May the Social Security Administration (SSA) reopen a prior determination and terminate
child’s auxiliary benefits for B~ (the child), where genetic test results show 0.00%
probability that he is the child of the number holder, E~ (the NH)?
No. The agency suspended the child’s benefits on February XX, 2013, but did not complete
a timely investigation into whether to revise the initial determination and none of
the conditions that would allow the agency to reopen the initial determination more
than four years later are present.
The child began receiving auxiliary benefits from the NH’s record in November 2010
based on a presumption of legitimacy under Idaho state law. The NH had married the
child’s mother on June XX, 2010. The child was born on October XX, 2010, and the birth
certificate listed the NH as the child’s father. The NH has two other children (H~
and J~) who have received auxiliary benefits on his record since 2008.
In February 2013, the agency suspended the child’s auxiliary benefits based on evidence
that the NH was not the child’s biological father. The evidence upon which the agency relied at that time is no longer available in
the agency’s system, but the NH has subsequently submitted genetic test results showing
a 0.00% probability that the NH was the child’s father. It is our understanding that
the child’s benefits have remained suspended, but the agency has not taken any further
action on this claim before asking for this legal opinion.
I. Federal Law on Child’s Insurance Benefits
To be entitled to child’s insurance benefits under the Act, the claimant must be the
NH’s “child” as that term is defined in 42 U.S.C. § 416(e). 42 U.S.C. § 402(d)(1).
One way to show a parent-child relationship is by applying State inheritance law.
42 U.S.C. § 416(h)(2)(A). The claimant can be considered the NH’s natural child if
she could inherit the NH’s personal property as his natural child under State inheritance
law, if the NH died intestate (i.e., without a will). Id.; 20 C.F.R. §§ 404.355(a)(1), (b)(1) & (4). Because the NH is living, we apply the
law of the State where he had his permanent home at the time that the claimant filed
her application. 20 C.F.R. § 404.355(b)(3); see also District of Columbia v. Murphy, 314 U.S. 441, 455 (1941) (“The place where a man lives is properly taken to be his
domicile until facts adduced establish the contrary.” (citations omitted)). Lacking
information or evidence to the contrary, we apply Idaho law.
II. Idaho State Law
In Idaho, the intestate estate passes to the decedent’s surviving spouse and issue.
Idaho Code §§ 15-2-101 – 15-2-103. “Issue” means all of the decedent’s lineal descendants,
and therefore, includes a child. Idaho Code § 15-1-201(26). A child conceived or born
during a marriage is presumed to be the child of the husband. Idaho Code §§ 7-1119,
16-2002(12); Alber v. Alber, 472 P.2d 321, 326-27 (Idaho 1970). This presumption of the husband’s paternity can
be rebutted by genetic tests that show that the husband is not the father of the child.
Idaho Code § 7-1119.
III. Federal Law on Reopening
If a claimant has been entitled to benefits as the child of an insured individual,
the Social Security Act defines a limited number of terminating events under the Act.
See 42 U.S.C. § 402(d)(1)(D)-(H); 20 C.F.R. § 404.352(b). A later determination that the
child is not the number holder’s biological child is not among those listed. See 42 U.S.C. § 402(d)(1)(D)-(H); 20 C.F.R. § 404.352(b). As a result, the agency may
only stop the child’s benefits if the agency can reopen the original child-status
determination. See 20 C.F.R. § 404.988.
The agency may reopen a determination for different reasons based on how much time
has transpired since the initial determination. Within 12 months of the date of the
notice of the initial determination, the agency may reopen the determination for any
reason. 20 C.F.R. § 404.988(a). Within four years of the date of the notice of the
initial determination, the agency may reopen the determination if the agency finds
“good cause.” 20 C.F.R. § 404.988(b). In the event that the agency reopens and begins
an investigation into whether to revise the determination before the end of that four-year
period, the agency may nevertheless revise the determination after the period as long
as the investigation was “diligently pursued.” 20 C.F.R. § 404.991a. “Diligently pursued”
means that in light of the facts and circumstances of a particular case, the agency
took and carried out the necessary action as promptly as the circumstances permitted.
20 C.F.R. § 404.991a(a). Diligent pursuit is presumed to have been met if the agency
concluded the investigation and if necessary, revised the determination or decision
within 6 months from the date the agency began the investigation. Id. If the investigation is not “diligently pursued,” the agency may revise the determination
only if it will be favorable to the claimant. 20 C.F.R. § 404.991a(b). If the determination
will not be favorable to the claimant, the agency will not revise the determination.
After four years of the date of the notice of the initial determination, the agency
may reopen in limited circumstances. See 20 C.F.R. § 404.988(c). Among the conditions listed for reopening, the agency may
reopen a determination at any time if it was obtained by fraud or similar fault. 20
C.F.R. § 404.988(c)(1). The agency may also reopen after four years if another person
files a claim on the same earnings record and allowance of the claim adversely affects
the claimant’s claim. 20 C.F.R. § 404.988(c)(2). And finally, if the determination
was fully or partially unfavorable to the claimant, the agency may reopen, but only
to correct clerical error or an error that appears on the face of the evidence that
was considered when the determination was made. 20 C.F.R. § 404.988(c)(8). All of
the other special situations that would permit reopening are inapplicable. See 20 C.F.R. § 404.988(c).
In 2010, the agency made an initial determination and awarded auxiliary benefits to
the child based on the presumption of legitimacy for a child born during wedlock pursuant
to Idaho state law. The agency suspended the child’s benefits in 2013, a little over
two years after the initial determination, when the NH provided evidence showing he
was not the child’s biological father. The genetic testing the agency received may
have rebutted the presumption of legitimacy, but for unknown reasons, the agency did
not reopen the 2010 determination and seek to terminate the child’s benefits. Instead,
no action appears to have been taken with respect to this claim until 2016 when the
agency requested this legal opinion.
At this point, none of the conditions for reopening and revising the 2010 determination
is present. The agency received information about the child’s relationship with the
NH within four years of the initial determination, and even assuming that the suspension
of the child’s benefits was a re-opening, the agency did not diligently pursue its
investigation. As a result, and because a redetermination of the claim would likely
be unfavorable to the child, this avenue for revision is now closed. See 20 C.F.R. § 404.991a(b) (explaining that if the agency did not diligently pursue its
investigation, the agency will not revise a determination if it will be unfavorable).
Furthermore, none of the other conditions for reopening a determination after four
years applies. 20 C.F.R. § 404.988(c) (listing conditions for reopening a claim after
four years). The initial determination was based on the evidence available at the
time – i.e., the NH and the child’s mother were married when the child was born. The field office
found no evidence of fraud or similar fault. 20 C.F.R. § 404.988(c)(1). Further, the
NH’s other children, H~ and J~, started receiving child’s benefits in 2008, before
the child. No other person has filed a claim on the NH’s earnings record such that
allowance of the claim would adversely affect the child’s claim. 20 C.F.R. § 404.988(c)(2).
Finally, the initial determination was fully favorable to the child, and not the result
of clerical error or an error that appeared on the face of the evidence. 20 C.F.R.
§ 404.988(c)(8). The child properly received benefits based on the information available
at the time of the initial determination.
In sum, in a situation such as this, where the agency awarded benefits based on a
relationship that is later shown not to have existed, but more than four years have
passed, the agency cannot reopen the initial determination and terminate the child’s
It is our opinion that the agency is unable to reopen and revise the determination
that the child is entitled to benefits on the NH’s record.