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BARNES v. RICHARDSON

April 17, 1972

George BARNES, on behalf of Monica Barnes, an Infant 4 Years of Age, Plaintiff,
v.
Elliot RICHARDSON, as Secretary of the Department of Health, Education and Welfare, Defendant


Bonsal, District Judge.


The opinion of the court was delivered by: BONSAL

MEMORANDUM

BONSAL, District Judge.

 This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to review a decision of the defendant denying plaintiff's application on behalf of his alleged illegitimate daughter, Monica, for child's insurance benefits under Section 202(d) of the Act, 42 U.S.C. § 402(d), which provides for the payment of insurance benefits to the child, as defined in Section 216 of the Act, 42 U.S.C. § 416, of a disabled wage earner. Plaintiff moves for an order of summary judgment reversing the defendant's determination.

 On June 28, 1967 plaintiff was awarded disability benefits pursuant to Section 206(1) of the Act, 42 U.S.C. § 406(1), for a period of disability beginning on April 19, 1966. On December 29, 1966, Monica was born out of wedlock to Evelyn Hasty, and on May 7, 1968 plaintiff applied for insurance benefits on behalf of Monica, stating that she was his daughter. On June 21, 1968 Evelyn Hasty also applied for insurance benefits on behalf of Monica.

 On September 23, 1968 their applications were denied on the ground that Monica did not meet the definition of "child" under the Act. On October 10, 1968 plaintiff requested reconsideration of this determination, and by written memorandum dated February 5, 1969 the initial disallowance was affirmed. Thereafter, on September 10, 1969, at plaintiff's request a hearing was held before a hearing examiner of the Social Security Administration's Bureau of Hearings and Appeals, at which hearing the plaintiff appeared pro se. In a written decision filed September 23, 1969 the hearing examiner held that Monica was not entitled to child's insurance benefits.

 On July 15, 1970 an order of filiation was entered by the New York State Family Court adjudging plaintiff to be Monica's father. This order was submitted to the hearing examiner as new evidence, and by written decision dated August 31, 1970 the hearing examiner once again held that Monica was not entitled to child's insurance benefits, this time because the order of filiation was not in existence at the time plaintiff's period of disability began. With the assistance of counsel, plaintiff appealed this determination, and on November 10, 1970 the Appeals Council of the Bureau of Hearings and Appeals affirmed the hearing examiner's determination. On January 8, 1971 plaintiff commenced this action.

 Section 216, 42 U.S.C. § 416, provides in pertinent part as follows:

 
"(e) The term 'child' means (1) the child or legally adopted child of an individual . . .
 
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"(h)(2)(A) In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this subchapter, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or, if such insured individual is or was not so domiciled in any State, by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.
 
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"(3) An applicant who is the son or daughter of a fully or currently insured individual, but who is not (and is not deemed to be) the child of such insured individual under paragraph (2) of this subsection, shall nevertheless be deemed to be the child of such insured individual if:
 
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"(B) in the case of an insured individual entitled to disability insurance benefits, or who was entitled to such benefits in the month preceding the first month for which he ...

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