cost of the husband's support was one-half of the total ($4,531.26), and since the husband's own income of $2,988.30 was greater than one-half of the $4,531.26, the husband was not receiving at least one-half of his support from his wife at the time she became entitled to old-age insurance benefits; therefore, the husband is not entitled to husband's insurance benefits.*

THOMSEN, Chief Judge: This is an action brought under Section 205 (g), of the Social Security Act, 42 U.S.C.A. 405 (g), to review a final decision of the Secretary of Health, Education and Welfare, by the Appeals Council, denying husband's insurance benefits to plaintiff. The final decision must be affirmed if it is in accordance with law and supported by substantial evidence. Snyder v. Ribicoff, 307 F. 2d 518 (4 Cir., 1962); Thomas v. Celebrezze, 331 F. 2d 541 (4 Cir., 1964).

Section 202(c) of the Act, 42 U.S.C.A. 402(c), provides that the husband of a currently insured individual [**] entitled to old-age benefits shall be entitled to a husband's insurance benefit if he fulfills certain conditions. The only condition in question here is whether the husband “was receiving at least one-half of his support, as determined in accordance with regulations prescribed by the Secretary," from his wife at the time she became entitled to old-age benefits on August 17, 1964.

The applicable regulations (Section 404.350 of Social Security Administration Regulations No. 4) 20 CFR 404.350, provide:

(b) What Constitutes "At Least One-Half Suport."-A person is receiving at least one-half of his support from the insured individual at a specified time, if such individual, for a reasonable period (as defined in paragraph (e) of this section) before the specified time made regular contributions, in cash or kind, to such person's support and the amount of such contributions equalled or exceeded one-half of such person's support during such period.

(c) "Support" Defined. The term "support" includes food, shelter, clothing, ordinary medical expenses, and other ordinary and customary items for maintenance of the person supported.

(d) "Contributions" Defined.-"Contributions," as used in this section, means contributions actually provided by the contributor from his own property, or the use thereof, or by the use of his own credit. When a person receives, and uses for his support, income from his services or property and such income, under applicable State law, is community property of himself and his spouse, no part of such income is a "contribution" by the spouse to such person's support regardless of any legal interest the spouse may have therein. However, when a person receives, and uses for his support, income from the services of property of his spouse and, under applicable State law, such income is community property, all of such income is considered to be a contribution by such spouse to such person's support.

(e) "Reasonable Period" Defined.—(1) Ordinarily, a period of 12 months (except where there is a change in the support situation in such period) ending with the specified time is a reasonable period for purposes of determining whether the one-half support requirement is met at the specified time. In view of paragraph (e) (1) (20 CFR 404.350 (e) (1)), we should consider first the facts relating to plaintiff's support during the 12-month period preceding August 17, 1964, when his wife became entitled to old

See also SSR 64-53, C.B. 1964, p. 4.

[**] Section 157 (a) (1) of the Social Security Amendments of 1967 (P.L.90–248), enacted January 2, 1968, eliminated the requirement that an insured worker must be currently insured, applicable with respect to applications filed in or after January 1968 and to monthly benefits payable after January 1968. [Ed.]

age insurance benefits. Since Mr. Lewis ceased working on July 27, 1964, the payment center used the period July 27, 1963, to July 27, 1964, as the "support period" so that it would include a full year's salary for Mrs. Lewis. The Appeals Council found that to be a reasonable period.

During that 12-month period Mr. and Mrs. Lewis resided in a house they owned jointly. The husband's income during that period consisted of a disability pension from the Baltimore City Fire Department which totalled $2,988.30. The wife's income consisted of $5,052.37 wages, plus $360.11 dividends. She also withdrew $661.75 from her savings account. Considering the entire withdrawal as income, the total family income for the 12month period was $9,062.53. The family income was used for the necessities of life; very little was saved, and that little was in the form of payroll deductions from the wife's salary.

The Appeals Council stated:

Generally, for the purpose of deciding the question of "one-half support," it is assumed, in the absence of evidence to the contrary, that the members of the household share the family income equally. The cost of the support of any one family member of a family group may be determined by dividing the amount expended for the support of the group by the number of people making up the group. Thus, in the instant case, the total income of the family unit was $9,062.53, and the claimant's support cost would be one-half of the amount ($4,531.26).

Inasmuch as the claimant's own income of $2,988.30 was greater than onehalf of the $4,531.26 required for his support, it follows, and the Appeals Council finds, that the claimant was not receiving at least one-half of his support from his wife at the time she became entitled to old-age insurance benefits.

The Hearing Examiner had taken a diametrically opposite position. He stated:

Since most of their income was needed for necessities and Frances Lewis had income which was substantially greater than the claimant's pension, it is an arithmetical certainty that she paid more than half of his support.

If the Hearing Examiner is right, then, whenever two persons live together and pool their income for living expenses, the one with the smaller income would always receive more than half his support from the other, and if their incomes were exactly equal, each would receive at least onehalf of his support from the other, unless it could be shown that they did not benefit equally from the total expenditures.

The position taken by the Appeals Council includes two propositions. The first is that it will be assumed, in the absence of evidence to the contrary, that the members of a household share equally in the benefits produced by the expenditure of the family income. This is a reasonable presumption, and it is not rebutted by the evidence in this case. The second proposition is that as a matter of law each of the two members of the household must be considered to have exhausted his own income before any part of the other's income can be found to have been used for his benefit, unless he can show that part of his income was used for something other than the family expenses.' There was no evidence in this case that any part of the

'E.g., for the support of an indigent sister not living in the household.

husband's pension was used for anything other than the family expenses, and both the Hearing Examiner and the Appeals Council found that it was all used for that purpose. The position taken by the Appeals Council is supported by Clark v. Celebrezze, 230 F. Supp. 798 (D. Mass. 1964), the only case in point cited or found.2

Paragraph (b) of section 404.350 of the Regulations, quoted above, is not as specific as it might be, and would profit by clarification; but as the Regulation now stands, the position taken by the Appeals Council is not contrary to paragraph (b) and receives some support by way of analogy from paragraph (d), which deals with community property.

An inflexible use of the formula applied by the Appeals Council would be unfair in certain cases. For example, the combination of this formula and the arbitrary use of a 12-month period which is not truly representative may work an injustice in a particular case. See Gray v. Gardner, 261 F. Supp. 736 (D.D.C. 1966). But it is not necessary in this case to approve an inflexible use of the formula, nor to hold that its application should always be conclusive. Here, it appears that the Appeals Council gave consideration to all of the evidence. It stated:

The Appeals Council has carefully considered the testimony of the claimant and Mrs. Lewis, and the documents showing payments on furniture, housing and other necessities, in arriving at its decision. The income derived by the claimant and the wage earner was used for their mutual support and mathematical analysis will not support a finding that the claimant received at least one-half of his support from the wage earner during the support period, and, in fact, an analysis of the income of the parties since 1955 from Mrs.Lewis.

The latter portion of the last sentence in the above quotation is clearly not complete; the Appeals Council evidently intended to say that the result would not have been changed if the entire period from 1955 to 1964 had been considered. Such a conclusion is supported by the evidence. During the years 1956-1963 the wife's income was $3,962.59; $3,800.00; $4,000.00; $3,996.00; $4,417.00; $4,327.00; $4,672.00; and $4,800.00, respectively. During the same period, 1956-1963, the husband's pension from the Baltimore City Fire Department was $2,316.51; $2,250.00; $2,500.00; $2,500.00; $2,500.00; $2,625.22; $2,750.20; and $2,875.20, respectively. During the years 1958 to 1962 they paid off at the rate of $80.00 per month a $4,400.00 mortgage on their jointly-owned home, which they had purchased in 1958, using the proceeds of their former home which had been purchased out of their combined earnings. They also bought a car in 1962 for approximately $2,300.00, using some telephone stock which the wife owned as collateral for a loan to purchase the car, which has been paid. It appears that all or substantially all of the husband's pension and the remainder of the wife's salary, after certain deposits in a savings account and credit union account, were used for the payment of utility bills, food, clothing and their nec essary expenses. The husband has been carried under the wife's Blue Cross plan.

The court cannot agree with the Hearing Examiner that it is an "arithmetical certainty that she paid more than one-half of his support."

2

The problem is not the same as was presented in such cases as Ketcherside v. Celebrezze, 209 F. Supp. 226 (D. Kan., 1962), where two income-earning individuals had contributed to the support of a third (non-earning) individual.

True, the wife contributed more than one-half of the total for the two of them, and for many purposes the husband would be considered to have been partially dependent upon her. But the statute with which we are dealing in this case does not permit the award of husband's benefits based upon partial dependency. Section 202(c) (1) (C), quoted above, requires that the husband prove that he "was receiving at least one-half of his support, as determined in accordance with regulations prescribed by the Secretary," from his wife.

When all of the facts are considered, this court reluctantly agrees that there is substantial evidence in the record to justify the conclusion of the Appeals Council that plaintiff did not receive at least one-half of his support from his wife either during the 12-month period, July 27, 1963 to July 27, 1964, or during the entire period 1955 to 1964.

The decision of the Secretary must be and it is hereby affirmed.

Child's Insurance Benefits

SECTIONS 202 (d) (1). 216(e), and 216(h) (2) (A). — CHILD'S INSURANCE BENEFITS EFFECT OF STATE COURT ORDER OF PATERNITY ON SECRETARY'S DETERMINATION OF STATUS OF CHILD

20 CFR 404.1101, 404.1102, and 404.1109

SCHULTZ v. CELEBREZZE, 267 Fed. Supp. 880 (7-29-67)

SSR 67-32c

The worker died in July 1962 while domiciled in Indiana. In October 1962 a child was born to the plaintiff with whom the worker had been living in Indiana, but whom he had never ceremonially married. Indiana does not recognize common law marriages. Subsequently, an Indiana probate court, in the administration of the worker's estate, entered an order declaring the worker to be the father of the child and the child entitled to inherit from him. Following this order, plaintiff filed an application on behalf of the child. For an illegitimate child to acquire inheritance rights in the intestate property of his father, Indiana law requires that either paternity of the child be established during the father's life, or the putative father have married the child's mother and acknowledged the child as his own. Held: (1) A finding by a State probate court as to the paternity of a child is not binding on the Administration, since under Indiana law, the Secretary neither has an interest in the estate nor could he have been made a party to the probate court proceedings, and (2) the child met neither condition of State law for obtaining inheritance rights as an illegitimate child since he was born posthumously and his parents did not marry; accordingly, the child does not have the status of "child" of the worker for social security purposes and therefore is not entitled to child's insurance benefits.

BEAMER, District Judge:

This is a suit to review a final decision of the Secretary, denying the plaintiff's claim on behalf of her daughter for child's insurance benefits under Section 202(d) of the Social Security Act, 42 U. S. C. § 402(d).

The only issue before the Court is whether the Secretary was correct in determining that plaintiff's daughter did not have the status of a "child" relative to inheritance of the deceased wage earner's intestate personal property under the law of the State where the wage earner died as required by 42 U. S. C. § 416(h) (2).

Title 42 U. S. C. § 402(d) (1) concerns child's insurance benefits and provides in pertinent part:

"Every child (as defined in 42 U. S. C. § 416(e)) . . . of an individual who dies as a fully insured individual shall be entitled to child's insurance benefits.”

...

Title 42 U. S. C. § 416(e) provides:

"The term 'child' means, (1) the child or legally adopted child of an individual..

99

Title 42 U. S. C. § 416(h) (2) (A) provides:

...

"In determining whether an applicant is a child for purposes of this title, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property.. .. if such insured individual is dead, by the Courts of the State in which he was domiciled at the time of his death. . . . Applicants who according to such law would have the same status relative to taking intestate personal property as a child ... shall be deemed such." [*]

The wage earner in this case was Martin Trask, Jr., who died July 22, 1962, while domiciled in Indiana as a result of an auto collision. Martin Trask and Sharon Schultz, plaintiff herein, were never married ceremonially. They started seeing each other, according to the transcript, in June, 1961. In September, 1961, they took a trip to California "to elope and get married." They lived together while in California but never did actually get married. They then came back to Indiana and lived together until Martin's death in July, 1962. Diana Trask, for whose benefit this action is brought, was born about three months after his death, in October, 1962.

On December 18, 1962, a petition was filed in the Juvenile Court of Lake County to establish the paternity of Diana Lynn Trask and the Court entered judgment on the same date declaring Martin Trask to be the father of Diana.

[*] Section 339, P.L. 89–97, enacted July 30, 1965, added section 216(h) (3) (C) to the Social Security Act (42 U.S.C. 416 (h) (3) (C)) which provides that after August 1965 an illegitimate child may be deemed the "child" of a deceased insured worker for benefit purposes, regardless of his status under State law, provided that: (1) prior to his death the worker had acknowledged in writing that the child is his son or daughter, or the worker had been decreed by a court to be the father of the child, or had been ordered by a court to contribute to the child's support because the child is his son or daughter; or (2) it is shown by other satisfactory evidence that the worker is the child's father and at the time of his death he was living with the child or was contributing to his support. [Ed.]