Unpublished Disposition, 855 F.2d 864 (9th Cir. 1987)

No. 87-3776.

United States Court of Appeals, Ninth Circuit.

Before FLETCHER and BEEZER,¹  Circuit Judges, and AGUILAR, District Judge.² 

MEMORANDUM³ 

INTRODUCTION.

Appellant-Plaintiff Daron Young has been denied survivor benefits under the Social Security Act (the "SSA"), 42 U.S.C. §§ 301 et seq. (West 1982), on three separate occasions. He now appeals the most recent denial of benefits contending that appellee-defendant Otis Bowen, the Secretary of Health and Human Services (the "Secretary"), lacked substantial evidence for denying his application. Because there is substantial evidence to support the Secretary's conclusion, we affirm the district court.

STANDARD OF REVIEW.

The Secretary's decision must be upheld if the findings of fact are supported by substantial evidence, 42 U.S.C. § 405(g), and if the Secretary applied the proper legal standards. Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). Substantial evidence is " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Walker v. Mathews, 546 F.2d 814, 818 (9th Cir. 1976) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

FACTS:

Appellant Daron Young was born on April 2, 1965. His alleged father, Vernon Young, died in July 1969. Daron Young's birth certificate listed Vernon as Daron's father. Under the SSA, children of deceased wage earners are entitled to receive survivor benefits provided that they meet certain requirements. See 42 U.S.C. § 402(d). An obvious requirement is that the claimant be a child of the decedent. 42 U.S.C. § 402(d) (1). Another requirement is that the child have been a dependent of the decedent at the time of death. 42 U.S.C. § 402(d) (1) (C).

Appellant's mother, Floy Jones, first applied for survivor benefits on behalf of Daron Young on August 6, 1971.⁴  The application was denied because Jones did not prove that Vernon Young was Daron's father. A second application for benefits filed on October 10, 1974, also was denied, that time on the basis of administrative res judicata.

A third application for benefits was filed on December 14, 1983, this time by Daron Young himself, and that application is the subject of this appeal. The Secretary denied Young survivor benefits a third time, initially on the basis of administrative res judicata but later, after review of the application, on the merits. Again the Secretary concluded that Daron had not presented sufficient evidence to support a finding that he is the son of the decedent, Vernon Young. The decision is now before this panel after the Appeals Council denied review, a magistrate found substantial evidence for the Secretary's decision, and the district court adopted the magistrate's findings of fact and conclusions of law and entered judgment on February 12, 1987.

DISCUSSION.

(A) The Legal Standards:

In order to secure benefits under 42 U.S.C. § 402(d), appellant had to prove that he is the unmarried child of Vernon Young, 42 U.S.C. § 402(d) (1) (B), and that he was a dependent of Mr. Young at the time of his death. 42 U.S.C. § 402(d) (1) (c). In determining whether an applicant is a child of a decedent entitled to claim under the survivor provisions, the Secretary must apply the law of intestate succession of the State in which the wage earner was domiciled at the time of his death. See 42 U.S.C. § 416(h) (2) (A). In this case, that law is the law of intestacy of the State of Washington.

With respect to dependency, subsection (d) (3) of 42 U.S.C. § 402 provides that a child shall be presumed dependent upon his father unless at the time of the wage earner's death the wage earner is not living with or contributing support to the child and the child is illegitimate and has not been adopted by the decedent. Subsection (d) (3) further provides that a child deemed to be a child of the insured decedent pursuant to 42 U.S.C. § 416(h) (2) (B) or 42 U.S.C. § 416(h) (3) "shall be deemed to be the legitimate child" of the decedent.⁵ 

Thus, the question of dependency is intimately connected with the child's status. In this case, the SSA affords a presumption of dependency to Daron (as an illegitimate child) if he can prove that he properly would inherit personal property from Vernon Young under Washington's intestacy statute. See 42 U.S.C. § 416(h) (2) (A); Owens v. Schweiker, 692 F.2d 80, 81 (9th Cir. 1982).

At the time of his application, Daron Young was eighteen years old. This creates an additional barrier to receiving benefits. In order to qualify for benefits after the age of seventeen, an applicant must be under the age of nineteen and be a full-time elementary or secondary school student, or disabled. See 42 U.S.C. § 402(d) (1) (B).

In examining the intestacy statute, the Secretary must apply the law of the State as it existed at the time of the Secretary's determination, not at the time of the wage earner's death. Owens, 692 F.2d at 82-83 (9th Cir. 1982) (involving this same issue of Washington intestacy law). That is a significant legal issue here because the Washington intestacy statute was revamped in 1976. Prior to 1976, an illegitimate child could not take by intestate succession unless the father either married the child's mother or acknowledged the child in writing. See Wash.Rev.Code Sec. 11.04.081 (repealed). After 1976, which is the time period when the application in this case was filed, a child may inherit through intestacy if he or she can prove that a social child-parent relationship existed. See Wash.Rev.Code Sec. 26.26.040(4) (A presumption of parentage arises if, while the child is under the age of majority, the father "receives the child into his home and openly holds out the child as his child"). Thus, in this case, if Daron could prove that he is the son of Vernon Young under the Uniform Parentage Act,⁶  he could inherit by intestate succession in the State of Washington and receive benefits here.

If the child cannot prove his status under the laws of intestacy, the SSA provides several alternative methods of proving paternity. The child may establish paternity if he can show that his parents went through a marriage ceremony that was only invalid because of "a legal impediment." 42 U.S.C. § 416(h) (2) (B). Alternatively, paternity may be established if the wage earner: (1) acknowledged his child in writing; (2) is decreed by a court to be the child's parent; or (3) is ordered by a court, prior to death, to provide child support because of parental status. 42 U.S.C. § 416(h) (3) (C).

There is no question that the Secretary applied the proper legal standard in reviewing Young's application. The only serious question presented on appeal is whether there is substantial evidence on the record to support the Secretary's determination.

(B) Assessment of the Evidence:

The following evidence is offered in support of the Secretary's findings and conclusions:

(1) In 1965, Floy Jones alleged that Solomon Cowan was the father of Daron. Cowan denied paternity.

(2) Although Floy Jones also avers that Vernon Young was the father of her daughter Melanie, Jones reported in February 1968, that Sam Minor is Melanie's father.

(3) In a statement of August 27, 1971, Floy Jones stated that Vernon Young never supported her or any of her children.

(4) Floy Jones apparently received public assistance during the period of Vernon Young's life, but never attempted to obtain support from Young.

(5) In the statement of August 27, 1971, Jones also stated that Vernon Young had lived with a number of other women and that he never intended to marry her despite his promises to the contrary.

(6) Appellant presented no documentary evidence that Vernon Young ever acknowledged his paternity of Daron.

(7) Although Daron was eighteen years old at the time of the application, no evidence was presented establishing that he was attending an elementary or secondary school on a full-time basis.

(8) Appellant presented no evidence--neither testimony of witnesses nor records of Vernon Young--which demonstrated that Young was the father of Daron. At best, the evidence on the subject showed that some people thought that Daron was Vernon Young's child, but the witnesses never heard Vernon acknowledge the fact.

Appellant does not contradict any of the foregoing evidence or factual assertions. Instead, he offers essentially four pieces of evidence which undermine the Secretary's decision. Appellant's Brief at 6-7. The nature of this evidence with some comments follows:

(1) Daron's birth certificate listing Vernon as his father:

This is probative evidence contradicting the Secretary's decision. The Secretary does point out that Floy Jones prepared the certificate and that Vernon Young did not sign it.

(2) Spokane County Superior Court order in 1972 determining that Daron was an heir of Vernon Young under the Washington law of intestate succession:

This conclusion was legally erroneous. The Washington law of intestate succession in effect in 1972 allowed an illegitimate child to inherit through intestate succession if (a) the father married the mother at any time, or (b) the father acknowledged the child in writing. See Wash.Rev.Code Sec. 11.04.081 (repealed). Because neither (a) nor (b) occurred, Daron was not a proper legal heir to Vernon Young. The fact that the probate proceeding was initiated by Floy Jones and was uncontested perhaps partially explains the probate court's error. Whatever the reason, however, the decision was entitled to no weight in the Secretary's determination.

(3) Affidavit of Floy Jones and (4) Affidavit of Daron Young:

These affidavits are not part of the record below. Appellant requested a remand from the district court to allow him to present his own affidavit and that of his mother to the Secretary for further scrutiny of the case. Adopting the magistrate's conclusion, the district court ruled that there was no good cause for appellant's failure to include the evidence in the earlier administrative proceedings. Appellant has not raised this issue on appeal. Accordingly, both affidavits are not part of the record of the district court case and are stricken from the ER.

(C) Weighing the Evidence:

There is substantial evidence to support the Secretary's conclusion that appellant has not established that Vernon Young was his father. Appellant produced virtually no firm evidence. The only strong evidence supporting Daron Young's position is his birth certificate. The fact that Floy Jones put Young's name on the certificate does suggest that she believed he was the father at the time. However, Vernon Young did not sign the certificate and there is no evidence suggesting that he consented to his designation as "father."

On the other hand, there is ample evidence on the record which raises doubts about Vernon Young's paternity. Floy Jones' conflicting testimony, her failure to seek child support from Young, and her statement that Young never supported any of his alleged four children all create an inference that Young was not Daron's father. Perhaps most telling is that there is absolutely no evidence going to establish that Vernon Young at any time publicly acknowledged that Daron was his child. Moreover, as a technical matter, Daron Young presented no evidence showing that he was a full-time student. Failure to adduce evidence on this ground alone warrants denial of benefits.

CONCLUSION.

When appellee's items 1 through 8 listed above are considered in light of the items offered by appellant, a reasonable mind would find the evidence adequate to support the Secretary's decision. Accordingly, we affirm the judgment of the district court.

AFFIRMED.