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June 17, 1983


The opinion of the court was delivered by: CURTIN

This matter concerns plaintiff's application for surviving child insurance benefits authorized pursuant to section 202(d)(1) of the Social Security Act, 42 U.S.C. § 402(d)(1).The Administrative Law Judge [ALJ], before whom plaintiff initially appeared, determined that plaintiff was eligible for these benefits on March 9, 1982, under 42 U.S.C. §§ 216(h)(2) and 216(h)(3). Subsequently, the Appeals Council, on its own motion, reversed this decision and found that plaintiff was not eligible for these benefits. Plaintiff then filed this action seeking reversal of the Secretary's decision.

Because this court finds that the Secretary has failed to follow her own promulgated regulations in this specific case, the decision of the Secretary is reversed, and the Department of Health and Human Services is directed to pay plaintiff surviving insurance benefits under the Social Security Act.

 The facts are not in dispute and are briefly summarized as follows. Plaintiff Kathleen M. Donaldson and William McDougall, the deceased wage earner, "maintained an affectionate and loving relationship," from August, 1978, until his death (Government Memorandum of Law, Docket Item 8, p.3; Tr. 12-13). They were never married to each other, nor did they live together, and Mr. McDougall did not contribute to the support of plaintiff (Tr. at 33-34). As a result of their relationship, Kristen M. Donaldson was conceived in early September, 1979 (Tr. at 59-60). Tragically, Mr. McDougall was killed in an automobile accident approximately two weeks later, on September 29, 1979 (Tr. at 69). On June 2, 1980, Kristen Donaldson was born, some 8 1/2 months after the death of Mr. McDougall (Tr. at 48) (see also Government Memorandum of Law, Docket Item 8).

 There is no dispute that Mr. McDougall is the father of Kristen. This is acknowledged by all the parties, including the government (Government Memorandum of Law, Docket Item 8, p.8). A paternity petition was filed in Erie County Family Court on October 6, 1980, and an order of filiation was entered by Family Court Judge Trost on December 10, 1980, declaring William R. McDougall to be the father of Kristen Donaldson (Tr. at 51).

 The regulations, 20 C.F.R. § 404.354, et seq., and the statutes, 42 U.S.C. §§ 416(h)(2) and 416(h)(3) specify various methods by which a parent-child relationship can be demonstrated in order for a child to be eligible for Social Security child insurance benefits. One method used by the Secretary is to look at the laws of the state of the decedent's domicile, and if the child could inherit intestate personal property under state law, the child is eligible to receive Social Security benefits. 42 U.S.C. § 216(h)(2)(a), 20 C.F.R. § 404.354(b). The Appeals Council found the plaintiff ineligible for benefits under this section of the statute, because section 4-1.2 of the New York State Estates, Power and Trusts Law [EPTL] requires either the parents of the child to intermarry or an order of filiation declaring paternity to be entered by a court during the lifetime of the father in order for the child to inherit intestate personal property.

 The Appeals Council also found that the plaintiff was ineligible for benefits under 42 U.S.C. § 416(h)(3)(C). This section of the Social Security Act is similar to ETPL § 4-1.2 in that a child may be ineligible for Social Security benfits if a court of competent jurisdiction enters a decree of paternity during the lifetime of the father.

 Thus, the decision of the Appeals Council denying benefits to the plaintiff was based upon the complete impossibility of the entry of an order of filiation during the lifetime of Mr. McDougall. *fn1" This reasoning and wooden application of the statute by the Appeals Council ignores the Department's regulations promulgated under 20 C.F.R. §§ 404.354(b) and 404.355(c). Section 404.355(b) states in part:

 If these [state] laws would not permit you to inherit the insured's personal property as his or her child, you may still be eligible for child's benefits if you are related to the insured in one of the other ways described in §§ 404.355-404.359.

 Section 404.355 describes various methods of determining who is the insured's natural child, and states:

 You may be eligible for benefits as the insured's natural child if one of the following conditions is met:

 * * *

 (c) Your mother has not married the insured but the insured is your father and he has either acknowledged in writing that you are his child, been decreed by a court to be your father, or been ordered by a court to contribute to your support because you are his child.

 Given the facts of this case, it is clear that the requirements of 20 C.F.R. § 404.355(c) have been met by the plaintiff.There is no requirement in this regulation that an order of filiation or paternity be entered during the lifetime of the father. Rather, the only condition which plaintiff must demonstrate is a court decree of paternity. The Family Court order of Judge Trost has decreed Mr. McDougall to be the father of the plaintiff, and the government has acknowledged that the insured, Mr. McDougall, is the father of the Kristen Donaldson.

 It is now axiomatic that the Social Security Act is a remedial statute to be broadly construed and liberally applied. Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978); Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38, 41 (2d Cir. 1972); Haberman v. Finch, 418 F.2d 664, 667 (2d Cir. 1969). If a Social Security Act regulation "is consistent with the spirit and intent of the Act, it has the full force and effect of law." Collins v. Finch, 311 F. Supp. 301, 306 (W.D. Pa. 1970). Since 20 C.F.R. § 404.355(c) was promulgated within the spirit and intent of the Act, see S. Rep. No. 404, 88th Cong., 2nd Sess. (June 30, 1965), reprinted in [1965] U.S. Code Cong. & Admin. News, 1493, 2049-2050, *fn2" ...

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