven if one of the requirements in POMS GN 00306.100B.1 is met [in this case, the state court decree], you must consider evidence that
is submitted showing that the NH is not the child's biological parent. However, such
evidence must be very persuasive in order to override a written acknowledgment or
court action." Id. We do not believe the unauthenticated DNA report is "very persuasive."
Similarly, Mississippi state law, while not controlling in this case, does not accept
a genetic testing report at face value and has strict rules regarding the authentication
of the reports. These rules govern qualification of testers and require that the expert
attach an affidavit addressing, among other things, how the individuals who supplied
the samples were identified and the chain of custody of the samples. See MISS. CODE ANN. § 93-9-23(1) (2008). In addition, Mississippi law establishes notice
requirements and a right to demand that the expert be called for cross-examination.
See MISS. CODE ANN. §§ 93-9-23(2), (4) (2008). Mississippi applies these requirements
strictly. The Supreme Court of Mississippi has reversed a trial court's reliance on
a genetic testing report simply because the trial court did not call the expert as
a witness, holding that the test results were therefore "inadmissible hearsay." Davis v. Washington, 453 So. 2d 712, 714 (Miss. 1984).
In this case, the information provided does not establish that Wife complied with
the Mississippi statutory requirements regarding the admission of genetic testing.
The circumstances of the sample purportedly from NH are unusual: allegedly obtained
one day before his death and tested almost three years after his death. Furthermore,
Wife may have interests adverse to Claimant; for example, the family maximum may limit
her son's benefits if Claimant is also entitled. Therefore, we can see no reason why
SSA should be more casual about reliability than a Mississippi court would be, especially
in light of the reluctance in the POMS to use genetic testing as "other evidence"
in cases of deceased number holders. We believe that, because the DNA report is not
authenticated, it should not be the basis for reopening and revising SSA's determination
that Claimant is NH's child.
Although the information provided does not provide a basis for reopening, SSA should
monitor the state court proceedings and obtain any ruling issued by the court regarding
NH's status as Claimant's father or the authentication and admissibility of the DNA
report. The POMS states that SSA should obtain a current decree if "there is any indication
of a modification" in a court's finding of paternity. POMS GN 00306.110c.2. A new
decree that NH is not the father would mean that Claimant cannot satisfy section 216(h)(3)(C)(ii)
of the Act, which requires a court adjudication of paternity. SSA also should obtain
any new evidence of authentication of the DNA report that becomes available during
the court proceedings. Evidence of proper authentication of the DNA report may mean
that Claimant is not the biological child of NH, as required to satisfy the requirements
of section 216(h)(3) of the Act.
Either of these situations would satisfy the standards for reopening. However, the
current DNA report lacks authentication and is therefore not reliable. Thus, the DNA
report is not material and should not be the basis for reopening.
For these reasons, we believe that SSA should not reopen Claimant's allowance based
on the genetic testing report.
Mary Ann S~
Regional Chief Counsel
Assistant Regional Counsel